Consultation on draft amendment rules
So what is this consultation all about? First the facts: Family Procedure (Amendment No X) Rules 2015 are out for consultation. Comment is invited by 25 September 2015. Family Procedure Rules 2010 are proposed to be amended by adding Part 3A – Children and vulnerable persons: participation in proceedings and giving evidence. No explanatory note accompanies the draft; and we are told that the practice direction (as proposed by the rules) is yet to be published. Ministry of Justice say that the practice direction will be consulted upon separately. Yes, they really do say that.
Part 3A starts with an ‘interpretation’ rule, which leaves out more than it says (and see ‘clarity’ (below)): for example:
- The term ‘vulnerable person’ referred to in the title to Part 3A is not used again, still less is it defined; though it is implied by the concept of participation or evidence being ‘likely to be diminished’ (see eg rr 3A.4(1) and 3A.5(1)).
- What is meant by ‘proceedings where a child is involved’ is not explained (eg is it as a witness, as a party, or any proceedings which concern a child; or is it intended to be the same as ‘participation’ as set out in r 3A.2(2)?).
- Participation of a party or their evidence ‘is likely to be diminished’ is stated by rr 3A.1(1), 3A.4(1) and 3A.5(1); but ‘diminished’ by what? If something is ‘diminished’ it can only be by reference to something else (eg ‘The strength of my argument is diminished by your comments upon it)? The word ‘diminished’ can have no meaning in the absence of the qualifier ‘by’?
- Ability to ‘participate in the proceedings’ (r 3A.2 and 3.A.3) is not defined: what proceedings? What does ‘participate’ mean in this context (eg is it the same as ‘involved’?)?
- Is ‘case management’ meant to mean something different from the term as it applies in Civil Procedure Rules 1998 Part 3 and FPR 2010 Part 4?
- ‘Intermediaries’ are one of the ‘measures’ promised to be available by the draft; yet this term is not defined and who is going to pay for these intermediaries?
The draft rules impose on the court a duty to consider whether (r 3A.2), and if so how (r 3A.3), a child should ‘participate in proceedings’. If a child is to participate r 3A.3(2) sets out the ‘case management’ directions which the court should consider and what these directions should contain.
Rules 3A.4 and 3A.5 move away from children, and consider the ‘participation’ and ‘evidence’ of a party to proceedings (presumably intended to apply to a ‘vulnerable’ individual), and whether this ‘is likely to be diminished’ (but by what? – see above). The rules set out what case management directions may be necessary.
Rule 3A.6 tells the court to what it must have regard when it considers making case management directions in relation to the previous three rules. Rule 3A.7 sets out ‘measures’ (referred to in earlier rules) for protection of the children or vulnerable parties or witnesses concerned (eg evidence by video link; assistance from an intermediary etc. Rules 3A.8 and 3A.9 asserts when the rules apply (‘as soon as possible after the start of proceedings’: r 3A.8(1)); and what an application must include. The court can proceed on its own initiative (FPR 2010 rr 3A.10) in respect of a child or a party; but what does a witness, or child not a party do to activate the rules? A party applies under FPR 2010 Part 18 (r 3A.9(3)). Reasons for its decision must be recorded by the court (r 3A.11).
Ground rules: clarity, ‘simple expression’ and vulnerable persons
FPRC make the rules in exercise of its powers under Courts Act 2003 ss 75 and 76. Section 75(5) requires that any power to make these rules must be
(5) … exercised with a view to securing that—
(a) the family justice system is accessible, fair and efficient, and
(b) the rules are both simple and simply expressed.
If these amendment rules do not come up to that – admittedly subjective – standard, then they may be unlawful from the start. Section 75(5) broadly complies with Lord Bingham’s first rule of his ‘Rule of law’ (http://www.cpl.law.cam.ac.uk/past_activities/the_rule_of_law_text_transcript.php): that –
… the law must be accessible and so far as possible intelligible, clear and predictable. This seems obvious: if everyone is bound by the law they must be able without undue difficulty to find out what it is, even if that means taking advice (as it usually will), and the answer when given should be sufficiently clear that a course of action can be based on it.
Given that Part 3A’s main consumers will be ‘vulnerable’ individuals and some children, special allowance should be made for their understanding and difficult circumstances at the time of having to read and have ‘access’ to these rules. The new rules must not be drafted only for the understanding of lawyers.
