VULNERABLE INDIVIDUALS AND CHILDREN IN FAMILY PROCEEDINGS

Response to consultation

SUMMARY

This response to the Ministry of Justice draft consultation on amendments to Family Procedure Rules 2010 in relation to children and vulnerable individuals (‘the draft’) is prepared by David Burrows. He is a 42 year admitted family law specialist solicitor advocate who has chaired Resolution (then SFLA), who was an enthusiast from the start for much of what was in Report of the Committee on One-Parent Families July 1974 Cmnd 5629 and who is a founder contributor to Family Court Practice (the ‘Red Book’). He continues to specialise in family and administrative law: as a practising lawyer, teacher, writer and jurist.

This response traces the back-ground to the draft and then goes on to a factor which FPRC seem to have neglected – fudged even (as will appear[1]): namely to look at the statutory or common law underpinning of the proposed reforms. The FPRC minutes, at Annex 1 below, record Ryder LJ asserting the scheme to be ‘intra vires’; but intra vires what? This is not stated.

As will be explained below, judicial duties cannot be created by a rule. They are a matter of law; since they create also a balancing right which can be enforced by prerogative writ. This is a serious area of law, which seems not to have even been debated by FPRC.[2]

This response then goes on to refer to the central aspect of the amendments namely ‘measures’ (draft r 3A.7). This also needs a statutory foundation to define the measures; as does provision for their funding (eg for advocates to assist the court with cross-examination of vulnerable witnesses and other now discretionary bases for ‘measures’; and see contrast between H v L & R and Re K and H (both cases referred to below): neither case are referred to by FPRC, as if it hopes the effects of them will be provided for on some Treasury wing or prayer).

My response proceeds by examining the rules with detailed commentary thereon, but before it does so it alludes to their main failings (apart from the question of their statutory vires):

  • FPRC are trying to deal with two quite separate subjects: children and their part in proceedings and/or seeing the judge; and vulnerable individuals (parties and witnesses) taking part in family proceedings. These must be separated.
  • The term diminished, in context, is of limited – and perhaps pejorative – meaning.
  • How are their central feature – intermediaries – to be funded?
  • How will their requirements, especially for evidence, work where the open justice principle applies in family proceedings?
  • There is no point in family lawyers inventing the wheel: all civil jurisdictions must sign up to a fresh set of rules (so far as they are needed) to cover the subject.

The way forward

The way forward could be relatively simple:

  • To draft rules which deal specifically for children to be heard (this is a separate subject which the rules do not clearly provide for)
  • That application can be made by vulnerable individuals (which may include individuals under 18) to have their evidence dealt with by intermediary or other specific means (video etc) (broadly as in draft r 3A.7)
  • To ensure by slight amendment (or reference in practice direction) that case management directions take account of the special needs of vulnerable individuals.

Statutory provision must be made for any funding requirements of these three factors; including funding of the need identified by Roderic Wood J and HHJ Bellamy in H v L & R and Re K and H at first instance. These cases cannot just be ignored as FPRC does.

Till these simple principles are met, accepted and translated into simple rules, a response to the consultation must proceed.

I        INTRODUCTION AND BACKGROUND

Genesis of the draft rules

The consultation invited by FPRC requires a brief consideration of the genesis of the present draft, beginning with a few lines from Sir James Munby P dated 4 June 2014. This formed the background to the setting up of a working group under two High Court judges.[3] This note defined three separate areas for ‘review’: (1) judge’s meeting children, (2) children giving evidence and (3) ‘vulnerable people giving evidence in family proceedings’.

The working group immediately conflated these three into one, and recommended a single rule change by their paper dated 31 July 2014; and that this rule should be in place by early January 2015. In March 2015 a report (dated ‘February 2015’) emerged. Given our concerns that this exercise should be co-ordinated in all jurisdictions, around a third of it consists of a quote from the Court of Appeal (Criminal). It included a draft rule. Each of the three subjects identified by Sir James are still conflated.

The short point for the present is that there is no real philosophical underpinning to what is proposed. There is no clear stamen in any of these documents as to what FPRC thinks is the current state of the law. Their June 2015 meeting was addressed by Ryder LJ who is known not to be a heavy-weight in the law area. He gives no exegesis as to what are the common law and (if any) statutory roots of what is proposed. There is no acknowledgment that generally a rule cannot create a duty (as at the proposed rr 3A.2, 3A.4 and 3A.5): only the law can do that.

In my response to the original interim report[4] I stressed:

[17] The working group is requested to recall that a rule cannot alter the law; and thus to reflect on the extent to which their reforms seek to amend the law that it must be within the terms of powers delegated to FPRC or that primary legislation is required.

H v L and R: Roderic Wood J

The third aspect of the issues set out above, namely dealing with ‘vulnerable people’ giving evidence was given prominence by Roderic Wood J in H v L and R (below) where he reviewed the then availability of provision for a witness being cross-examined by an alleged abuser (a similar discussion occurs at the end of Lady Hale’s judgement in Re A (Sexual Abuse: Disclosure) [2012] UKSC 60, [2013] 1 FLR 948).

In H v L and R [2006] EWHC 3099 (Fam) [2007] 2 FLR 162 a father applied for contact with his 9 year old daughter. A hearing was to determine the truthfulness of abuse allegations made by A the mother’s daughter by a different father. Now an adult, A was a borderline anorectic and a suicide risk. The father acted in person. In criminal proceedings the mother’s daughter would have been protected from cross-examination by the litigant in person by virtue of the Youth Justice and Criminal Evidence Act 1999; but how would this work in family proceedings. The father was entitled to cross-examine A, though she was a vulnerable witness who had alleged that he had sexually abused her when she was a child. The judge took the view that all available options – including a guardian appointed under r 9.5 of the Family Proceedings Rules 1991, CAFCASS Legal, the Official Solicitor, the free representation unit – even the judge himself – were either inappropriate or unavailable. Following the court’s urgent request, the Attorney-General exceptionally agreed to provide an advocate.

The judge recommended then that new statutory provisions analogous to the existing statutory framework governing criminal proceedings as set out in the YJCEA 1999 were urgently required for civil proceedings to provide representation in circumstances such as those arising in the instant case (see para [25]). An so it was – over eight years later, and after one statute (Children and Families Act 2014) which left out any statutory provision – that draft Family Procedure (Amendment No X) Rules 2015[5] were published in early August 2015. (A barely unlawful period of only 20 days – August should be ignored for computation of the period – was allowed for consultation).

The proposal is that Family Procedure Rules 2010 be amended by adding Part 3A – Children and vulnerable persons: participation in proceedings and giving evidence (not to be confused with ‘protected parties’ see FPR 2010 Part 15). A draft practice direction (referred to in the amendment rules) is still awaited. It is promised that this be consulted on separately (sic). And, it must be added at this stage, it is not clear yet how the issues thrown up by H v L and L will be dealt with and paid for under these rules.

