Domestic abuse assistance scheme

Domestic abuse: re-abuse in non-molestation order proceedings

 

The proposal set out here, arises from the issue identified by Women’s Aid and, in case law, by Roderic Wood J in H v L and R [2006] EWHC 3099 (Fam) [2007] 2 FLR 162 over ten years ago. The problem was – to an extent – intended to be provided for by a government bill (Prison and Courts Bill) lost with the 2017 election. As Roderic Wood pointed out, and as explained below, criminal proceedings provide protection from re-abuse in the witness box by a respondent/accused in person cross-examining the complainant or other witness (Youth Justice and Criminal Evidence Act 1999 (‘YJCEA 1999’) s 38(4)). Family proceedings do not provide the same, or any, protection.

 

The scheme proposed here can provide a prototype for an effective scheme for the government to run; and which will cover the problems identified by such judges as Lady Hale in the Supreme Court and Hayden and Peter Jackson JJ in the Family Division in for example cases like Re A (Sexual Abuse: Disclosure) [2012] UKSC 60, [2013] 1 FLR 948, [2013] 2 AC 66, Re A (A Minor: Fact Finding; Unrepresented Party) [2017] EWHC 1195 (Fam), Hayden J and H v D (Appeal – Failure of Case Management) [2017] EWHC 1907 (Fam). In all of these cases the witness or party could have been assisted only if the bill’s ‘significant distress condition’ exemption in the bill applies.

 

Cross-examination in person of a complainant in family proceedings

 

YJCEA 1999 s 35 and 36 makes unlawful cross-examination in person of a witness by an accused in person in relation to certain charges, mostly sexual, of violence or against children. YJCEA 1999 s 37[1] is a catch-all section. It leaves it, finally, to the court to decide whether a direction should be made (s 37(2)) that such cross-examination should not be permitted, with the factors for the court to consider in making its decision in s 37(3).

 

If ss 35-7 apply – that an accused in person should not cross-examine in person a witness – then s 38 come into effect. The court must ‘invite’ the accused to instruct an advocate, failing which – no one can be compelled to have legal representation (European Convention 1950 Art 6.3(c) – ‘the court must consider whether it is necessary in the interests of justice for the witness to be cross-examined by a legal representative appointed to represent the interests of the accused’ (s 38(3)). Then s 38(4) applies, and requires the court to appoint an advocate to cross-examine:

 

(4)If the court decides that it is necessary in the interests of justice for the witness to be so cross-examined, the court must appoint a qualified legal representative (chosen by the court) to cross-examine the witness in the interests of the accused.

 

Advocate not responsible to the respondent

 

Section 38(5) provides that: ‘A person so appointed shall not be responsible to the accused.’ Provision is made under YJCEA 1999 s 40 for payment of ‘the proper fee or costs of a legal representative appointed under s 38(4)… and any expenses properly incurred in providing such a person with evidence or other material in connection with his appointment’ from public funds.

 

European Convention 1950 Art 6.3(d) gives a defendant in criminal proceedings the right to examine ‘witnesses against him’; though this need not be face to face (R v Lubemba & Ors [2014] EWCA (Crim) 2064, [2015] 1 WLR 157). It is likely that analogous rules in relation to Art 6.3 would apply in domestic abuse proceedings under Family Law Act 1996 Pt 4 in view of the seriousness of some of the applications which are equivalent to, and sometimes of the same facts as, criminal charges.[2]

 

Before the 2017 general election the government proposed a scheme similar to this as part of Prison and Courts Bill. Clause 47 of that bill proposed a variety of amendments to Matrimonial and Family Proceedings Act 1984 to cover the proposal. It was more limited than that needed (see below). It was lost when the election was called and has not so far been revived.

 

A voluntary scheme

 

For the time-being, to assist complainants and the courts, a scheme of free (pro bono) advocates could surely be set up. Financial assistance will be sought for the expenses of such advocates. Thus far, neither Resolution (a group of family lawyers, mostly solicitors) nor Family Law Bar Association will directly help. Both groups say the Government must take action, though FLBA may help with publicising any voluntary scheme to its members but no more.