Background and context for the rules
H v L and R  EWHC 3099 (Fam)  2 FLR 162 emphasised how backward were some of their procedural rules for dealing with children and vulnerable individuals – known predominantly in most civil proceedings contexts as ‘protected parties’ and witnesses. In that case Roderic Wood J considered how he could protect X, a 20 year old who was to be cross-examined by the father of the child in the case (X’s half-sister) whom, X alleged, had abused her when she was nine. Said the judge, she –
 … was a borderline anorectic, and a suicide risk. Thus the question of by whom she should be cross-examined was of particular import, although I do not believe that the resolution of the issue of who should cross-examine such a witness in other cases is dependent on the existence of such features of vulnerability (both physical and psychological).
He examined how this was done in criminal trials including under Youth Justice and Criminal Evidence Act 1999 s 35 and concluded:
 I would invite urgent attention to creating a new statutory provision which provides for representation in circumstances analogous to the existing statutory framework governing criminal proceedings as set out in [YJCEA 1999]…. I can see no distinction in policy terms between the criminal and the civil process. Logic strongly suggests that such a service should be made available to the family jurisdiction. If it is inappropriate for a litigant in person to cross-examine such a witness in the criminal jurisdiction, why not in the family jurisdiction?
And that is where the law still stands in family proceedings.
Meanwhile, in the criminal courts cross-examination of vulnerable witnesses may be limited (YJCEA 1999 s 22; and see Criminal Procedure Rules 2014 rr 29.8-29.13, especially r 29.9). As Simon Heaney explains in Safety measures: vulnerable witnesses,  June Family Law Journal at 7) and as Roderic Woods emphasises, civil and family lawyers trail a long way behind their criminal law colleagues.
The common law and the draft rules
The common law in 2015 bristles with judicial concern – especially House of Lords and Supreme Court – at any incursions into open court principles and exceptions to that principle (eg in relation to the giving of evidence: AG v Leveller (below) is a classic example). From Scott & Anor v Scott  UKHL 2,  AC 417 through Attorney General v Leveller Magazine Ltd  AC 440 and R (ota Guardian News and Media Ltd) v City of Westminster Magistrates’ Court (Article 19 intervening)  EWCA Civ 420,  QB 618 to Kennedy v The Charity Commission  UKSC 20 and A v British Broadcasting Corporation  UKSC 25 exceptions to the common law open justice principle are explained. Children proceedings evidence may be covered by privacy rules (Administration of Justice Act 1960 s 12(1) and its jurisprudence); but evidence from vulnerable adults (see eg H v L & R and Lady Hale in Re A (above)) comes four-square within the ambit of open justice and where exceptions to the rule should apply.
If the common law open justice principle is to be altered for adults – the vulnerability of witnesses in some family proceedings surely cries out for this, as eg H v L & R shows? – then this alters fundamental rights of parties to proceedings. Fundamental rights can only be changed by express statutory provision (see eg R v Secretary of State for the Home Department, exp Simms  UKHL 33;  2 AC 115 per Lord Hoffman) not by a rule. Some of the amendments proposed by the draft need statutory sanction.
Alsatianisation of family proceedings law and rules
In Richardson v Richardson  EWCA Civ 79 Munby LJ said:
 The Family Division is part of the High Court. It is not some legal Alsatia where the common law and equity do not apply. The rules of agency apply there as much as elsewhere. But in applying those rules one must have regard to the context, and the relevant context here is the law of ancillary relief and, more particularly, as Mr Dyer has correctly said, the rules which apply where the question is whether an ancillary relief order should be set aside as between the husband and the wife’s estate. And in that context the relevant [rules of agency] are those to be found in the authorities [referred to earlier in this judgment].
‘Alsatia’ (Alsace was in the throes of the Thirty Years War at the time) was the name of a lawless area between Blackfriars, Fleet Street and the Thames (not far from the present Temple sets of chambers) where fugitives from the law in early seventeenth century London were said to be able to obtain sanctuary, and thus relief from prosecution.
The principles on which these new rules are based are partly derived from criminal proceedings; but in respect of civil proceedings generally the problems will apply there as well (as JX MX v Dartford & Gravesham NHS Trust & Ors  EWCA Civ 96 shows, a case cited by Keehan J in Birmingham City Council v Riaz & Ors  EWHC 4247 (Fam) (15 December 2014)).
It must make sense that all Divisions of the civil courts, the county court (now a single court) the Court of Protection and the bankruptcy courts all subscribe to, and incorporate into their respective rules, the new vulnerable individuals rules, rather than the family courts operating in their own Alsatia.