Recent background to the draft rules

The background to these proposed amendment rules can be found in the Report of the Vulnerable Witnesses & Children Working Group, February 2015 (‘Report of VW&CWG’; https://www.judiciary.gov.uk/wp-content/uploads/2015/03/vwcwg-report-march-2015.pdf) and the Group’s earlier ‘interim report’; and then in the minutes of the Family Procedure Rules Committee (‘FPRC’: role explained below) of 15 June 2015. In those minutes (pare 4: see Annex 1 below) Ryder LJ (not a member of the committee) explained the legislative form of the rules: that they had been set out in the form of:

… a draft statutory instrument. These had been drafted so as to be intra vires[6] and in the Committee’s usual drafting style. By virtue of clever drafting it was considered that the draft did not conflict with the overriding objective and did not create any new legal obligation.

This minute suggests that Ryder LJ’s urging FPRC to accept that ‘clever drafting [of the rules] did not create any new legal obligation’ makes the proposed amendments somehow of questionable legality. (The committee do not query any of this: most are family lawyers, who are not accustomed to challenging vires of anything, let alone asking what is meant and exactly of what when the term is used).

In fact the rules seek to create new duties which can only be done by statute or the common law (neither of which apply here). A duty gives rise to a right; and that right is protected by remedies such as judicial review and, in extremis, by a claim for damages. There is nothing that I can see in Courts Act 2003 ss 75 and 76 which permits so free-wheeling an approach to creation of judicial duties and thus of rights in those affected by assertion only of FPRC.

One of the aims of this response must be to ask: what is the existing common law on the subject[7] (eg in the area of case management). The statutory foundation, where needed (such as over funding), must be provided. This seems to have been deliberately evaded by FPRC (the draft rule ‘did not create any new legal obligation’). This must not, please, be allowed if the protections and assistance required by new rules is to be made real.

Children and vulnerable individuals

The draft rules conflate two very different aspects of family law: children (already dealt with in various parts of the rules) and vulnerable individuals in family proceedings. Thus, children proceedings are extensively covered in Part 12, and children in proceedings is dealt with in Part 16. It will only confuse readers of the rules still further if the children parts of Part 3A are in yet another part of the rules.

In any event, to try to mix up the two subjects and to find common aspects to them (eg ‘measures’ (r 3A.7) and case management features (r 3A.6)), is artificial and confusing. The children rules should be in Part 16 and the rest mostly in Part 4 and, as the draft relates to evidence, in Parts 21-23.

II       STATUTORY PROVISION

COURTS ACT 2003

Making of the draft rules

The separate subjects-matter of the draft rules are of pre-eminent concern to family law administrators (as the VW&CWG showed). The reforms require proper funding. But they cannot be sneaked in – as Ryder LJ proposes – by a rule-making back-door and without clear plans as to how they will be funded and, in the case of the ‘measures’ given effect to.

The present powers of FPRC are defined by Courts Act 2003 ss 75-76 (see Annex 2 below). FPRC make no attempt to frame their draft rules in the context of their statutory powers. Some areas do not need rule change: they are there in the common law case management powers of the court in Part 4 (which can be beefed up fractionally). In general though, having yet more rules in different parts of already diffuse rules does not make for clarity. This is so especially where provision is already there for a good judge (operating under the existing common law). Nor does further rules improve a reader’s understanding within the terms of Courts Act 2003 s 75(5) (rules ‘simply expressed’ etc).

LAW REFORM: COMMON LAW OR STATUTE

Statutory under-pinning

The Ryder LJ note shows no appreciation, other than its reference to evasion, to the need for statutory under-pinning for these reforms. Apart from the need to comply with ss 75 – 76 above, it seems to me that the draft rules will require at least the following statutory input:

 

Duties to consider

Each of draft rr 3A.2(1), 3A.4(1) and 3A.5(1) impose a duty on the court. This represents an imposition on a judge which can only be made by law (ie not by a rule). Unless this duty is to be found in the common law, it must be the subject of primary legislation.

That said, neither rule change nor legislation is probably necessary. If the fact of ‘diminishment’ is drawn to a judge’s attention and lawful directions proposed to deal with it the ‘diminishment’ will be dealt with by the court anyway[8] – funds permitting.

Mostly difficulties do not lie in the generalities which these draft rules deal with, but in particular types of proceedings and need for help for the vulnerable, for which payment must be made (and thus these rules do not provide) eg

  • How do you, get into court and pay for, and advocate to cross-examine in the H v L&R case; or guarantee it will happen?
  • How do you get the judge to realise that a person cannot read?
  • How do you pay for court documents to be copied because someone cannot read English
  • How do you get evidence to court where a person cannot face their (alleged) abuser?
  • How do you pay for an advocate to the court where confidential documents must not be read by a party?

Are any aspects of all this different if a party is in person (a point picked up in the original July 2014 working paper, but lost since)?

Intermediaries

The term ‘intermediary’ is not defined. The FPRC minutes show 3 comments raised on the whole subject of ‘measures’ and none directly on ‘intermediaries’ (though committee members seem to have only had a couple of days’ notice of the terms of the final draft considered by them).

It is this aspect of what is intended (and its funding) which will dictate the success of the vulnerable individuals aspect of this scheme; yet there is no indication of what FPRC had in mind on how that was costed. A request for information on the funding aspect received this polite but meaningless reply:

The Committee is aware of the general principle that the Rules cannot require funding from a public authority. Should consultation responses raise this issue further, this will be looked at in light of those comments. Ministry of Justice policy officials were consulted as part of the drafting of the rules. They have regular contact with colleagues in the Legal Aid Agency and have discussed the draft rules with them as appropriate. Should the Legal Aid Agency need to be involved further following consultation, that will be done.

Legislation is needed to deal with the subject of intermediaries: what are they exactly, how are they to be dealt with if (for advocates) through the present discretionary channels of the Attorney-General, how to be dealt with if special advocates or in a closed material procedure (see eg under Justice and Security Act 2013 and CPR 1998 Part 82). Most importantly, if professional or otherwise requiring payment, how are ‘intermediaries’ to be funded?

Funding and intermediaries

Legislation is needed to deal with funding of intermediaries, whether they be to help with disabled parties (including the deaf etc) or witnesses, to deal with CMP procedures and PII cases; and to deal with cross-examination by an alleged abuser. Ryder LJ does not seem to have drawn Re K & H (Children) [2015] EWCA Civ 543 (22 May 2015) to the attention of FPRC; though Matrimonial and Family Proceedings Act 1984 s 31G(6) is one of the three points discussed under ‘measures’.[9]

Vulnerable individuals in all civil proceedings

These rules are intended to apply only to family proceedings (ie under FPR 2010). Why? The same issues arise in all civil proceedings (criminal proceedings have their own rules). Questions over children will predominate more in family proceedings, we accept. However there is no logic in not having one set of rules and legal principles which apply in all civil courts and tribunals. (At a basic level, more rules only creates (1) work for lawyers, which increases expense for the public, and (2) work for the judges which means more expense for the taxpayer.)