 

If we wait for the government, especially for a Tory Government, we could wait for ever. Most new schemes to help people are started by volunteers. If we waited for the government there might be only fee-paying schools and few hospitals or libraries. Reforming Labour governments have helped to ease that: the NHS, state education and legal aid, freedom to roam and human rights; even YJCEA 1999 itself.

 

Resolution and FLBA probably think that a scheme proposed by the government (in line with YJ s 38(4) and funded as under s 40) will solve the problem; and that therefore we should wait till the Government get on with it as they promised a year ago. That is all very well. The Government are doing nothing at present; and judges such as Hayden and Peter Jackson JJ are having to make do as they watch witnesses and parties being further abused in cross-examination. In Re A (A Minor: Fact Finding; Unrepresented Party) (above), Hayden J explained the position:

 

[60] It is a stain on the reputation of our Family Justice system that a Judge can still not prevent a victim being cross examined by an alleged perpetrator. This may not have been the worst or most extreme example but it serves only to underscore that the process is inherently and profoundly unfair. I would go further it is, in itself, abusive. For my part, I am simply not prepared to hear a case in this way again. I cannot regard it as consistent with my judicial oath and my responsibility to ensure fairness between the parties.

 

Over ten years ago in H v L and R (above) Roderic Wood J pointed out the extent to which family proceedings lag behind criminal cases in protecting the vulnerable witness from re-abuse. He was lucky enough to secure help from the Attorney-General in that case. That will not happen again. Under this scheme a small number of advocates are being asked to help courts, if judges in the small number of cases which apply, ask for assistance for an unrepresented alleged abuser to cross-examine and alleged victim. This may also have the advantage of providing the Government with a prototype.

 

David Burrows

26 December 2017

 

[1](1)This section applies where, in a case where neither of sections 34 and 35 operates to prevent an accused in any criminal proceedings from cross-examining a witness in person—

(a)the prosecutor makes an application for the court to give a direction under this section in relation to the witness, or

(b)the court of its own motion raises the issue whether such a direction should be given.

(2)If it appears to the court—

(a)that the quality of evidence given by the witness on cross-examination—

(i)is likely to be diminished if the cross-examination (or further cross-examination) is conducted by the accused in person, and

(ii)would be likely to be improved if a direction were given under this section, and

(b)that it would not be contrary to the interests of justice to give such a direction,

the court may give a direction prohibiting the accused from cross-examining (or further cross-examining) the witness in person.

[2] In H v L and R (below) Roderic Wood J took the view that in civil proceedings a right to cross-examine existed thanks to Art 6.3(d): ‘[6]… Although, in principle, Art 6(3)(d) permits a defendant the right to cross-examine in person such a complainant, that particular right was circumscribed by s 34A of the Criminal Justice Act 1988, which forbids a defendant in a criminal trial from cross-examining a child witness personally. A further inhibition on such a practice was put in place by s 35 of the Youth Justice and Criminal Evidence Act 1999 (the 1999 Act).’

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Top twelve family law cases for 2017

 

Miller to Mental Capacity Act 2005

 

A review of my top twelve family law cases for 2017 must mention – no more – R (Miller & anor) v Secretary of State for Exiting the European Union [2017] UKSC 5, [2017] 2 WLR 583. It drew attention Brussels IIA (Council Regulation (EC) No 2201/2003 of 27 November 2003 Concerning Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters and in Matters of Parental Responsibility) as being an example of legislation which any ‘Great Reform Bill’ (such a silly name, now European Union (Withdrawal) Bill)) could not replace. It requires co-operation from other EU legislatures and judiciary which may – or may not: we do not know yet – be forthcoming.

 

Lady Black must be congratulated for her promotion to the Supreme Court; but for clarity of law-making her brother McFarlane LJ remains the star. In the High Court it is hard to choose only a handful of cases when we have lawyers of the calibre of Peter Jackson (now LJ), Cobb, Keehan, MacDonald, Hayden and Baker JJ pushing out the judgments (I don’t mention Mostyn J, who is too self-indulgent; and he is too wobbly as a lawyer to be a good judge).

