OF VULNERABLE AND INTIMIDATED WITNESSES, AND CHILDREN

Hearing from children and vulnerable witnesses in the family courts: working group

Current procedural reforms in the family courts and the Court of Protection are looking in particular at three issues; though not necessarily with any real sense of the interrelation of the three:

• The treatment of ‘vulnerable witnesses and children’
• ‘Transparency’ (by which is meant the extent to which proceedings in the courts should be held in private); and
• Legal aid.

Each subject is interdependent and should be of concern to both courts. That which is of immediate concern to the courts’ administrators – who are also in many instances also the judges of the court – is that of ‘vulnerable [and intimidated] witnesses and children’. The two – or three even (as explained below) – separate subjects are bracketed together, though each raise different questions; and, surely, they require different solutions? For example where children are parties to proceedings legal aid will not be an issue; whereas for many ‘vulnerable’ individuals legal aid will by no means be guaranteed; and for ‘intimidated witness’ there may be a call for the Attorney-General to be involved.

A working group (chaired by two judges) set up by Sir James Munby P has recently reported on these two subjects: Report of the Vulnerable Witnesses and Children Working Group February 2015 (published in March 2015 by Judiciary of England and Wales). The Group accepted its own ‘conclusions’ (yes really – para [27]). It proposes a draft set of rule changes which it commends to the Family Procedure Rules Committee (‘FPRC’).

The interim report of the working group can be found at https://www.judiciary.gov.uk/publications/president-of-the-family-divisions-consultation-interim-report-of-the-children-and-vulnerable-witnesses-working-group-31st-july-2014/ . My own response to that interim report is at https://dbfamilylaw.wordpress.com/2014/10/05/consultation-on-children-and-vulnerable-witnesses-court-proceedings/ .

The report

The report combines judicial concerns in relation to children meeting judges in the family courts and – which is not necessarily the same thing (as the report stresses) – children giving evidence in court; and the need ‘to address the wider issue of vulnerable people giving evidence in family proceedings’. The report draws attention to practices in the criminal courts where – as Roderic Wood emphasised in H v L and R [2006] EWHC 3099 (Fam) [2007] 2 FLR 162 – the rules and prevailing procedures are much more appropriate to children. It singles out the illuminating comments on children evidence of Lord Judge LCJ in R v Barker [2010] EWCA Crim 4 at paras [38] to [43]. (It is difficult to suggest a more helpful starting point for the Group’s work than what was said by Lord Judge.)

The report points out (para [10]) that ‘particularly in public law’ (sic) the adults as well as the children ‘are frequently “vulnerable witnesses”’ (a cross-reference is given here which leads nowhere’; yet no attempt is made in the text of the report or in the draft rule to define what is meant by this. For example reference is made (at para [13]) to the recent Re K and H (Children: unrepresented father: cross-examination of child) [2015] EWFC 1 His Honour Judge Bellamy sitting as a Deputy High Court judge; yet the issue in that case was not the particular vulnerability of a witness but the appropriateness of a judge cross-examining a witness for the father applicant and the funding of an advocate to carry out that examination for the court (Matrimonial and Family Proceedings Act 1984 s 31G(6)(b)).

Did the Working Group intend to look at the particular funding issues which Re K and H throws up? ‘Funding’ is touched upon as ‘a matter of concern and some controversy’ (para [20]). Its ‘ad hoc’ nature is said to be ‘unsatisfactory’. But no recommendations are made by the Group as to how funding controversies might be resolved in the particular instances which arise; and, for example, no reference to the role which the Attorney-General (looked to by Roderic Wood J in H v L) might perform in assisting the court.

The Group reviews the existing guideline for judges in seeing children and finds them to be flawed. They point out (para [24]) the importance of distinguishing between the fact that the judge is not intended to gather evidence; but should consider their wishes and feelings. So, says the Group, ‘There is a need for the evidence of children and young people to be put before the family court as it would be in criminal proceedings’ ([26]). The report concluded on this subject:

It is the view of the [Group: WG] that the Family Court has fallen behind the criminal courts in its approach to their evidence…. Those young people that the WG heard from do not expect, or even want, the judge to do as they say; they want to know that they have been listened to and this perceived (and in many cases actual) defect cannot be cured with by meeting the judge or tribunal alone if at all. To hear a child must mean to hear her or his evidence and if the child/young person is not going to give oral evidence there must be provision for their evidence to be heard as directly as possible without interpretation by the court appointed officers or others.

Of terminology: the Group preferred to retain its existing terms – ‘children’ and ‘vulnerable witnesses’, with addition to the latter of ‘intimidated witnesses’ ([30]). This means incorporating into any definition to what the proposals are intended to cover as a ‘witness’ includes a party, and may involve witnesses who are examined for the court (as in Re K and H). It will involve FPRC is a careful definition of terms (a question which the Group’s drafting has so far evaded: its draft rule has no definition of to what the rule is addressed and as to exactly when it will apply (para [35](v)).

Rule changes

Given the nature of the subject-matter the FPRC are urged to recall their pre-eminent statutory requirement (as set out in Courts Act 2003 s 75(5)): that their rule making powers should be used in such a way as to set out rules which ensure that ‘(a) the family justice system is accessible, fair and efficient, and’ that ‘(b) the rules are both simple and simply expressed’. Quite apart from its poor grammar, the present draft is not by a standard which most lay readers (and indeed many lawyers) would understand ‘simple or simply expressed’. For example, the long sentences seem to leave its own drafter confused; it does not define what is the meaning of the subject matter: namely (1) ‘vulnerable witnesses’, (2) ‘children’ (which will not be the same as the definition in Children Act 1989 s 105) and ‘intimidated witnesses’; and it leaves important matters vague ‘such other matters which appear to the court to be relevant’ (draft r 3B.1(3)(d)). (One of the great advances with the drafting of Civil Procedure Rules 1998 was short sentences and a number of one sentence rules. The drafting of the proposed Family Procedure Rules 2010 Part 3B goes back to an earlier unreconstructed period of rule drafting.)

It is sincerely to be hoped that the present drafters of the [35](v) will carefully reconsider their draft and reframe it with simplicity, clarity and aptness to the subject matter in mind. The words of Lord Judge LCJ at [38] in R v Baker (above) provide an excellent starting point.

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