Open justice principle

A question remains whether these rules (especially rr 3A.4, 3A.5 and 3A.7) have been drafted without proper concern for their common law context. From Scott & Anor v Scott [1913] AC 417 through Attorney General v Leveller (above) to A v BBC (above) the SCt/House of Lords have been concerned with the legitimacy of exceptions to OJP.

If the common law is to be altered in such a way that it affects fundamental rights of anyone involved in the proceedings it can only be done by express statutory provision (see eg R v Secretary of State for the Home Department, exp Simms [2000] 2 AC 115, Lord Hoffman). A rule is not enough. Some of the amendments proposed by the draft may need review through a statutory sanction prism.

At all times it must be recalled that these rules must be framed on the basis that in terms of the OJP, probably FPR 2010 rr 27.10 and 27.11 are ultra vires the rule makers (Allan v Clibbery [2002] EWCA Civ 45, [2002] Fam 261, [2002] 1 FLR 565 shows how easy it is to prove that point). Therefore any rule which deals with vulnerable witnesses – eg adults who have to give evidence in non-children proceedings (eg child sexual abuse injunction cases – may have to be protected legitimately from concerns about publicity. Rules on intermediaries need to be drafted with that in mind.

No thought has been given to how a child or a witness, either of whom is not a party to proceedings, is to make an application in the proceedings to have their views considered or to be asked to be found ‘diminished’.

III     CONTENT OF THE DRAFT RULES

‘CHILDREN AND VULNERABLE PERSONS’

Conflation of subject matter

The draft rules conflate two very different subjects:

  • Children in proceedings – their participation in proceedings – eg expression of their views to the court; their evidence; their receipt of information etc: see esp r 3A.3(2)) (see Part 3 below).
  • ‘Vulnerable’ individuals – whose evidence or participation ‘is likely to be ‘diminished’ (a term which must be taken to taken to be the same as ‘vulnerable’ (Part 4 below).

‘Vulnerable’ person – person ‘diminished’

‘Vulnerable person’ is in the title to Part 3A, but it is not used in the text of the rules, nor is it defined. ‘Vulnerability’ is implied by an individual’s participation or evidence being ‘likely to be diminished’ (rr 3A.1(1), 3A.4(1) and 3A.5(1))? It is not made clear what this means or what it is said to be ‘diminished’ by. The dangling of the verb diminishes the sense of ‘diminished’.

Courts Act 2003 s 75(5) requires that all FPR 2010 must be ‘both simple and simply expressed’ so that ‘the family justice system is accessible, fair and efficient’. The amendment rules are intended for children and the vulnerable. If they are to be intra vires the powers of FPRC they must be clear – in general terms, and for individuals who must use them, in particular. The reader of Part 3A may him/herself be an unrepresented ‘vulnerable person’ (see eg Re M (A Child) [2015] EWFC 71 (4 August 2015) where a mother lacking capacity failed to obtain legal aid), who may need fully to be able to understand them.

Interpretation

FPR 2010 r 2.3(1) deals generally with interpretation under FPR 2010; yet Part 3A starts with an ‘interpretation’ rule (why not in r 2.3(1)?). This should be crucial to understanding the rules; but it leaves out the definition of a number of terms:

  • ‘Vulnerable’ witness or participant – though ‘vulnerable’ is in the heading to the draft, it appears nowhere else. It is not defined (though perhaps it is implied from the term ‘likely to be diminished’: rr 3A.4(1) and 3A.5(1) (see below))
  • ‘Proceedings where a child is involved – (r 3A.1(1) probably it is 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? This is left open, which means ‘diminished’ loses its sense: it is a verb which must be relative to something else.
  • ‘Child’s age and maturity’ (r 3A.2(3)) – see below
  • Measures’ – ‘measures’ (not perhaps an ideal word) has a specific meaning set out in r 3A.7, to which cross-reference might have been provided in r 3A.1(2).

 

  • ‘Case management’ and directions – the various references to case management (eg rr 3A.3(2), 3A.4(2), 3A.5(2)) and directions (rr 3A.6 and 3A.9) can be taken to supplement those in eg FPR 2010 rr 1.4(2) and 4.1; but this could be made more clear.

Other definitions which might be expected include:

  • ‘Diminished’ – critical to what part of these rules is about is not defined.
  • ‘Participate in proceedings’ – this term (also ‘participation in proceedings by a party or witness) is central, for children, to the draft rr, but is defined only inferentially by r 3A.2(2).
  • Child’s ‘competence’ to give evidence: considered in Report of VW&CWG at §8 in §39 quoted from R v Barker [2010] EWCA Crim 4 per Lord Judge LCJ.
  • ‘Protected party’ (r 3A.4(2)(b)) – reference is made briefly to ‘protected party’. This term is defined in r 2.2(1) as ‘a party… who lacks capacity (within the meaning of [Mental Capacity Act 2005] to conduct proceedings’. Perhaps this might have been repeated in Part 3A, with a reference also to its place in Part 15.

Content of the draft rules

The draft rules then go on to deal with children then diminished adults in proceedings. The draft requires the court to consider whether (r 3A.2), and if so how (r 3A.3), a child should ‘participate in proceedings’ (Part 3 below). If a child is accepted by the court to participate, r 3A.3(2) sets out the ‘case management’ directions which the court should consider. Draft rules 3A.4 and 3A.5 consider the ‘participation’ and ‘evidence’ of a party to, or witness in, proceedings (presumably intended to apply to a ‘vulnerable’ individual), and whether this ‘is likely to be diminished.

Provision for case management directions for children and the ‘diminished’ are at rr 3A.6 and 3A.7 (Parts 5 and 6 below). Rules 3A.8 and 3A.9 sets out when Part 3A should be applied (by the court: ‘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 (r 3A.10). A party applies under FPR 2010 Part 18 (r 3A.9(3)). We are not told what a witness, or child not a party does, to activate the rules? They have no formal status in the proceedings. Must they rely on the court’s initiative (r 4.3), or on a party to apply under FPR 2010 Part 18.

CHILDREN IN PROCEEDINGS

Child as participant or ‘involved’ in family proceedings

Draft rr 3A.2 and 3A.3 deal with whether and, if so, how a child should ‘participate in the proceedings’. The question of participation in proceedings is, in effect, defined by r 3A.4(2) by a specific set of circumstances of where a child may be involved:

(2) … the child is—

(a) a party to the proceedings;

(b) the subject of the proceedings but not a party to them; or

(c) otherwise affected by matters in the proceedings.