 

It is odd that it is the male judges who send in their judgments to BAILII. The common law (for it is reported, not unreported decisions which frame the law) – like other things in life, perhaps? – tends to be made by boys, even in family law. I have limited each Family Division judge to only one case. No women reach this cut, which may be very unfair: where are Parker or Theis, Russell or Roberts JJ, for example? Not even Lady Hale, whose judgements in her thirteen years in the Supreme Court have done so much to reform and define family law, makes it in Supreme Court judgments this year.

 

Nor have I found it possible to include in my dozen one judgement from the President, Sir James Munby. Perhaps in part this is because amongst his duties is work on obscure subjects like HRH Princess Margaret’s will and cases brought by the Queen’s Proctor such as Grasso v Naik (twenty-one irregular divorces) [2017] EWHC 2789 (Fam). Twenty-one divorce petitions issued from the same address by a struck-off barrister were revoked or set aside. After the initial explanation of the law and a scan of the evidence you could tell that Sir James was thoroughly bored by the whole thing. Neither case – the will and the QP application – add much to the use or ornament of the principles of family law.

 

The appellate courts

 

2017 began with all eleven Supreme Court Justices delivering their split (8:3) judgements in Miller. Birch v Birch [2017] UKSC 53, [2017] 2 FLR 1031 explained that an undertaking, pre-curial to a court order could be varied in narrow and appropriate circumstances (Birch by the way was ignored by Mostyn J in his administrative exercise of CH v WH (Power to order indemnity) [2017] EWHC 2379 (Fam) as explained here https://dbfamilylaw.wordpress.com/2017/12/18/when-is-a-financial-provision-order-not-an-order/). R (UNISON) v Lord Chancellor (Equality and Human Rights Commission and another intervening) [2017] UKSC 51, [2017] 3 WLR 409 makes the cut as a family law case. It is pervasive to all litigation. It elegantly and authoritatively defines rights to justice and the rule of law.

 

The star for me of Court of Appeal cases is Re T (A Child) [2017] EWCA Civ 1889 in which McFarlane LJ explains the breadth and utility to parties and children in family proceedings of the non-molestation order under Family Law Act 1996 s 42; in this case to protect a child who was in foster care. In so doing he refuses to define ‘molestation’ or ‘domestic abuse’ (see, by contrast, the effort to do so in the revised FPR 2010 PD12J para 3: for a pre-Re T discussion of PD12J see https://dbfamilylaw.wordpress.com/2017/11/18/lord-scarman-and-a-definition-of-domestic-abuse/). It depends on the circumstances and whether they come within the broad meaning of molestation in Family Law Act 1996 s 42.

 

In Hart v Hart [2017] EWCA Civ 1306 Moylan LJ produced a master-class on the back-ground to the modern – ie post White v White [2000] 1 AC 596, [2000] 2 FLR 981, [2000] UKHL 54 – law on ancillary relief; and in particular in relation to ‘non-matrimonial assets’ (eg inherited, after acquired or earned by exceptional effort assets). Mrs Hart, much to the unbridled disgust of her own lawyers, Irwin Mitchell (who should have restrained their comments on the judgment) failed in her appeal. A judge has a wide discretion in these things. All lawyers, Irwin M included, must learn that discretion does not always fall the way you expect – or in the way you have advised your client to expect.

 

In AM (Afghanistan) v Secretary of State for the Home Department [2017] EWCA Civ 1123 Sir Ernest Ryder (as President of Appeals Tribunals) emphasised that care is needed by courts in how they treat the evidence of vulnerable witnesses (here in an immigration appeals tribunal). It is an important case for anyone acting for a vulnerable party or witness in any form of court proceedings: criminal, family, civil or administrative tribunal (as here). Two particular issues arose which are relevant also eg to children proceedings: the way in which the credibility of a child or other vulnerable witness should be assessed against other objective evidence in the particular case; and the importance of flexibility of procedure for the hearing of vulnerable and child witnesses (including taking account of recommendations of expert witnesses as to how this could be done) (please note authors of the recent FPR 2010 Pt 3A on vulnerable witnesses: and see David Burrows on ‘Evidence of children and vulnerable witnesses: Part 1’).

