The Prohibition of Cross-Examination in Person (Fees of Court-Appointed Qualified Legal Representatives) Regulations 2022

Citation, commencement, interpretation and extent E+W

1.—(1) These Regulations may be cited as the Prohibition of Cross-Examination in Person (Fees of Court-Appointed Qualified Legal Representatives) Regulations 2022.

(2) These Regulations come into force on the day on which and immediately after sections 65 and 66 of the Domestic Abuse Act 2021(1) come into force.

(3) In these Regulations—

“1984 Act” means the Matrimonial and Family Proceedings Act 1984;

“1989 Act” means the Children Act 1989(2);

“2003 Act” means the Courts Act 2003;

“2012 Act” means the Legal Aid, Sentencing and Punishment of Offenders Act 2012(3);

“advocacy services” means cross-examination carried out by a qualified legal representative pursuant to appointment under section 31W(6) of the 1984 Act(4) or section 85K(6) of the 2003 Act(5), and fees and rates for advocacy services include remuneration for preparatory work, attendances at preliminary hearings and cross-examination hearings, and [F1 time spent] travelling and waiting in relation to those services;

“authorised” means authorised by the President of the Family Division or the Lord Chief Justice to conduct particular business, under powers granted by rules made under section 31D of the 1984 Act(6);

“cancelled hearing” means a preliminary hearing, or a cross-examination hearing, which was cancelled at any time prior to the scheduled time and date;

“completed hearing” means a preliminary hearing, or a cross-examination hearing, which was held and completed;

[F2 “costs” means travelling expenses, overnight accommodation costs, overnight subsistence allowance and any other items of expenditure properly incurred by the qualified legal representative in connection with their appointment by the court under the 1984 Act or 2003 Act.]

“cross-examination hearing” means a hearing involving cross-examination of a witness by the qualified legal representative;

[F3 “fees” means the sums payable for advocacy services, calculated in accordance with Parts 1 to 3 of the Schedule to these Regulations.]

“judge of circuit judge level” means—

(a)

a judge appointed under section 16 of the Courts Act 1971(7);

(b)

a circuit judge who is authorised, where applicable;

(c)

a Recorder who is authorised, where applicable; or

(d)

any other judge of the family court authorised to sit as a judge of circuit judge level in the family court.

“judge of district judge level” means—

(a)

a judge appointed under section 6 of the County Courts Act 1984(8);

(b)

the Senior District Judge of the Family Division;

(c)

a district judge of the Principal Registry of the Family Division;

(d)

a person appointed to act as deputy for the person holding office referred to in sub-paragraph (c) or to act as a temporary additional officer for any such office;

(e)

a district judge who is authorised, where applicable;

(f)

a deputy district judge appointed under section 102 of the Senior Courts Act 1981(9) or section 8 of the County Courts Act 1984(10) who is authorised, where applicable;

(g)

an authorised District Judge (Magistrates’ Courts); or

(h)

any other judge of the family court authorised to sit as judge of district judge level in the family court.

“judge of High Court judge level” means—

(a)

a deputy judge of the High Court;

(b)

a puisne judge of the High Court;

(c)

a person who has been a judge of the Court of Appeal or a puisne judge of the High Court who may act as a judge of the family court by virtue of section 9 of the Senior Courts Act 1981;

(d)

the Senior Presiding Judge;

(e)

the Senior President of Tribunals;

(f)

the Chancellor of the High Court;

(g)

an ordinary judge of the Court of Appeal (including the vice-president, if any, of either division of that court);

(h)

the President of the Queen’s Bench Division;

(i)

the vice-president of the Queen’s Bench Division;

(j)

the President of the Family Division;

(k)

the Master of the Rolls; or

(l)

the Lord Chief Justice.

“justices’ legal adviser” means a person authorised by the Lord Chancellor to exercise functions under section 28(1) of the 2003 Act(11);

“lay justice” means an authorised justice of the peace who is not a District Judge (Magistrates’ Courts);

“preliminary hearing” means a case management hearing, or other hearing, not involving cross-examination by the qualified legal representative;

“private law (children) case” means family proceedings under—

(a)

the enactments described in paragraph 10 (unlawful removal of children) or 13 (protection of children and family matters) of Part 1 of Schedule 1 to the 2012 Act(12);

(b)

Part 1 or 3 of the Family Law Act 1986(13), to the extent the matter relates to a child;

(c)

Part 1 or 2 of the 1989 Act, other than section 15 of, and Schedule 1 to, that Act; or

(d)

section 51A of the Adoption and Children Act 2002(14);

“private law (domestic abuse) case” means family proceedings for the protection of a person in relation to another with whom they are associated (within the meaning of section 62 of the Family Law Act 1996(15)), including those under—

(a)

Part 4 or 4A of the Family Law Act 1996(16);

(b)

Part 1 of Schedule 2 to the Female Genital Mutilation Act 2003(17); or

(c)

Part 3 of the Domestic Abuse Act 2021;

“private law (finance and other) case” means any family proceedings which are not a private law (children) case or a private law (domestic abuse) case;

