Letter to Editor, Family Law
Step one: work out how to pay your ‘intermediaries’
In ‘Safeguarding measures, intermediaries and vulnerable witnesses: foot notes from the trenches’ Gillian Geddes (‘GG’) discusses the proposed changes to Family Procedure Rules 2010 (‘FPR 2010’). She was writing before the draft rules – namely Family Procedure (Amendment No X) Rules 2015 (https://consult.justice.gov.uk/digital-communications/draft-amendments-to-family-procedure-rules/supporting_documents/annexachildrenvulnerablewitnessesfprcdraftrule.pdf) were out. Their aim is to amend FPR 2010 by adding Part 3A – Children and vulnerable persons: participation in proceedings and giving evidence (‘Pt 3A’; and see ### update on this by David Burrows at  Family Law ###).
GG deals only with a party whose participation is ‘likely to be diminished’ (as the draft rules term her client’s category: see Pt 3A r 3A.4):
Court’s duty to consider how a party can participate in the proceedings
3A.4.—(1) The court must consider whether a party’s participation in the proceedings is likely to be diminished and, if so whether it is necessary to make one or more directions in paragraph (2) to assist the party. ..
GG gives an example of one such party whose participation is diminished by her own disabilities. This must have been conducted under the current FPR 2010 case management rules (ie FPR 2010 rr 1.4, 4.1 and 12.12). GG’s article is illuminating on all this and shows how, already, the common law can respond to the sensitive handling of vulnerable witnesses. GG deals with an intimidated party’s ‘participation’ where she is said, according to Pt 3A, to be ‘diminished’. Alongside (1) intimidated parties, Pt 3A deals also with (2) children: their participation in proceedings and (3) their views; and (4) witnesses said to be ‘intimidated’.
The main part of GG’s article is to explaining how the ‘intermediary’ (per Pt 3A.7(1)) may be intended to work, by illustration from one case. Like FPRC she does not consider the effects on common law principles of what is proposed. Common law – and thus statutory – changes are inevitable.
FPRC’s powers are limited by Courts Act 2003 ss 75 and 76. The ‘measures’ proposed are likely to require primary legislation (and see eg closed material procedures, special advocates and public interest immunity: all implied by r 3A.7). Grubby things like how and by whom ‘intermediaries’ are to be paid, if by HMCTS, will certainly require primary legislation. Money and the implied in-roads into the common law (see discussion of this in eg Attorney General v Leveller Magazine Ltd  AC 440 and Re A (Sexual Abuse: Disclosure)  UKSC 60,  1 FLR 948) are clearly outside the rule-making powers of ss 75 and 76; and thus FPRC is left stranded.
‘Duty’ on legal representatives and Jaffray rule
My first worry relates to drafting detail. GG says as a fact that it is proposed that the overriding objective is to be amended to emphasise what she perceives as a new ‘duty’ on ‘legal representatives and litigants in person (sic)’ to identify the ‘intimidated’ (how the rules describe ‘vulnerable’, of parties and witnesses. As I read the draft rules, it is – on the contrry – the court which has this ‘duty’ (rr 3A.4(1) and 3A.5(1)). I will leave research into whether the FPRC can itself create extra professional duties for now; but I am as certain as I can be that for a rule committee to create duties for subjects of the Crown (ie LiPs) without primary legislation would be of dubious vires. I will say no more say that the Jaffray rule surely applies here (Jaffray v The Society of Lloyds  EWCA Civ 586: rules cannot change the jurisdiction of the court, still less the law. Rules can only regulate procedure which delivers the law and justice.)
GG’s sources for her assertion are not stated, so pending revelation of the sources, this ‘duty’ must be treated with scepticism.
Extension of overriding objective
The FPRC meeting of 15 June 2015, when consultation and amendment drafting was fully considered, say of plans for overriding objective only:
Judge [HHJ] Raeside suggested that FPR Part 1 (Overriding Objective) be adjusted so that the duty to deal with cases justly and fairly included reflecting the participation and involvement of children and vulnerable witnesses.