 

European cases

 

Maybe I’ve been a little biased in singling out EU regulation cases; but the hole being bored in our family justice system is still only present, for now, in its ignoral by most family lawyers. In B v B (Maintenance Regulation – Stay) [2017] EWHC 1029 (Fam) MacDonald J explained the background to the stay jurisdiction and why in this case the former wife and the English courts must await a decision from the Milan court. In FE v MR & Ors [2017] EWHC 2298 (Fam) Baker J considered whether Brussels IIA Art 15 enables the court of a member state (a requesting court, R) to request another to transfer a case from that member state’s court to R’s court. Were the children’s circumstances exceptional and would the requesting court ‘be better placed to hear the case’ (Art 15.1). Baker J considers the factors which should influence him in requesting a Spanish court to transfer a case to the English courts, where two children aged 14 and 11 of Spanish parents, were living in England, but had been subject to proceedings in Spain for four years.

 

One money, one ‘private law’ children case; and finally a ‘public law’ case, all under Brussels IIA. In Redbridge LBC v D, E, F and G (Children: Art 15 – transfer of the proceedings) [2017] EWFC B82, HHJ Carol Atkinson as High Court judge dealt with an application under Art 15 in respect of 4 Roma heritage children from Romania. An application for a transfer of the proceedings to Romania, pursuant to Art 15 was issued by the mother in April 2017. The English court had jurisdiction based on habitual residence. Judge Atkinson provides a text-book analysis of the law to determine this application, by reference to leading case law and concluded that it would not be in the ‘best interests’ of the children to transfer the children; at least not at this stage.

 

In the tragic case of Re Gard (A Child) [2017] EWHC 1909 (Fam) (and see ‘Lessons from Gard’), Francis J did what a Family Division judge sometimes has to do, and he did so with great dignity and care. Charlie suffered severe brain damage and could not see or hear or breathe because of a mitochondrial condition. Your heart bleeds for his parents, who – or on whose behalf – every legal and medical stone was turned. Spare a thought too for the Family Division judge who has to say a child must die.

 

In Wolverhampton City Council v JA & Ors [2017] EWFC 62, Keehan J – with enormous care, and attention to detail of the evidence – explained why children should go into care and why the ABE evidence adduced before him was admissible and credible. An oddity of the case remains that information which should have been covered by legal professional privilege – as I read the report (see eg here) – was compelled to be produced by a lawyer who took part in the early stages of the case.

 

Peter Jackson J (as he then was) would be the first to accept that Re A (Letter to a Young Person) (Rev 1) [2017] EWFC 48 broke no new ground, in law. It has to be included here as a very real attempt to open up to a ‘young person’ (a young boy who had, originally, made his own application to go to live with his father in a ‘Scandinavian’ country). When courts are being reminded daily that the views of those children mature enough to be consulted – if they want to be consulted – must be taken into consideration (see Charter of Fundamental Rights of the European Union Art 24: also proposed to go with EU withdrawal), for a judge to ensure that the traffic flows in both directions is surely a very good thing?

 

My favourite case of 2017 is Re S (Child as Parent: Adoption: Consent) [2017] EWHC 2729 (Fam). In it Cobb J combines, with the typical sensitivity of a fine children lawyer, an understanding of how one of my favourite cases of all time – Gillick v West Norfolk and Wisbech AHA [1985] UKHL 7, [1986] 1 AC 112, [1986] 1 FLR 224 – with a subject which is essential to all family lawyers Mental Capacity Act 2005. He shows how these two subjects complement one another in relation to a child’s or other person’s understanding and ability to consent (see eg ‘Capacity to consent’).

 

Happy Christmas to any and all of my readers…

 

David Burrows

24 December 2017

 

Non-molestation and open court hearings

Is it the law that family court injunctions be heard in open court

 

In A child and the open justice principle I asked why the ‘child’ Charlie Pearce must – rightly, surely? – have his name published after his attempted murder trial (R v Pearce (Press Restrictions) Haddon-Cave J (7 December 2017); whilst, for example, the names be kept private of the parents of the unattractive stalking – and worse – mother and her cohabitant (‘Mr JM’) of 10 year-old T in Re T (A Child) [2017] EWCA Civ 1889 (23 November 2017). I continued: why are parents whose children, at their hands, protected sometimes from serious harm are not named; whereas the name of Mr Khuja (reported on BAILII as ‘PNM’), who investigated for serious crimes but not prosecuted for any offence is made public (Khuja v Times Newspapers Ltd [2017] UKSC 49.

