What criminal proceedings procedures offer the family courts to help vulnerable witnesses?
The failure of the family proceedings rule-makers to provide protective rules for children and vulnerable witnesses in family and – to an extent – other civil proceedings tends towards a failure of the government to provide a fair trial (European Convention 1950 Art 6(1)) for such individuals. Protection has been available, to a sophisticated level, for children and vulnerable witnesses in criminal proceedings at least since the introduction of Youth Justice and Criminal Evidence Act 1999 (YJCEA 1999) Part 2. If it be accepted that YJCEA 1999 is mostly a codification of common law remedies, then the failure of judges in family proceedings to use them (see references below eg to Re S (Children)  EWCA Civ 83 (considered further below) compounds the unfair trail aspect.
In 2014 Sir James Munby, President of the Family Division, set up the Vulnerable Witnesses and Children Working Group (VWCWG) – with the suggestion that three areas be reviewed in relation to the evidence of children and vulnerable individuals: (1) judge’s meeting children, (2) children giving evidence and (3) ‘vulnerable people giving evidence in family proceedings’. This group published its final report, with proposed draft rules in March 2015; but the any rules are yet to be made. The work of the VWCWG will be considered in Part 6.
The special measures directions considered in this chapter include the evidence of children; in part because the VWCWG proposed amendments to FPR 2010. However, the ways in which children participate in proceedings are mostly dealt with in Chapter 19 under the respective Guidances for their evidence and meeting with the judge: Guidelines in relation to children giving evidence in family proceedings of 2011 ( Fam Law 70 (https://www.judiciary.gov.uk/wp-content/uploads/JCO/Documents/FJC/Publications/Children+Giving+Evidence+Guidelines+-+Final+Version.pdf); and Guidelines for judges meeting children who are subject to family proceedings of 2010 ( 2 FLR 1872, https://fnf.org.uk/phocadownload/downloads/guidelines_for_judges_meeting_children.pdf).
The special measures under YJCEA 1999 Part 2 are designed to help ‘vulnerable or intimidated witnesses’ to give their best evidence. As Lady Hale explained in R (D (a Minor)) v Camberwell Green Youth Court  UKHL 4,  1 WLR 393:
 … The aim of the special measures is to assist vulnerable or intimidated witnesses who might otherwise be unwilling to come forward at all or unable to give the best evidence of which they are capable.
Scheme under Youth Justice and Criminal Evidence Act 1999
Youth Justice and Criminal Evidence Act 1999 (YJCEA 199) Part 2 sets up a scheme for special measures for assistance of children and vulnerable witnesses in criminal proceedings. The scheme does not apply in family proceedings; but it will be considered in some detail here, first, because reference is made to it in a number of family cases (including, most prominently, by Lady Hale in Re W (Children) (Abuse: Oral Evidence) (above)); secondly, because it is the source for a number of the proposals of the VWCWG; and, thirdly, because many aspects of the YJCEA 1999 scheme represent the common law and may be used by analogy in family proceedings without any changes to substantive law or court rules.
Under YJCEA 1999 s 18(1)(a), the following special measures are available – as appropriate – to help children and vulnerable witnesses.
- preventing a witness from seeing a party, by ‘screen or other arrangement’ (s 23);
- allowing a witness to give evidence by live link (s 24) (ie video-link or other means for a witness, absent from the hearing room, to give evidence: s 24(8));
- hearing a witness’ evidence to the exclusion of others (ie in private, which is normally the case in children proceedings) (s 25);
- admitting video recorded evidence or cross-examination (s 27 and 28);
- questioning a witness through an intermediary (s 29);
- using a device to help a witness communicate (s 30);
- a direction may be given to dispense with the wearing of wigs and gowns when evidence is given (s 26).
Eligibility for assistance: ‘quality of evidence’ – special measures direction
The criterion for use of special measures is that, were it not for such measures, the quality of a witness’s evidence might be impaired. The ‘quality of a witness’s evidence’ (a term adopted by the VWCWG would-be reformers) is defined, for the entirety of Part 2 Chapter 2, by s 16(5) as follows:
(5) In this Chapter references to the quality of a witness’s evidence are to its quality in terms of completeness, coherence and accuracy; and for this purpose “coherence” refers to a witness’s ability in giving evidence to give answers which address the questions put to the witness and can be understood both individually and collectively.