It is not obvious to the casual reader that the drafter of the r 3A.4 appreciates that FPR 2010 Part 16 (Chs 2 – 4) already deals with a child as ‘a party to the proceedings’ (r 3A.2(2)(a) (above)):

  • Ch 2: when the court may make the child a party
  • Ch 3 (rr 16.3 and 16.4): when a guardian will be appointed
  • Ch 4: where a children’s guardian is not required; and involvement of a solicitor for the child (and see Re CT (A Minor) (Wardship: Representation) [1993] 2 FLR 278, [1994] Fam 49, CA)

The draft does not make clear why what it seeks to achieve is not threaded, logically, into Part 16. That said, in addition to Part 16 the draft deals with a child’s participation by asserting the need for the court to take account of:

  • The way a child’s views should be made known to the judge; and if so, how
  • Whether a child should be made a party (where not already a party: r 3A.3(2)(c))
  • Whether a child should give evidence in court; and if so subject to what (if any) r 3A.7 ‘measures’ or otherwise (r 3A.3(2)(e) and (f): PD still awaited).

Child’s participation in proceedings: a legal obligation

Whether ‘a child should participate [or ‘involved’?] in proceedings’ must be considered by the court (r 3A.2(1)); and, if so, ‘how’ is dealt with in r 3.A.3. Rule 3A.2(1) unquestionably creates a legal obligation. A rule, in law, cannot do this (Jaffray v The Society of Lloyds [2007] EWCA Civ 586). If I were a judge I should want more foundation than this to do my job. (One appreciates the scale of the problem when, by comparison, you look at the relatively trivial matters included in Children and Families Act 2014 (eg s 3 and expert evidence, which confirmed a rule which FPRC had already purported to make)).

If a child is to participate ‘the court must consider how’ and whether case management directions need to be made ‘to assist the child’ (r 3A.3(1)) as set out in the prescribed list in r 3A.3(2) (does it need to be prescribed: surely it should be an ‘including’ list). This list should be in Part 4 to give it proper prominence; or failing that in Part 16.

‘Information’ (r 3A.3(2)(a)) to be received by a child, raises questions of where a child – as a party – should not receive information (see open justice principle below); and how that information is to be communicated. Concerning ‘joined as a party’ and representation ((2)(c) and (d)): see r 16.3-16.6. Child giving ‘evidence’: how, to whom and subject to any ‘measures’ ((2)(e) and (f))? This must first be subject to questions of ‘competence’ and maturity considered in R v Baker (above).

‘Child’s age and maturity’

Rule 3A.2(3) provides:

(3) Before making a direction under paragraph (1) [child’s participation in proceedings], the court must consider any views expressed by the child about participating in the proceedings taking into account the child’s age and maturity.

‘Age and maturity’ is tossed in in a throw-away phrase; yet it is a legal concept which has a jurisprudence running from Gillick v West Norfolk and Wisbech AHA [1986] 1 AC 112 [1986] 1 FLR 224 via Children Act 1989 s 1(3)(a), Mohan v Mohan [2013] EWCA Civ 586 and to the present day. It is not clear from the rules how ‘age and maturity’ is to be assessed in practice. For the lay-person reading these rules, more needs to be said by the rule-makers at this stage.

Children: views or evidence?

The Report of VW&CWG (at §§ 22 to 26) seems to distinguish – as it must – between (1) views and wishes of children expressed to the judge and (2) their evidence.

  1. The purpose of children meeting the judge making the decision in their case needs careful consideration and delineation; this will include the management of the expectations of the child and of the judge. There is a dangerous conflation of the need for the child or young person to be part Vulnerable Witnesses & Children WG Report Final March 2015 15 of the proceedings and to be given an understanding the legal process (which should include meeting the judge if appropriate) with having her or his views, wishes and feelings and direct evidence of what they may have suffered or seen (their evidence) before the courts….

Though the draft rules deal with both (probably) it is not clear that they make the distinction between ‘views’ and ‘evidence’. There is an abundance of case law on child’s views in proceedings which needs separate treatment.

‘VULNERABLE’ PARTIES AND WITNESSES

Vulnerable individuals: party or witness

‘Vulnerable’ individuals – parties participating in proceedings (r 3A.4) or as a party or witness (r 3A.5) – is determined by whether their involvement ‘is likely to be diminished’; but it is not clear by what. What is the meaning of ‘diminished’ here?

Is my participation ‘diminished’ because I am deaf or dumb: if that is the intent surely a more apt word could have been found? Is my participation diminished because I have no one to look after my children when I have to be in court? If I am scared of courts or of being cross-examined: is that ‘diminished’ or just normal? Am I in a ‘diminished’ category if I do not want to be cross-examined by my abuser?

Before making decisions under rr 3A.4 or 3A.5 the court must consider the views of the individual (party or witness) concerned (r 3A.4(4) or 3A.5(4)):

  • the rules do not say how this consideration of views is to be done
  • no indication is given as to how the a witness who is not a party and has no standing is to make an application

Participation of a party in proceedings: requirement for statutory intervention

Rule 3A.4(1) seeks to imposes on a judge (rr 3A.8 and 3A.9 deal with when) two mandatory requirements, without any statutory basis (though to a degree they may exist already in common law, where the judge is an ordinary thinking person):

  • First to ‘consider whether a party’s participation in the proceedings is likely to be diminished’; and, if so
  • Whether the court considers it is required ‘to make one or more directions in’ r 3A.4(2), so as ‘to assist the party’.

All of this must be read, and considered by FPRC, even if these provisions are lawful – ie can be made within the powers in Courts Act 2003 s 75 and 76 – they must also be looked at in the light of s 75(5) and who is their law readership. Thus, r 3A.4(2) and (3) gives the court three options, if r 3A.4(1) applies:

  • To decide if the party should be assisted by certain ‘measures’ (see Part 5 below); and
  • To decide whether a party should be a protected party (FPR 2010 Part 15; and see below); or
  • To do neither, in which case the court must say why not (r 3A.4(3): see below).

Quality of evidence of a party or witness

Rule 3A.5 widens the nature of diminishment to parties and to witnesses; and applies to the extent to which the ‘quality’ of that evidence ‘is likely to be diminished’. ‘Quality of evidence’ is defined in r 3A.1(2)(a) as applying to ‘completeness, coherence and accuracy’. ‘Coherence’ applies to a witness’s ability to give answers which address the question (r 3A.1(2)(c)); but whether this applies to congenital lack of coherence (ie because of lack of capacity) or coherence related to the court circumstances, is not clear. Rule 3A.5(2) and (3) apply, if r 3A.5(1) applies, in which case the court can direct that the party or witness should be assisted by ‘measures’ (see Part 6 below); or not to take that course, in which case the court must say why not (r 3A.5(3): see below).

Mandatory nature of r 3A.4

Read literally the rules seems to imply that every party and witness must be assessed for ‘diminishment’ and a ruling made under rr 3A.4(3) or 3A.5(3). This is unlikely to be the intention. However, it is not clear how diminishment – ie vulnerability – is to be raised and the issue disposed of – one way or another – is not clear. The terms of rr 3A.4(1), (3) and 3A.5(1), (3) are mandatory upon the court – apparently, as drafted, in each case.

Protected parties

Rule 3A.4(2)(b) raises the critical question of whether a party should be a ‘protected party’ – ie whether they lack capacity in terms of Mental Capacity Act 2005, and thus whether a party should have a litigation friend to conduct proceedings (FPR 2010 r 15.2). FPR 2010 Part 15 is thereby engaged and proceedings will then be governed thereafter by that Part.

