With a consultation on new rules having just closed, Amanda Johnson and Kate Tompkins provide a useful reminder of the factors to be taken into account when approaching the multiple problems arising from cases involving vulnerable witnesses.
Any analysis of the work of a family lawyer would identify that part of the job which is not taught but is driven by a desire to shield and protect the vulnerable party; the part where you do all you can to prevent your client as a victim of domestic abuse from coming into direct contact with the perpetrator. It is the part of the job that means you are alert to whether your client’s reported mental illness, learning difficulties or substance misuse are impacting on their ability to take part in proceedings.
The facts of M (A child)  EWCA Civ 1905 are illustrative: this was an appeal by a father against findings made in a fact finding hearing when no protective measures had been put in place contrary to the recommendation of an expert. The father had a low IQ and limited abilities. There had been three expert opinions offered in respect of father: the first said he was competent to instruct and give evidence; the second said not competent to instruct but competent to give evidence; the third report was produced to deal specifically with whether or not he could give evidence. The psychologist reported that father’s ability to give evidence had deteriorated due to the stress and anxiety caused by proceedings. He should be treated as a vulnerable witness and proposed the use of screens or a video-link in order to minimise the anxiety of appearing in front of a number of people and a supporter or intermediary to help him understand what was being asked.
There was in fact no support made available and an application to adjourn was refused with the Judge’s response “well, we will all try, counsel and myself, to make it easy for the witness” (Lord Justice Thorpe was sympathetic to the approach BUT this was felt to be high risk judicial management). The Childs Guardian was called on to be an intermediary but had no experience or training and became increasingly uncomfortable with the role. No proper measures had been put in place and the psychologist was called to give evidence after an application by father’s counsel to abort the hearing because father’s article 6 rights had not been protected. The psychologist said that father’s competence to give evidence would have fluctuated during the trial but overall he lacked capacity due to a lack of protective measures being put in place. In short the Court of Appeal thought that the approach taken was wrong but were understanding of how it had happened in a busy court.
The new rules are an attempt to assist in this part of the job.
The new rules
The catalyst for the new rules and practice directions was the 12th View from the President’s Chamber (9 June 2014). The President identified the work done in criminal courts and recognised that the same witness, with the same vulnerabilities, is treated differently in the criminal courts and family courts with family courts coming a poor second. The response was to set up a Working Group to consider how the advocacy training in the criminal courts could be utilised in family courts. The Working Group set up by the President was headed by Hayden J and Russell J and comprised of members of the judiciary from various levels.
The detail of the proposed new rules is set out in appendix 3 to the March 2015 report of the working group. The Family Procedure Rule Committee considered the proposed new rules and made some amendments. Those draft new rules are contained in a consultation that closed on 25 September 2015.
The objective of the new rule is to make provision for vulnerable parties and witnesses and children to assist them in improving the quality of their evidence and to participate fully in proceedings; entitlement to assistance will depend upon age, incapacity or grounds of fear or distress.
The court will be required to consider whether the quality of evidence of the party or witness will be diminished by any of the following circumstances:
- A person suffers from a mental disorder or otherwise has a significant impairment of intelligence or social functioning;
- social and cultural background and ethnic origins of the person;
- their domestic circumstances and religious beliefs;
- medical treatments they are undergoing or disabilities from which they might suffer;
- any behaviour towards the party or witness on the part of any other party to the proceedings;
- any other family members of that person;
- any family members or associates of other parties to the proceedings.
The Working Group recognised that further work will need to be carried out by them on modernising the way in which the evidence of children and young people is gathered and put before the family courts. They send the message that this process will ultimately require a substantial change in the prevailing culture in respect of the evidence of children on the part of judges, CAFCASS, social services and others who work in the family courts. The Working Group intend to make further recommendations on how this may be put in place after further consideration and wider consultation; they hoped to have such work completed by Summer 2015.