YJCEA 1999 ss 16 and 17 create three categories of witness who may be eligible for assistance under Chapter 1 of the Act. YJCEA 1999 s 16(1)(a) defines a witness in criminal proceedings as eligible for assistance if under 17 at the time of the hearing fixed to consider a special measures direction. Section 16(1)(b) deals with witnesses who are otherwise eligible for assistance (ie a vulnerable witness). Section 16 provides as follows:
16 Witnesses eligible for assistance on grounds of age or incapacity
(1)For the purposes of this Chapter a witness in criminal proceedings (other than the accused) is eligible for assistance by virtue of this section—
(a)if under the age of 17 at the time of the hearing; or
(b)if the court considers that the quality of evidence given by the witness is likely to be diminished by reason of any circumstances falling within subsection (2).
(2)The circumstances falling within this subsection are—
(a)that the witness—
(i)suffers from mental disorder within the meaning of the Mental Health Act 1983;
(ii)otherwise has a significant impairment of intelligence and social functioning;
(b)that the witness has a physical disability or is suffering from a physical disorder.
YJCEA 1999 s 16(1)(b) deals with all other witnesses (ie other than children under 17), who may be eligible for assistance (ie vulnerable witnesses) and who come within the terms of s 16(2): namely that are mentally incapacitated with the terms of Mental Capacity Act 2005, or that otherwise the ‘witness has a physical disability or is suffering from a physical disorder’. Section 17(1) defines as eligible for assistance a witness where:… the court is satisfied that the quality of evidence given by the witness is likely to be diminished by reason of fear or distress on the part of the witness in connection with testifying in the proceedings. In the case of a child under s 16 or other individual under s 17 the court must consider any views of the witness concerned (ss 16(4) or 17(3)). The adult witness ceases to be eligible for assistance if s/he tells the court assistance is not required in giving evidence (s 17(4)).
If a witness comes within one of the categories in ss 16 or 17 s/he is eligible to be considered for assistance in the form one or more of the special measures directions set out in ss 23-30. Section 19 provides for setting up special measures directions for all witnesses who come within the provisions of ss 16 and 17 in criminal proceedings, whilst particular arrangements apply in relation to children (s 21). For all witnesses YJCEA 1999 s 19(1) and (2) provides for ordering of special measure directions and the factors the court takes into account in so doing.
Rights of a party to cross-examine
The question for the House of Lords in R (D (a Minor)) v Camberwell Green Youth Court  UKHL 4,  1 WLR 393 was whether an accused in criminal proceedings is entitled to cross-examine a child witness in the accused’s presence within the terms as to special measures and ‘special protection’ for a child under YJCEA 1999. The House of Lords held unanimously that the nothing in European Convention 1950 guarantees face-to-face questioning and the appeals were dismissed. It is necessary only that the defence have a proper opportunity to challenge a prosecution witness. Lord Rodger explained this:
 … Article 6(3)(d) of the Convention [has not] been interpreted as guaranteeing the accused a right to be in the same room as the witness giving evidence. What matters, as Kostovski v Netherlands shows, is that the defence should have a proper opportunity to challenge and question the witnesses against the accused. The decision of the European Commission of Human Rights in Hols v Netherlands Application no 25206/94, 19 October 1996, and the judgment of the Court in SN v Sweden Application no 34209/96, 2 July 2002, confirm that these requirements can be satisfied even where, for good reason, the accused is not physically present at the questioning. Here the good reason is to further the interests of justice by adopting a system that will assist truthful child witnesses to give their evidence to the best of their ability….