DIRECTIONS

Case management directions: a check-list

Rule 3A.6 is a check-list of the ‘particular’ factors the court must take into account when it makes case management directions under rr 3A.3(2), 3A.4(2) or 3A.5(2). As can be seen these range from the searching (eg (a) below) to the banal (eg (d) and (e)). Are these really necessary? If I were a judge I’d be insulted by some factors. If they are needed they should not be in a rule, perhaps in the practice direction.

An example of the absurdity of the rule is that the court must assess ‘Behaviour towards the child’ etc at (r 3A.6(h)) in the following terms:

This is the issue before the court under a part of the draft rule. Surely it need not be spelt out? To the extent that it does, it is not clear how the court is to receive, or to be satisfied upon this evidence. As to members of the ‘family’ of the ‘child, party or witness’: this surely spreads a wide net impossibly wide? To what standard must this ‘behaviour’ be proved?

MEASURES

Measures to protect children, witnesses etc

If a particular court cannot provide the ‘measures’ another suitable court must be found (r 3A.7(2)). ‘Measures’ referred to in the earlier parts of the rules are, as specified in r 3A.7(1):

(a) prevent a party or witness from seeing the other party;

(b) allow a party or witness to participate in hearings and give evidence by live link;

(c) provide for a party or witness to use a device to help communicate;

(d) provide for a party to participate in proceedings with the assistance of an intermediary;

(e) provide for a party or witness to be questioned in court with the assistance of an intermediary ; or

(f) do anything else which is set out in Practice Direction xxx.

Evidence by ‘video link or other means’ is provided for in family proceedings (FPR 2010 r 22.3; PD22A Annex 3; and see CPR 1998 r 32.3). FPR 2010 r 1.4(2)(k) encourages the family courts in the use of ‘technology’. In Re A (A Child) [2012] UKSC 60 the Supreme Court dealt with a suggestion that a vulnerable witness (X) might give evidence through some form of closed material procedure. In rejecting this Lady Hale (and see her§[34] below) pointed out:

[36] … If any party wishes to call X to give oral evidence, up to date medical evidence can be obtained to discover whether she is fit to do so. There are many ways in which her evidence could be received without recourse to the normal method of courtroom confrontation. Family proceedings have long been more flexible than other proceedings in this respect. The court has power to receive and act upon hearsay evidence. It is commonplace for children to give their accounts in videotaped conversations with specially trained police officers or social workers. Such arrangements might be extended to other vulnerable witnesses…. The object of the procedure is to enable witnesses to give their evidence in the way which best enables the court to assess its reliability. It is certainly not to compound any abuse which may have been suffered.

Open justice principle

This gives an idea of the extent to which the common law will permit exceptions to the open justice principle (as defined by Toulson LJ in R (ota Guardian News and Media Ltd) v City of Westminster Magistrates’ Court (Article 19 intervening) [2012] EWCA Civ 420, [2012] 3 WLR 1343); but this must be balanced against the extensive range of case law which stresses (as did Re A) the right of the party to court proceedings (1) to know who his/her opponent and witnesses against; and (2) to know who the full case against him/her – eg:

Attorney General v Leveller Magazine Ltd [1979] AC 440

Re A (A Child) (above)

A v British Broadcasting Corporation [2014] UKSC 25

Hearsay evidence (subject to Civil Evidence Act 1995 and FPR 2010 Part 23) will be permissible in most circumstances in family proceedings, and completely in children proceedings (Children (Admissibility of Hearsay Evidence) Order 1993). Evidence in children proceedings is covered (mostly) by privacy rules (Administration of Justice Act 1960 s 12(1) and its jurisprudence). Evidence from vulnerable adults is not protected in the same way (Allan v Clibbery [2002] EWCA Civ 45, [2002] 1 FLR 565; H v L & R and Re A (above)). Legitimate exceptions to OJP must therefore be justified by the rule-maker.

Closed material procedures; referral to Attorney-General

CMPs have been adopted in a narrow range of proceedings, and rejected – alongside special advocates – in most circumstances in family proceedings (but see Re T (Wardship: Impact of Police Intelligence) [2009] EWHC 2440 (Fam), [2010] 1 FLR 1048, McFarlane J). This subject in family proceedings needs extensive further research and substantive law reform. In the meantime, in respect of CMPs in civil proceedings generally Lady Hale said in Re A (above) at [34]:

… [the Supreme Court] has held that there is no power to adopt such a procedure in ordinary civil proceedings: Al Rawi v Security Service (JUSTICE intervening) [2011] UKSC 34[2012] 1 AC 531…. It is arguable that a greater latitude may be allowed in children cases where the child’s welfare is the court’s paramount concern.

Assistance by an ‘intermediary’

The rule is not clear what is meant by ‘assistance of an intermediary’ (§(d)) but this may mean eg via the Attorney-General. The extent to which the courts may refer to Attorney-General for appointment to assist is restricted by Attorney General’s Memorandum of 19 December 2001 (see out eg in Family Court Practice 2015 p 2923). This may need to be seen in the light of the relatively restrictive President’s Practice Guidance of 26 March 2015.

If an advocate is appointed s/he is retained by the Attorney-General and ‘represents no one’ (for an example in children proceedings, see H v L and R (below)).

In H v L and R [2007] 2 FLR 162, an advocate to the court was appointed to examine a vulnerable witness. Appointment may be requested where, for whatever reason, an alleged perpetrator is not represented; but this will be only in restricted circumstances (see Re K and H (above); and see MFPA 1984 s 31G(6) (below)).

Special advocate – Appointment by the AG of a special advocate is a separate procedure (as 26 March 2015 Guidance stresses; and see under FPR 2010 r 21.3).

Matrimonial and Family Proceedings Act 1984 s 31G(6)

MFPA 1984 s 31G(6)[10] provides as follows:

(6) Where in any proceedings in the family court it appears to the court that any party to the proceedings who is not legally represented is unable to examine or cross-examine a witness effectively, the court is to –

(a)ascertain from that party the matters about which the witness may be able to depose or on which the witness ought to be cross-examined, and

(b)put, or cause to be put, to the witness such questions in the interests of that party as may appear to the court to be proper.

Funding of representation of parties for cross-examination of a vulnerable witness under this provision – eg by subvention from HMRC where legal aid is not available  – is at present restricted by the Court of Appeal decision in Re K & H (Children) [2015] EWCA Civ 543 (22 May 2015). MFPA 1984 s 31G(6) envisages – per ‘cause to be put’ and the explanation of the meaning of this of Sir James Munby P in Q v Q; Re B; Re C (Private Law: Public Funding) [2014] EWFC 31 – assistance to the court from an ‘intermediary’.

