What Cross-Examination Is
Cross-examination is the questioning of the other party's witnesses after they have given their evidence. It is your opportunity to challenge the account given in the other party's witness statement and oral evidence, to put your version of events to them, and to identify inconsistencies in their account.
In the family court, cross-examination by a litigant in person is subject to restrictions in cases involving domestic abuse allegations. The Domestic Abuse Act 2021 introduced a prohibition on direct cross-examination in certain circumstances. The court will explain the procedure applicable to your case.
Preparing Your Questions
Do not improvise your cross-examination. Prepare your questions in advance, in writing. Go through the other party's witness statement paragraph by paragraph and identify every factual claim you dispute. For each disputed claim, prepare a question that either challenges it or invites the witness to accept your version.
Organise your questions by topic, not by the order they appear in the statement. Group related questions together. Start with the topics where you have the clearest evidence contradicting the other party's account.
The Types of Question to Ask
Closed questions are best for cross-examination. A closed question invites a yes or no answer and keeps control with the questioner. "On the 14th of March, you sent me a text message saying the child was fine -- is that right?" is better than "Can you tell me about the messages you sent in March?"
Put your own version of events to the witness: "My case is that contact was going well until you started making allegations in December -- do you accept that?" This is called putting your case and the judge will expect you to do it.
What to Avoid
Do not ask questions you do not know the answer to. If there is a risk the witness will say something that damages your case, do not ask. Cross-examination is not the time for open-ended exploration.
Do not argue with the witness. If they give an answer you disagree with, note it, move on, and address it in your closing submissions. A litigant who becomes visibly angry during cross-examination damages their own credibility.
Using Documents
If you have documents that contradict the witness's account, this is the moment to use them. Show the witness the document, ask them to confirm they can see it, then put the contradiction directly: "In your statement you say X. This document shows Y. Can you see that?"
Documents must be in the agreed hearing bundle. Know exactly where each one appears by page number. Prepare your documents in advance.
The Domestic Abuse Restriction
Where there are allegations of domestic abuse, the court may prohibit direct cross-examination. In that case, the court will appoint a legal representative to conduct cross-examination on your behalf, or questions may be submitted in writing for the judge to put to the witness.
If the restriction applies in your case, you still need to prepare your questions in full. You will give them to the appointed legal representative or submit them to the court.