Lord Justice Ryder thought that the way the proposed rules had been drafted obviated the need to delve into the overriding objective. However, he considered it entirely reasonable to raise the issue on consultation.
The Chair observed that, although the overriding objective referred to the court having regard to any welfare issues involved, there was no actual mention of children. He suggested a quick proposed amendment to the overriding objective be drafted before consultation.
The paper which accompanies the consultation Draft Amendments to Family Procedure Rules http://www.familylaw.co.uk/system/redactor_assets/documents/3209/Draft_Amendments_to_Family_Procedure_Rules_consultation_paper.pdf, in one of its specimen consultee questions on reads:
The Committee recognises that, as currently drafted, the overarching [sic] objective [at FPR 2010 r 1.1) does not refer to children. Some committee members have raised concerns that this is an omission and would like to see the overriding objective updated to reflect the need to consider children within proceedings. (a) Should the overriding objective be amended so as to emphasise consideration by the court of participation by children in proceedings?
This raises two separate points:
- Law – Children Act 1989 s 1 (not mentioned here) seems to cover the law; and, for that matter, whatever a ‘code’ like r 1.1 says, the law remains the starting point.
- Procedure – a child’s ‘participation in proceedings’ is the issue here; and that surely should be considered is at r 3A.3 where it belongs. It cannot be left to the aspirations of r 1.1 principles?
Intermediary and participation of a party in proceedings
The main part of GG’s article is a discussion of one ‘intermediary’ case (per Pt 3A r 3A(7)); but, in the current state of legal aid law and family proceedings practice, real questions on intermediaries and their funding must precede the lengthy discussion introduced by GG.
The term ‘intermediary’ and what they are to do is one of the ‘measures’ available to the court in (Pt 3A r 3A.7(1)(d) and (e)) under Part 3A. What an intermediary actually is, how s/he is defined and what s/he is expected to do is not defined. Much is covered already in various statutory, common law and regulatory guises. Why does specific provision need to be made for family cases? Well, of course, it doesn’t. All it does is to make life more complicated for courts and parties, where proper case management training for judges might resolve a lot of the points. They already have their required duties and a set of powers in FPR 2010 rr 1.4 and 4.1. How much of what is said of case management for adult witnesses and parties in Pt 3A is outside those case management rules?
Whatever ‘intermediaries’ are, most of them will require to be paid. Only three weeks before the FPRC meeting the Court of Appeal poured a heavy shower on Lord Chancellor funding (Re K & H (Children)  EWCA Civ 543 (22 May 2015)). On the facts of that case ‘help for a party … to be questioned in court with the assistance of an intermediary’ (r 3A.7(1)(e)) cannot be funded by the Lord Chancellor (eg under Matrimonial and Family Proceedings Act 1984 s 31G(6), mentioned in r 3A.6(1)(i) as a case management matter).
Funding of intermediaries
In Re D (A Child)(No 2)  EWFC 2, Sir James Munby P gave ‘guidance’ as to funding, says GG. Yes, he did; and in Suffolk County Council v The Mother and ors (reported as Re R (translation of documents in proceedings))  EWFC B112 HHJ Roberts, Family Court sitting at Chelmsford made an order for LAA funding (but – crucially, I fear – the judge overlooked the fact that the payer party (ie Legal Aid Agency (‘LAA’)) was not a party to the process and thus that her order (as far as I can see) had no foundation; and see eg http://www.familylaw.co.uk/news_and_comment/care-proceedings-bundles-a-duty-to-pay#.VdkT6vmqqko)). On a related point: in Re M (A Child)  EWFC 71 (04 August 2015), Sir James Munby P explains briefly how a vulnerable party was not even spotted by the court (or her advisers?) for (say) EDF legal aid funding (Legal Aid Sentencing and Punishment of Offenders Act 2012 s 10(3)); and she was unable to pay the costs of her proceedings. If, as GG says, the Court of Appeal did not overrule Sir James’s guidance in Re D – meaning, in law? – he does so himself in Re M (§).