PROCEDURE UNDER PART 3A

When court’s duties are said to apply

‘As soon as possible after the start of proceedings’ the court must consider the factors raised by this Part (3A.8(1)), and at the first case management meeting (eg CMC in public law proceedings and FDA in financial relief proceedings). The duty so to consider continues to the close of proceedings (r 3A.8(2)). If the court makes an own initiative direction the procedures under r 4.3(2)-(6) (own initiative directions) apply (r 3A.10). Reasons for the courts decisions must be given (r 3A.11).

Application for directions

Any application for directions is to be by the FPR 2010 Part 18 procedure (r 3A.9(3)); but this only available to a party to proceedings (FPR 2010 rr 18.1-18.3). Special process will be needed for children and witnesses, if – for example – a party to proceedings does not apply on their behalf (and in many cases, why should they incur the extra expense?). Application can be made at any time in proceedings (r 3.9A(2)).

Rule 3A.9(1) specifies what must be included by child, party or witness in their application – eg:

  • Why is their evidence ‘likely to be diminished’ (r 3.9A(1)(a))
  • Why might a direction ‘improve’ the quality of evidence or participation in proceedings (r 3.9A(1)(c))

 

David Burrows

11 October 2015

ANNEX 1

Family Procedure Rules Committee minutes of 15 June 2015 para 4

VULNERABLE WITNESSES AND CHILDREN WORKING GROUP REPORT

 

  1. A paper from Lord Justice Ryder and accompanying documents were considered.

(i) Introduction

Lord Justice Ryder informed the Committee that members of the sub-group considering the Vulnerable Witnesses and Children Working Group report had sent in detailed submissions relating to the draft rule annexed to the report, for which he was very grateful. These comments had been collated and were before the Committee together with stand-alone contributions from Judge Raeside and Hannah Perry.

Separately, Anne Herd had drafted rules in the form of a draft statutory instrument. These had been drafted so as to be intra vires and in the Committee’s usual drafting style. By virtue of clever drafting it was considered that the draft did not conflict with the overriding objective and did not create any new legal obligation. The judge emphasised the rules had been drafted without MoJ policy or ministerial input. Subject to the Committee’s discussion, it was intended to issue the draft rules for consultation in advance of the summer recess.

Lord Justice Ryder asked the Committee to consider three questions: Did the draft rules meet the Committee’s broad policy objective? Were there any drafting points that remain outstanding to be dealt with before going out to consultation? Were there any specific questions that should be posed on consultation?

The Chair added that he and Lord Justice Ryder had seen a previous version of the draft rules and comments made on them appeared to have been accommodated in the version before the Committee.

(ii) Comments on draft rules

Rule 3B.2 (Court’s duty to consider how a child can participate in proceedings)

In paragraph (2)(b) the Committee agreed with Mrs Justice Pauffley’s suggestion that “communicate with” would be less formal and more appropriate than “address”.

Rule 3B.10 (Recording of directions on court order)

Mrs Justice Theis noted that under draft rules 3B.2, 3B.3 and 3B.4 the court must consider whether it is necessary to make directions. She thought, therefore, that rule 3B.10 should include a requirement, where directions were not given, to record in the order that the court had considered the matter and that no directions were needed.

District Judge Darbyshire raised no objection to the suggestion but expressed concerns that giving reasons in the order as to why no directions were being made would extend the length of hearings. Experience has shown that completing Child Arrangement Programme (CAP) orders is time consuming as the forms of order are lengthy and repetitive.  Judge Raeside echoed those concerns and said it would have an effect on listing as cases would need to be listed for longer.

The Chair sympathised with the point raised and would be keen to remove any repetitive elements from forms of court order, but he was emphatic that where reasons were given it was essential for them to be recorded in the order. In the absence of a transcript, reasons would be lost. The problem was particularly acute in cases where both parties were litigants in person. At future hearings the court needed to know what had happened previously. Orders should also record where a measure was needed but resources were not available to provide it.

Lord Justice Ryder confirmed that in the Court of Appeal there was difficulty, in particular, in getting transcripts of private law proceedings. Without a record in the court order, it was not possible to know what had happened in the court below with the result of a risk of applications for permission to appeal being granted that might otherwise not be. Mrs Justice Pauffley added that it was also useful at first instance for the court to refresh its memory by reference to previous court orders.

It was confirmed that there was not a repeated obligation to consider whether directions were necessary but a continuous one.

The Chair concluded that in the absence of effective IT support for the courts it was necessary that a full record be included in court orders.

The Committee agreed that the draft rule be amended as suggested by Mrs Justice Theis.

Rule 3B.1 (Application of this Part and interpretation)

In paragraph (1)(a) Judge Raeside questioned the term “a child is involved”. She wondered if the term “child who is the subject of proceedings” should be used so as to provide a clear distinction between a child who is subject of proceedings and a child as a vulnerable witness.

Members gave examples of cases where siblings of the child who was the subject of proceedings were involved and needed their voice heard.

Lord Justice Ryder said this was a high level rule intended to encompass all children whether as a party, the subject of proceedings, a witness or with an involvement in some other way. This would allow the court to consider whether measures were necessary for any child involved. A supporting practice direction might give detail.

Judge Raeside said as drafted a child could be said to be involved in a very wide range of proceedings, including financial remedy, domestic violence and occupation orders proceedings. District Judge Darbyshire added that any child in a family would be affected by virtually any order made in the family court.

There was discussion of a number of scenarios, including whether the court would need to hear the voice of the child before making an order in a case where parents lodged a consent application for an order for the payment of school fees but where the child did not want to go to that school. It was thought in this scenario schooling would be a specific issue under section 8 Children Act 1989.

District Judge Carr questioned what would trigger the process of getting the child’s views.

The Chair said in private law children cases and financial cases, there was an assumption that in a dispute between the two parents, their child’s interests were being protected. That might or might not be the case. The overarching principle was that where a child would be affected the procedures in the draft rules should be applicable.

Lord Justice Ryder said that forthcoming decisions of the Court of Appeal might cause a fundamental re-appraisal of what constitutes participation in proceedings. One of the cases before the Court of Appeal related to recognition of an order abroad and the Chair said this reflected the problem he had raised at a previous meeting about a reluctance in Germany to enforce orders made in this jurisdiction because our procedures were considered defective.

The Chair said that if the rule were drafted so as to just apply to a child who was the subject of proceedings or a witness or were drafted too precisely, the rules would need to be amended subsequently when different circumstances arose. His preference would therefore be for the rule to be drafted in general terms.

The Chair questioned the definition of “child” at paragraph (2)(b). It was explained that the definition extended for this Part of the Rules the general definition in rule 2.3(1) that a child means a person under the age of 18 years who is the subject of proceedings.

District Judge Carr wondered if there was a better word than “involved”. Lord Justice Ryder said it would be considered.

Rule 3B.2 (Court’s duty to consider how a child can participate in proceedings)

Mrs Justice Theis suggested paragraph (1) be broken down in to two parts setting out the principle (i) as to whether a child should participate and then (ii) if so, how, as this might assist the court’s thought process. Lord Justice Ryder supported the suggestion of a two-part provision.