 

Most startlingly, a man (say, ‘R’) can be brought anonymously (ie ‘in private’ or secretly) before the family courts for often dire forms of ‘molestation’ of their partner or children (Family Law Act 1996 (‘FLA 1996’) Pt 4); yet R, if prosecuted, will be dealt with in open court, on the same facts. Are the family courts, it might fairly be asked, trying to keep R’s behaviour secret? Is the ‘scourge’ (as Sir James Munby P has described it) of domestic violence and abuse to be dealt with behind closed family courts’ doors? If R breaches any injunction, this will be dealt with in public – though not in family proceedings – as a criminal offence FLA 1996 s 42A.

 

Family proceedings: hearings ‘in private’

 

The rule in family proceedings since April 2011 is said to be that all proceedings covered by Family Procedure Rules 2010 (‘FPR 2010’), save where otherwise ordered or the rules say something else, are to be in ‘private’ (r 27.10(1)). ‘In private’ means that ‘the general public has no right to be present’ (r 27.10(2)).

 

Two important common law principles are in play here:

 

  • That all hearings must be in open court (Scott & Anor v Scott [1913] UKHL 2, [1913] AC 417; affirmed in eg European Convention 1950 Art 6.1), unless administration of justice or eg the welfare of children (as now summarised in Civil Procedure Rules 1998 (‘CPR 1998’) r 39.2(3)) requires confidential (or ‘private’?) hearing. What is meant by ‘private’ was explained by the Court of Appeal in Clibbery v Allan [2002] EWCA Civ 45, [200] Fam 261, [2002] 2 WLR 1511, [2002] 1 FLR 565
  • The law cannot be changed by a rule save where statute permits: see eg Dunhill v Burgin (Nos 1 and 2) [2014] UKSC 18, [2014] 1 WLR 933 where Lady Hale said at [27]: That rules cannot ‘change the substantive law unless expressly permitted so to do by statute: see Re Grosvenor Hotel Ltd (No 2)[1965] Ch 1210’ (Senior Courts Act 1981 s 51(1) which permits rules to create substantive law on costs is an example of the exception).

 

The passage (italicised below) with which Lady Hale agreed was from Lord Denning MR where he said in Re Grosvenor Hotel, London (No 2) [1965] Ch 1210 at 1243 (of an attempt by rule-makers to change the law on public interest immunity):

 

The truth must be faced that, if this rule is within the powers of the Rule Committee to make, the hands of the judges are tied. They have no option but to act on [what] the Minister or of the permanent head of his department [says]. What then are the powers of the Rule Committee? They can make rules for regulating and prescribing the procedure and practice of the court, but they cannot alter the rules of evidence, or the ordinary law of the land. The law as to Crown privilege is not mere procedure or practice. It may perhaps be said to be a rule of evidence, but I would rank it higher. It is a principle of our constitutional law which is to be observed in the administration of justice, not only when a witness is called to give oral evidence, but also when a party is called upon to give discovery…. If this rule only states the existing law, there is no harm in it. But if it gives the government departments a veto on the production or inspection of documents — to a greater extent than that which is warranted by law — the rule is, in my opinion, bad.

 

Delegated legislation and Parliamentary will

 

At this point one judicial canard – with respect to, for example, MacDonald and Mostyn JJ – must be laid to rest. Both those judges have given judgments which suggest that Parliament have somehow ‘expressly provided’ for a change in the law from open court to private hearings for all family proceedings (save where for eg divorce hearings they are in open court) by the fact that the Lord Chancellor’s Family Procedure Rules Committee has changed the rules.