The scheme will not work if it is not funded. I beg everyone to put this in bold across their response to the consultation. Detail of what is needed for funding and what statutory changes this requires – in my opinion – will be set out in detail on my blog https://dbfamilylaw.wordpress.com/; but in the meantime all practising family lawyers should please try to learn by heart the words of Collins J in IS v The Director of Legal Aid Casework & Anor  EWHC 1965 (Admin) at §. Of the classic intermediary – special advocates (on instructions from the Attorney-General (Attorney General’s Memorandum of 19 December 2001  Fam Law 229 (FCP at 2923 is one of the few printed sources of this), closed material procedures eg where a witness might be ‘diminished by a violent parent/partner on disclosure of documents or police information (see eg Re T (Wardship: Impact of Police Intelligence)  EWHC 2440 (Fam),  1 FLR 1048, McFarlane J); and limited forms of public interest immunity (but see Browning v The Information Commissioner & Anor  EWCA Civ 1050 (30 July 2014): of all this FPRC says nothing. Anonymity may be implied by r 3A.7(1); but how much notice have FRPC taken of the issues which that calls into question, even in private proceedings: see eg Attorney General v Leveller (above) with its tight limitation by our open justice principle? What of the ideas put up by Lady Hale in the classic recent Supreme Court vulnerable witness case: Re A  (above)?
And so the funding questions go on. A reply from the FPRC secretariat on what the Committee considered on costings, and of party funding, is awaited; and in absence of that a FoI request will be made. GG does not cost the lengthy exercise she describes nor tells us by whom the case was paid; or, indeed, whether the expenditure on lawyers was covered.
Costing of new legislation
Most statutory schemes must be costed. The consultation document says:
 The Committee acknowledges that court rules cannot provide a requirement or entitlement to funding as this is within the competence of Parliament. In addition the Committee has had some general advice from the MoJ and HMCTS as to what provisions are available. In relation to eligibility the rules have been drafted to avoid situations where a child or vulnerable party/witness does not get assistance as a result of being outside a more tightly drawn set of criteria….
I can see no evidence in the minutes of the committee being aware of any contact within Ministry of Justice with LAA on all this. FPRC considered endorsement onto the case management order of the court’s reasons for any decision (not what the X version says). A piqued Sir James is minuted as saying: ‘Orders should also record where a measure was needed but resources were not available to provide it.’ The draft rules do not say this either.
The draft is opaque to say the least. The minuted may explain a little what the FPRC members though they were doing; for the present draft r 3A.11(2) says:
(2) If a direction for a measure is considered by the court to be necessary but the measure is not available to the court, the court must set out in its order the reasons why the measure is not available.
It will be interesting to see what the final rules say. Will Sir James’s comment find its way into a practice direction, or someone’s case management judgment? And how is the court to know that resources are not available, especially in a Children Act 1989 Part 1 and 2 (‘private law’) case?
Without guaranteed funding – and this requires co-operation from the Lord Chancellor and the Treasury – I cannot see the intermediary aspect of all this taking off. The VW&CWG started by expecting to make one new rule to cover all this. Now they have 11. They need a good bit more, to help those whom family courts should be helping; and they need primary legislation.
The present draft will not butter many intermediaries’ parsnips (especially where they are lawyers). And without funding, most of the ‘measures’ (Pt 3A r 3A.7(1)) which involve intermediaries will remain still-born (save for Munby P’s endorsement of ‘no money to pay an intermediary’ on his order). That helps no ‘intimidated’ witness.
A clear definition of what an intermediary is, some statutory provision to confirm departure from the common law and open assertions on state funding: this would be a good start. It remains a ‘start’, since on the sine qua non of funding, FPRC cannot be said even to have reached ‘Go’.