The current recommendations
- That there should be a new FPR in respect of Vulnerable and Intimidated Witnesses/Parties and children supplemented by PDs and guidance approved by the President, the new rule will be part of the overriding objective;
- The procedure, practice and guidance for provision of special measures, support and/or assistance for vulnerable witnesses, including children, to give their best evidence should form part of the existing PDs where possible, such as by amendment to the Child Arrangements Programme or Public Law Outline;
- There shall be training for advocates; and
- There shall be training for the judiciary in the form of an additional module during the Judicial College training for Private and Public law and online material.
Recommendations of the Working Group: Children Meeting the Judge
The Working Group found that children and young people meeting judges in the family justice system will not provide the increased role that should be played by children and young people now the family courts have entered the 21st century.
The Working Group recommended that:
- There be a new PD 3C (to replace the 2010 Guidelines) for children seeing judges in the Family Court and Family Division. The new PD will reflect the Court of Appeal’s decision in Re KP  EWCA Civ 554. It will include provisions setting out in clear terms the status of the communication between judge and child; including at what point during the proceedings any meeting should take place; the persons who should be present and the purpose of any meeting. There will also be guidance in respect of the manner in which the court’s decision is to be communicated to the child or young person;
- There should be training for all family judges, at all levels, in seeing children; as was anticipated when the 2010 Guidelines were published. It is recommended that the considerable experience of judges in criminal trials who regularly meet child witnesses to explain the procedure and without eliciting any evidence from them should be utilised in the drafting of the PD; and
- Each Designated Family Judge should nominate a judge within their court to deal with and encourage ways of the public and schools having access to the courts and judges on open days and school visits.
How will the new rules help?
The rules suggest the following protective measures:
i) preventing a party or a witness from seeing the other party or parties;
ii) allowing a party or a witness to participate in hearings and to give evidence
iii) using a device to help a party or witness to communicate;
iv) providing for a party to participate in proceedings through an intermediary;
v) providing for a party or witness to be questioned through an intermediary;
vi) admitting recorded video evidence;
What must the advocate do?
Everyone is responsible for everyone else, it may not be your client who is entitled to assistance but you may spot that another party or witness is and you must bring that to the attention of the court. Recently by virtue of where I sat in the courtroom I was able to observe that a witness was intimidated by another party whilst she was giving evidence. The positioning of screens produced a change in the quality of her evidence.
The rules are however not a mandate for indulgence of the lily livered. The procedural requirements for seeking assistance are contained in the rules as follows:
An applicant for directions or orders for measures to assist parties and/or witnesses must —
(a) explain why the party or witness is entitled to assistance;
(b) explain why the measure or measures sought would be likely to improve the party’s ability to participate in the proceedings;
(c) explain why the measure or measures sought would be likely to improve the quality of the party or witness’ evidence;
(d) propose the measure or measures that would be likely to maximise as far is practicable the quality of that evidence;
(e) report any views the party or witness has expressed about their entitlement to assistance or the likelihood that the measure or measures sought would improve their evidence.
It is recognised that a party's or witnesses' abilities may fluctuate during the course of a hearing and we should not be timid about making an application after the start of a final hearing.
When considering children the court must consider at the outset the role a child should play whether they are a party or a witness before considering what measures may be appropriate for giving evidence.
It may be that the decision, for example, is that a child should in fact see the judge rather than give evidence using special measures.
This is a very brief outline and is intended just to warn of what is coming. A good source of guidance is Toolkit 13 found on the Advocates Gateway www.theadvocatesgateway.org. It is no doubt positive for the family court if a little difficult to see how it fits in a world of decreasing time and money. We now have the tools and we must use them to protect the vulnerable users of the family court.
The new rules will represent a substantial change in the prevailing culture in respect of hearing the views and evidence of children, even very young children, in the family courts. Judges, advocates and other professionals must be alert to the need to identify when and how the views or evidence of a child should be heard. This should be done at the earliest opportunity so that ground rules can be set to assist the child to participate in proceedings.