 

Such express provision of Parliament is not so. Like the majority of delegated legislation, rules are made under the negative resolution procedure (Courts Act 2003 s 79(6)). Only one set of such legislation has been queried by a member of either House in the last 37 years. Courts Act 2003 ss 75 and 76 make it clear that it is the rules committee which makes the rules, not – even under any constitutional law fiction – that Parliament has done the job.

 

Thus in HRH Louis Xavier Marie Guillaume Prince of Luxembourg, Prince of Nassau and Prince of Bourbon-Parma v HRH Tessy Princess of Luxembourg, Princess of Nassau and Princess of Bourbon-Parma & Anor [2017] EWHC 3095 (Fam), Macdonald J said of the rules on a number of occasions words to the effect of:

 

[87] … In this regard, I note again that Parliament has expressly provided in FPR r 27.11(1)(a) for the media to be excluded from hearings conducted for the purpose of judicially assisted conciliation or negotiation…

 

In Appleton & Anor v News Group Newspapers Ltd & Anor [2015] EWHC 2689 (Fam), [2016] 2 FLR 1 Mostyn J spoke of Parliament specifically maintaining proceedings in private (which seems to be in direct opposition to what Lord Denning MR said over 50 years ago: it is rule-makers not Parliament, who – in reality – make the rules):

 

[14] … Parliament when passing the rules specifically maintained these proceedings as private, and denied members of the public admission to them.

[15] … It is inconceivable that Parliament could have intended to destroy the effect of the implied undertaking when it allowed the press to observe these private proceedings as a watchdog….

 

Parliament did not even contemplate the ‘implied undertaking’. It is not mentioned in FPR 2010 at all. It is mentioned in rule form in CPR 1998 r 31.22 (intended to reverse the former rule in Harman v Secretary of State for the Home Department [1983] 1 AC 280, [1982] 2 WLR 338). Formally that rule does not apply in family proceedings. What precisely the ‘implied undertaking’, and whether Harman still applies, in family proceedings is muddled. Probably it is best described, for family proceedings, as in line with CPR 1998 r 31.22 (see discussion in Family Court Practice 2017 under FPR 2010 Pt 21).

 

Rule in Clibbery v Allan

 

Clibbery v Allan [2002] EWCA Civ 45, [200] Fam 261, [2002] 2 WLR 1511, [2002] 1 FLR 565 concerned whether Ms Clibbery could pass documents which she received from the respondent in proceedings under FLA 1996 Pt (an unsuccessful occupation order application), so far as they were not covered by the ‘implied undertaking’ not to release documents required to be produced under compulsion of (then) ‘discovery’. In a frequently cited case and agreeing in the outcome with Munby J below (Clibbery v Allan [2001] 2 FLR 819) the Court of Appeal (Dame Elizabeth Butler-Sloss P with whom Thorpe LJ agreed) held that though the hearing was in ‘private’ documents could be released by Ms Clibbery to the press. Anonymity seems not to have been in issue.

 

Dame Elizabeth explained the term ‘private’ – as distinct from open court and ‘secret’ or ‘confidential’ – as follows:

 

[19] … I am driven to recall Humpty Dumpty: ‘When I use a word – it means just what I choose it to mean – neither more nor less.’

[20]   I would therefore suggest that there are three categories of case, those heard in open court, those heard in private and those heard in secret where the information disclosed to the court and the proceedings remain confidential.

 

This tri-partite division remains the common law position in family proceedings; and on the Grosvenor Hotel principle it cannot be changed by delegated legislation. It is not altered by such cases as Appleton v Gallagher and Luxembourg v Luxembourg since these do not apply in the case of Family Law Act 1996 Pt 4.

 

Family Law Act 1996 Part 4, anonymity and ‘private court’ hearings

 

Subject to the ‘implied undertaking’ (or CPR 1998 r 31.22) point, the law would seem to be as in Clibbery v Allan. That as the Court of Appeal had explained in Hodgson v Imperial Tobacco Ltd [1998] 1 WLR 1056, ‘privacy’ means that, space permitting, the public are allowed into a court held in private (after all the words of r 27.10(2) do not prevent asking for permission: that is how it works with any situation where a person has no right, but can ask to come in, all the same).

