C-DAY-14 – ‘LIKELY TO BE DIMINISHED’…

Funding for intermeddling, and where will it come from?

It is now C-Day[1] 14. No draft ‘Explanatory Note’ to Amendment X (‘Amendment X’: Family Procedure Rules 2010 ‘Part 3A: … vulnerable persons: participation in family proceedings and giving evidence’ (https://consult.justice.gov.uk/digital-communications/draft-amendments-to-family-procedure-rules/supporting_documents/annexachildrenvulnerablewitnessesfprcdraftrule.pdf). No draft explanatory note has been produced to accompany the draft regulations; and the practice direction, to which the rules refer – and on which, says Ministry of Justice, they will consult separately – is yet to be seen by anyone outside Family Procedure Rules Committee and the Ministry of Justice civil servants.

Specialist children lawyers and other child law professionals will want to know – if they do not already – what ‘intermediaries’ are (Pt 3A r 3A.7(1)), and how they are to be paid. The term ‘intermediary’ is not defined in Part 3A, nor – as far as I can see – at anywhere in FPR 2010. It must include – surely? – people working with disable of all sorts (the deaf, dumb or blind (often social workers or other professionals employed by charities, which also need to be paid – see eg https://dbfamilylaw.wordpress.com/2015/08/23/protecting-vulnerable-parties-and-witnesses-in-court/); those who treat hospitalised or otherwise immobilised, parties and who must help conduct the trial and case management proceedings from a bedside; lawyers in special advocate or closed material procedure cases etc. Most critical of all to the success of any vulnerable witnesses court scheme is how is intermeddling to be funded: on its own – ie without statutory intervention – it does not pay for itself.

‘Vulnerable’ individuals

Draft rule 3A.1(1) is – I think – an attempt, by another euphemism, to define ‘vulnerable’ as applied to parties and witnesses in family courts proceedings. The term is used to describe those individuals (other than children) who are covered by Amendment X. However the term does not appear in the body of Part 3A. Instead, we are told, Part A refers (as relevant here)

… to proceedings where— … (b) the participation of a party in the proceedings is likely to be diminished; or (c) the quality of evidence given by a party or witness is likely to be diminished.

The rule makers seem too coy to say so, but I believe r 3A.1(1) grapples for a word which is other than; but where has it come from. First see the heady prose of John Donne, late in his life, in Meditation XVII[2] (http://www.luminarium.org/sevenlit/donne/meditation17.php):

PERCHANCE he for whom this bell tolls may be so ill as that he knows not it tolls for him.  And perchance I may think myself so much better than I am, as that they who are about me, and see my state, may have caused it to toll for me, and I know not that. [When]  The church …buries a man, that action concerns me; all mankind is of one author, and is one volume; when one man dies, one chapter is not torn out of the book, but translated into a better language; and every chapter must be so translated; [as] therefore the bell that rings to a sermon, calls not upon the preacher only, but upon the congregation to come; so this bell calls us all: but how much more me, who am brought so near the door by this sickness.

… The bell doth toll for him, that thinks it doth; and though it intermit again, yet from that minute, that that occasion wrought upon him, he is united to God.  Who casts not up his eye to the sun when it rises?  But who takes off his eye from a comet, when that breaks out? who bends not his ear to any bell, which upon any occasion rings?  But who can remove it from that bell, which is passing a piece of himself out of this world?
And then the well-known passage:
No man is an island, entire of itself; every man is a piece of the continent, a part of the main; if a clod be washed away by the sea, Europe is the less, as well as if a promontory were, as well as if a manor of thy friend’s or of thine own were; any man’s death diminishes me, because I am involved in mankind, and therefore never send to know for whom the bell tolls; it tolls for thee.

‘Likely to be diminished’

Any man’s death ‘diminishes’ me. Is that what is, subliminally, in the drafter’s mind when he sought to describe vulnerable individuals proceedings. ‘Vulnerable’ has always been the preferred description; but for now it is proposed to be ‘diminished’; and not by anything…; just ‘diminished’.  We are not told by what, or why or how this word is to be understood.

[1] Fourteen working days till – nominally at least – the Ministry of Justice period on their vulnerable individuals in family courts consultation runs out

[2] Nunc lento sonitu dicunt, morieris: Now this bell tolling softly for another, says to me, Thou must die.

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