“public law (other) case” means—

(a)

proceedings under the enactments described in paragraph 1 of Part 1 of Schedule 1 to the 2012 Act(18) (care, supervision and protection of children), to the extent the matter is not a public law (section 31 care proceedings) case;

(b)

proceedings relating to the inherent jurisdiction of the High Court to the extent that the matter relates to a child; or

(c)

proceedings under the enactments described in paragraphs 17 (transitional EU arrangements and international agreements concerning children) or 18 (transitional EU arrangements and international agreements concerning maintenance) of Part 1 of Schedule 1 to the 2012 Act(19);

“public law (section 31 care proceedings) case” means—

(a)

proceedings or potential proceedings under section 31 of the 1989 Act; or

(b)

proceedings under the enactments described in paragraph 1 of Part 1 of Schedule 1 to the 2012 Act where—

(i)

the proceedings are being heard with those under section 31 of the 1989 Act;

(ii)

applications under those enactments are made within proceedings under section 31 of the 1989 Act; or

(iii)

orders under those enactments are being sought as an alternative to an order under section 31 of the 1989 Act;

[F4 “terminated appointment” means an appointment of a qualified legal representative which was terminated by the court before a hearing.]

(4) These Regulations apply to the payment out of central funds of sums in respect of [F5 fees and costs payable to a qualified legal representative in connection with their appointment by the court under the 1984 Act or 2003 Act.]

(5) These Regulations extend to England and Wales.

Textual Amendments

F1 Words in reg. 1(3) inserted (2.1.2024) by The Prohibition of Cross-Examination in Person (Fees of Court-Appointed Qualified Legal Representatives) (Amendment) Regulations 2023 (S.I. 2023/1319), regs. 1(2), 2(2)(a)

F2 Words in reg. 1(3) inserted (2.1.2024) by The Prohibition of Cross-Examination in Person (Fees of Court-Appointed Qualified Legal Representatives) (Amendment) Regulations 2023 (S.I. 2023/1319), regs. 1(2), 2(2)(b)

F3 Words in reg. 1(3) substituted (2.1.2024) by The Prohibition of Cross-Examination in Person (Fees of Court-Appointed Qualified Legal Representatives) (Amendment) Regulations 2023 (S.I. 2023/1319), regs. 1(2), 2(2)(c)

F4 Words in reg. 1(3) inserted (31.5.2024) by The Prohibition of Cross-Examination in Person (Fees of Court-Appointed Qualified Legal Representatives) (Amendment) Regulations 2024 (S.I. 2024/624), regs. 1(2), 2(2) (with reg. 3)

F5 Words in reg. 1(4) substituted (2.1.2024) by The Prohibition of Cross-Examination in Person (Fees of Court-Appointed Qualified Legal Representatives) (Amendment) Regulations 2023 (S.I. 2023/1319), regs. 1(2), 2(3)

Commencement Information

I1 Reg. 1 in force at 21.7.2022, see reg. 1(2)

(1)

2021 c. 17.

(2)

1989 c. 41.

(3)

2012 c. 10.

(4)

Section 31W was inserted by section 65 of the Domestic Abuse Act 2021.

(5)

Section 85K was inserted by section 66 of the Domestic Abuse Act 2021.

(6)

Section 31D was inserted by section 17(6) of, and paragraph 1 of Schedule 10 to, the Crime and Courts Act 2013 (c. 22).

(7)

1971 c. 23

(8)

1984 c. 28; Section 6 was substituted by section 14 of, and paragraph 1(1) of Schedule 3 to, the Constitutional Reform Act 2005 (c. 4) and subject to amendments that are not relevant to these Regulations.

(9)

1981 c. 54; Section 102(1) was substituted by section 56 of, and paragraphs 1 and 3 of Schedule 11 to, the Tribunals, Courts and Enforcement Act 2007 (c. 15) and subject to amendments that are not relevant to these Regulations.

(10)

1984 c. 28; Section 8 was substituted by paragraph 42 of Schedule 18 to the Courts and Legal Services Act 1990 (c. 41) and subject to amendments that are not relevant to these Regulations.

(11)

Section 28 was substituted by section 3 of, and paragraph 26 of Schedule 1 to, the Courts and Tribunals (Judiciary and Functions of Staff) Act 2018 (c. 33).

(12)

Paragraph 13(1)(g) was added by section 9(12)(b) of the Children and Families Act 2014 (c. 6).

(13)

1986 c. 55.

(14)

2002 c. 38. Section 51A was inserted by section 9(1) of the Children and Families Act 2014 (c. 6).

(15)

1996 c. 27.

(16)

Part 4A was inserted by section 1 of the Forced Marriage (Civil Protection) Act 2007 (c. 20).

(17)

2003 c. 31. Schedule 2 was inserted by section 73(2) of the Serious Crime Act 2015 (c. 9).

(18)

Paragraph 1(1)(k) was inserted by S.I. 2016/413.

(19)

Paragraph 18 was amended by S.I. 2013/748.