Mrs Justice Theis also thought the term “The directions are case management directions and directions” in this rule and in others a bit clumsy.

Lord Justice Ryder explained that the drafting was to meet the case management obligation in the overriding objective.

It was agreed that the signposts in the draft rules and the cross-references to practice directions were helpful and it was confirmed that these could be retained in the eventual rules.

Judge Raeside wondered if the situation where a child wanted to hear closing submissions would be covered by the rule as drafted. The judge also asked whether having “information about the court proceedings” would include a child being informed about the outcome of the proceedings.

It was agreed that (i) paragraph (2)(a) could be expanded to add “or to attend a hearing or part of it” and (ii) a provision could be added to the effect that the court may give a direction about informing the child of the outcome of proceedings in an appropriate way, in light of a child’s age and understanding.

Mike Hinchliffe noted that rule 12.14 (Attendance at hearings) already made provision about the attendance of a child who is the subject of proceedings. Lord Justice Ryder said this rule would be looked at.

Mike Hinchliffe noted that draft rule 3B.2(2)(e) provided for directions to be given that a child should give evidence in accordance with a practice direction whereas the equivalent provision for vulnerable witnesses was included in the draft rules. He suggested there be consistency. This suggestion was approved.

Rule 3B.8 (Application for directions)

Judge Raeside said her understanding was that the court would give directions on its own initiative rather than requiring an application. Lord Justice Ryder said the court could always make directions of its own initiative. The purpose of this draft rule was to make clear that any party or a child can apply.

It was agreed to amend “The application for directions” to “Any application for directions”.

Rule 3B.5 (What the court must have regard to)

Sub-paragraph (g): Marie Brock drew members’ attention to the omission of the reference to employment circumstances which appears in the equivalent rule in the Criminal Procedure Rules. Anne Herd said it had been omitted only because it was not included in the draft rule in the Vulnerable Witnesses and Children Working Group report. It was unclear to members whether its inclusion in the Criminal Procedure Rules was as a general welfare point that the court should have regard to or because a party or witness’s employment circumstances might affect their ability to attend court.

Richard Burton noted that the Criminal Procedure Rules also required the court to consider any political opinions of a witness when determining whether evidence will be diminished.

It was agreed that the draft rule should not be changed but that these omissions might form a consultation question and the Vulnerable Witnesses and Children Working Group could be asked for their reasons for not including these provisions from the Criminal Procedure Rules.

Sub-paragraph (b): It was questioned whether “the nature and extent of the information before the court”, which had been taken from the Criminal Procedure Rules, added anything of use in the context of family proceedings.

It was concluded the provision might be helpful in forced marriage or FGM protection order proceedings and should be retained.

Sub-paragraph (a)(iii): Jane Harris noted the impact it would have on judges deciding whether to give directions, given the huge number of people that might fall within the category of “undergoing medical treatment”. In some cases the medical treatment might not affect the quality of a person’s evidence but the person concerned might claim that it does.

Sub-paragraph (a)(i): “intelligence and social functioning” should read “intelligence or social functioning”.

Rule 3B.3 (Court’s duty to consider how a party can participate in proceedings)

The Committee agreed with Will Tyler’s suggestion to insert the words “if so” in paragraph (1) (and in rule 3B.4(1)) after the words “is likely to be diminished and”.

Rule 3B.4 (The court’s duty to consider how a party or a witness can give evidence)

Will Tyler questioned whether this rule could apply to children as well as to adult vulnerable witnesses. Lord Justice Ryder said the rule did not overtly apply to children, but it did not exclude them.

Will Tyler thought it would be preferable to split rules relating to children on participation and giving evidence from rules relating to adults on participation and giving of evidence. This approach was supported.

Rule 3B.6 (Measures)

Sub-paragraph (1)(c): Paul Stewart questioned what “a device to help communicate” might cover. It was agreed that this was a general term that would be able to include any future methods of communication developed by technology and it referred to a device used by a party or witness rather than a device provided by the court.

Sub-paragraph (1)(e): Judge Raeside wondered whether the provision should include a party or witness being questioned in court by the judge. Lord Justice Ryder was hesitant about specifically including a judge lest it suggested an obligation. He said, however, that he would look at the point with reference to section 31G(6) of the Matrimonial and Family Proceedings Act 1984 which provides in certain circumstances for the court to put, or cause to be put, questions to a witness.

Sub-paragraphs (1)(d) and (e): The Committee agreed with Mrs Justice Pauffley’s suggestion to substitute “with the assistance of” for “through”.

(iii) Other points raised

Likely to be diminished

Will Tyler thought the term “likely to be diminished” rather inelegant. He appreciated the need for generality but considered the phrase was not helpful.

Vulnerable witnesses

Judge Raeside thought the term needed to be defined and drew attention to the suggested definition in her paper. Richard Burton confirmed that the Youth Justice and Criminal Evidence Act 1999 defined a witness eligible for assistance by reference to the definition of mental disorder in the Mental Health Act 1983.

Marie Brock noted that the Vulnerable Witnesses and Children Working Group report recommended the use of the term ‘vulnerable and intimidated witnesses’.

Mrs Justice Pauffley was not keen on using the term “intimidated” as it would give oxygen to the intimidator. The Chair pointed out that draft rule 3B.5(h) covered this point and was broader than intimidation.

Views of the child

Jane Harris expressed concerns about raising expectations of children but having no mechanism to deliver, for example in private law proceedings where the parents were in agreement but the child was not. Mrs Justice Pauffley said in her experience where a child wanted to communicate they found a way, for example through a head teacher.

The Chair said in term of expectations this was an issue that could not be ignored. If a child wrote to the court, the court must engage with the child. Leaving aside resources, which fell on the judicial and court process, he did not think this would create any expectations that were not already there.

Jane Harris also raised the case of the small but significant number of children who are also carers.

The Chair said these concerns would be largely addressed by splitting the relevant rule into two parts.

United Nations Convention on the Rights of the Child

Hannah Perry referred to article 12 of the United Nations Convention on the Rights of the Child and the right of a child to be heard in proceedings on matters affecting the child. This was not limited to children with party status or who were the subject of proceedings. The Chair recommended that the judgment in ZH (Tanzania) v. Secretary of State for the Home Department [2011] UKSC4 be used as a useful cross-check. The Committee would not want to be exposed to criticism for falling short of what children needed.

Location of Rules in the FPR

Michael Horton suggested consulting on where in the FPR these rules should be placed as they did not necessarily fit after Part 3 which related to non-court dispute resolution. The Chair, however, thought the rules should be adjacent to the Part containing the court’s powers of case management (Part 4) rather than tagged on at the end.

Pre-recorded video evidence

Marie Brock made reference to pre-recorded video evidence. Lord Justice Ryder said that use of this facility might not be possible in all cases but drew attention to draft rule 3B.6(1)(f) which provided for measures to be set out in a practice direction and 3B.6(2) and (3) which enabled the court, where a measure was not available, to direct that it will sit at a location where the measure was available.