A child or other vulnerable witness is entitled to protection from cross-examination by an alleged assailant of a young person under YJCEA 1999 s 34. In family proceedings comments of Lady Hale in the Supreme Court can be referred to in support of this proposition, as to the present position at common law. In Re W (Children) (Abuse: Oral Evidence) (above) Lady Hale spoke of ‘special measures by analogy’, and made reference to the way family courts might make use of special measures:
 The family court will have to be realistic in evaluating how effective it can be in maximising the advantage while minimising the harm. There are things that the court can do but they are not things that it is used to doing at present. It is not limited by the usual courtroom procedures or to applying the special measures by analogy. The important thing is that the questions which challenge the child’s account are fairly put to the child so that she can answer them, not that counsel should be able to question her directly. One possibility is an early video’d cross examination as proposed by Pigot [ie Report of the Advisory Group on Video Evidence (1989). Another is cross-examination via video link. But another is putting the required questions to her through an intermediary. This could be the court itself, as would be common in continental Europe and used to be much more common than it is now in the courts of this country.
However, said Lady Hale, private family children proceedings created particular pressures, such that allegations are being pressed by one parent against the other; the child is rarely a party with the protection of a guardian or legal representation.
 In principle, the approach in private family proceedings between parents should be the same as the approach in care proceedings. However, there are specific risks to which the court must be alive. Allegations of abuse are not being made by a neutral and expert local authority which has nothing to gain by making them, but by a parent who is seeking to gain an advantage in the battle against the other parent. This does not mean that they are false but it does increase the risk of misinterpretation, exaggeration or downright fabrication. On the other hand, the child will not routinely have the protection and support of a Cafcass guardian. There are also many more litigants in person in private proceedings. So if the court does reach the conclusion that justice cannot be done unless the child gives evidence, it will have to take very careful precautions to ensure that the child is not harmed by this.
Measures available in family courts
In Re A (Sexual Abuse: Disclosure)  UKSC 60,  1 FLR 948 Lady Hale explained how family law was already plentifully provided with means to protect vulnerable witnesses. For example, there are ways for child witnesses to avoid direct ‘courtroom confrontation’; and this could be extended ‘to other vulnerable witnesses’ (as in the case of Re A: Re A involved disclosure of the statements made by a vulnerable young adult witness (‘X’) to social workers about the child A; and the likely later calling of X to give evidence during A’s fathers claim for contact with A):
 It does not follow, however, that X will have to give evidence in person in these proceedings.… 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 such as X. These could include the facility to have specific questions put to the witness at the request of the parties. If she is too unwell to cope with oral questioning, the court may have to do its best with her recorded allegations….
Alternatively questioning could be set up in such a way as to avoid face-to-face confrontation between the party to proceedings and the vulnerable witness:
 … On the other hand, oral questioning could be arranged in ways which did not involve face to face confrontation. It is not a requirement that the father be able to see her face. It is, to say the least, unlikely that the court would ever allow direct questioning by the father, should he still (other than in this court) be acting in person. The court’s only concern in family proceedings is to get at the truth. 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.
Justice for an alleged abuser
The position of the alleged abuser or ‘accused’ – like K’s brother and father of the children in Re S (Children)  EWCA Civ 83 (because special measures could not be fixed for a young person witness (K) against the father, her mostly hearsay evidence was accepted by the judge and in the light of her refusal to give oral evidence); or the father in Re A (Sexual Abuse: Disclosure)  UKSC 60,  1 FLR 948 – must not be forgotten. They too have rights. European Convention 1950 Art 6(1) guarantees a fair trial; and, in the case of criminal proceedings Art 6(3)(d) intends that all persons charged with a criminal offence should, as a minimum, have the right:
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
In R (D (a Minor)) v Camberwell Green Youth Court (above) the House of Lords held that the provisions of the 1999 Act did not infringe Art 6(3)(d) rights, so long as means were found to ensure that an accused or other party could put questions to challenge the evidence of an opposing party’s witness.
Fairness will be served – and as far as possible European Convention 1950 Art 6 complied with – if any measures in family proceedings can achieve the equivalent of YJCEA 1999 Part 2. And this is especially so where – as with care proceedings – the consequences of the process are as close to those in a criminal trial as can be in family proceedings (as occurred in Re S (above) and as Gloster LJ made clear in her dissenting judgment in that case).