Joe Murphy informed the Committee that results of the piloting of pre-recorded video evidence in criminal courts were awaited and advised it might be premature to include such provision in draft rules for family proceedings.

Lord Justice Ryder said the ministry could respond to the consultation in those terms. A practice direction could provide for a phased introduction of this measure, although Joe Murphy expressed concerns about raising expectations in the consultation that it might not be possible to meet.

Overriding objective

Judge 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.

Next Steps

Lord Justice Ryder summarised what the Committee had agreed:

  • Those drafting changes that had been suggested and agreed be made prior to consultation.
  • A proposed amendment to the overriding objective be drafted prior to consultation
  • A revised draft of the rules be circulated to members within one week

In the meantime, a consultation paper was to be drafted incorporating the questions the Committee had identified. The paper would make clear that the proposals had been developed without the views of ministers or HMCTS/MoJ. John Hall said it might be possible for an addendum to be included setting out ministers’ initial thoughts.

A consultation period of two full months was agreed.

ANNEX 2

Courts Act 2003 ss 75-76 (as amended, mostly, by Crime and Courts Act 2013 alongside introduction of the family court)

75 Family Procedure Rules

(1)  There are to be rules of court (to be called “Family Procedure Rules”) governing the practice and procedure to be followed in family proceedings.

(2) Family Procedure Rules are to be made by a committee known as the Family Procedure Rule Committee.

(3) “Family proceedings” means—

(a) proceedings in the family court, and

(a) proceedings in the Family Division of the High Court which are business assigned, by or under section 61 of (and Schedule 1to) the Senior Courts Act 198, to that Division of the High Court and no other.

(4)The power to make Family Procedure Rules includes power to make different provision for different areas, including different provision—

(a)for a specified court or description of courts, or

(b)for specified descriptions of proceedings or a specified jurisdiction.

(5)Any power to make Family Procedure Rules is to be 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.

76 Further provision about scope of Family Procedure Rules

(1)Family Procedure Rules may not be made in respect of matters which may be dealt with in probate rules made under section 127 of the 1981 Act.

(2) Family Procedure Rules may–

(a) modify or exclude the application of any provision of the Crime and Courts Act 2013 County Courts Act 1984;

(aa) provide, subject to any provision that may be made in rules under section 31O(1) of the Matrimonial and Family Proceedings Act 1984, for any functions of a court in family proceedings to be carried out by officers or other staff of the court, and

(2A)Family Procedure Rules may, for the purposes of the law relating to contempt of court, authorise the publication in such circumstances as may be specified of information relating to family proceedings held in private.

(3)Family Procedure Rules may modify the rules of evidence as they apply to family proceedings in any court within the scope of the rules.

(4)Family Procedure Rules may apply any rules of court (including in particular Civil Procedure Rules) which relate to—

(a)courts which are outside the scope of Family Procedure Rules, or

(b)proceedings other than family proceedings.

(5)Any rules of court, not made by the Family Procedure Rule Committee, which apply to proceedings of a particular kind in a court within the scope of Family Procedure Rules may be applied by Family Procedure Rules to family proceedings in such a court.

(6)In subsections (4) and (5) “rules of court” includes any provision governing the practice and procedure of a court which is made by or under an enactment.

(7)Where Family Procedure Rules may be made by applying other rules, the other rules may be applied—

(a)to any extent,

(b)with or without modification, and

(c)as amended from time to time.

(8)Family Procedure Rules may, instead of providing for any matter, refer to provision made or to be made about that matter by directions.

[1] See introduction of the scheme by Ryder LJ in the minutes of FPRC meeting of 15 June 2015 at Annex 1 below

[2] I am sorry to be over-personal about this by the attitude of Ryder LJ to statutory rights can be deduced from Re JG (a child by her guardian) v Legal Services Commission and ors [2013] EWHC 804 (Admin), Ryder J at first instance, a case which might be thought to be overly political; and which was roundly overturned by the Court of Appeal in JG v Lord Chancellor and ors [2014] EWCA Civ 656

[3] Twelfth view from Sir James Munby P’s chambers at ###. These notes tend to be the starting point of a variety of family law reform initiatives. It represents a truly idiosyncratic means of development of family law administration without any real control or means of access for family law to democratic and philosophical ideas.

[4] https://dbfamilylaw.wordpress.com/2014/10/05/consultation-on-children-and-vulnerable-witnesses-court-proceedings/

[5] https://consult.justice.gov.uk/digital-communications/draft-amendments-to-family-procedure-rules/supporting_documents/annexachildrenvulnerablewitnessesfprcdraftrule.pdf

[6] Ryder LJ does not say of what the draft was intra vires.

[7] To follow

[8] See eg very extensive discussion of a case on this point in [2015] Family Law, where the common law seemed well-able to cope with the problem.

[9] It is interesting to note in the response to the point that FPRC very much leave the drafting of the rules to Ryder LJ

[10] The lay reader will not find this easily: MFPA 1984 on the Government legislation website has not yet been amended – over two years after amendment

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3 thoughts on “VULNERABLE INDIVIDUALS AND CHILDREN IN FAMILY PROCEEDINGS

  1. Just answer the last email about meet up dates, you crezzy rule lovin man amities!x   From: dbfamilylaw To: nlfedorski@yahoo.co.uk Sent: Sunday, 11 October 2015, 19:12 Subject: [New post] VULNERABLE INDIVIDUALS AND CHILDREN IN FAMILY PROCEEDINGS #yiv2446361675 a:hover {color:red;}#yiv2446361675 a {text-decoration:none;color:#0088cc;}#yiv2446361675 a.yiv2446361675primaryactionlink:link, #yiv2446361675 a.yiv2446361675primaryactionlink:visited {background-color:#2585B2;color:#fff;}#yiv2446361675 a.yiv2446361675primaryactionlink:hover, #yiv2446361675 a.yiv2446361675primaryactionlink:active {background-color:#11729E;color:#fff;}#yiv2446361675 WordPress.com | dbfamilylaw posted: “Response to consultationSUMMARYThis response to the Ministry of Justice draft consultation on amendments to Family Procedure Rules 2010 in relation to children and vulnerable individuals (‘the draft’) is prepared by David Burrows. He is a 42 year ” | |

  2. Reblogged this on | truthaholics and commented:
    “Mostly difficulties do not lie in the generalities which these draft rules deal with, but in particular types of proceedings and need for help for the vulnerable, for which payment must be made (and thus these rules do not provide) eg

    How do you, get into court and pay for, and advocate to cross-examine in the H v L&R case; or guarantee it will happen?
    How do you get the judge to realise that a person cannot read?
    How do you pay for court documents to be copied because someone cannot read English
    How do you get evidence to court where a person cannot face their (alleged) abuser?
    How do you pay for an advocate to the court where confidential documents must not be read by a party?
    Are any aspects of all this different if a party is in person (a point picked up in the original July 2014 working paper, but lost since)?”

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