 

Thus a frightened ex-partner or spouse can invite friends or family to come to court with her. They do not need special permission and the court can be asked to make room for them. Whether the press and others – eg to see how any successor to Prison and Courts Bill cl 47 works in practice – can come into court: that awaits another day, another discussion of this absurdly complex area of law. There seems to be no logic in the same facts being dealt with in ‘private’ (if not in secret) in a family court, but in open court in criminal proceedings; but logic does not rule family law when the open justice principle may apply.

 

And anonymity: surely that cannot truly be in question? The names of mother and Mr JM – especially in the Court of Appeal – should surely be public. To that extent, at least, family courts need not afford secrecy to those who molest or otherwise abuse their partners, children or other members of their family – unless publicity of their names might be jig-saw linked back to any children concerned.

A child and the open justice principle

Application of the open justice principle to a child in criminal proceedings

 

Why was the name of the 17 year-old Charlie Pearce (born 3 July 200), a double rapist and attempt murderer publicised whilst he was still a child (R v Pearce (Press Restrictions) Haddon-Cave J (7 December 2017); but the names kept private of the parents of the unattractive stalking – and worse – mother and her cohabitant (‘Mr JM’) of 10 year-old T in Re T (A Child) [2017] EWCA Civ 1889 (23 November 2017). Why is it that parents who have been responsible for allowing their children to suffer sometimes serious harm while in their care are not named; whereas the name of Mr Khuja (reported on BAILII as ‘PNM’), who was not prosecuted for any offence is made public (Khuja v Times Newspapers Ltd [2017] UKSC 49).

 

Most startlingly, a man (say) can be brought (as were T’s parents) anonymously – as family lawyers call it, ‘in private’ – before the family courts for relatively dire forms of ‘molestation’ of their partner or children; yet be prosecuted in public on the same facts. Are the family courts, it might fairly be asked, trying to keep something secret. Is the ‘scourge’ (as Sir James Munby P has described it) of domestic violence and abuse to be dealt with behind closed family courts’ doors?

 

R v Pearce rehearses the arguments which relate to questions of anonymity – or not – in the context of prosecution of a child. The principles it sets out could apply equally to all family proceedings where privacy is assumed; but where privacy, it can be argued, should not – in law – rule the day. (It should also be said that the case shows why the rule of law – and therefore English and Welsh society as a whole – needs judges of the conscientiousness of Haddon-Cave J (I find it difficult to believe that the judge did other than write up his judgement as he passed a quiet evening in his lodgings in Leicester).)

 

In this note I will look at the Pearce case. In a separate article I will deal with the question of whether in cases like Re T, and others involving ‘molestation’ – ie abuse – of a party, it is lawful for family judges and magistrates (despite what Family Procedure Rules 2010 may say) to grant anonymity, other than for any children involved.

 

Anonymity for Charlie Pearce?

 

Pearce’s was a nasty crime of ‘sheer brutality’ ([50]). Aged just 17 he went out in Leicester with a ‘concrete slab’ and clubbed down a student. Whilst she was unconscious he raped her vaginally and anally, and stole her had-bag. He was found guilty of attempted murder and pleaded guilty to two rape and other charges. His victim survived thanks to excellent and prompt medical attention. Because Pearce was under 18 should his name be published?

 

The statutory provision which permits child witnesses, victims and defendant under 18 not to be named is a statutory exception to the open justice principle. It is set out in Youth Justice and Criminal Evidence Act 1999 s 45, which as Haddon-Cave J explains subtly, but distinctively, alters the previous position as to anonymity of children in criminal proceedings (Children and Young Persons Act 1933 s 39: (1) There must be good reason for the court to impose anonymity; and (2) this can only last while a person remains under 18 ([22]).

 

Haddon-Cave J provides a text-book summary of the law in relation to open justice ([14]-[18]); and in particular to its operation in children cases and where the European Convention 1950 (human rights) balance – ‘intense focus on comparative… rights’ – is required by Re S (Identification: Restrictions on Publication) [2004] UKHL 47, [2005] 1 AC 593, [2005] 1 FLR 591 (he calls the case Re S (FC) (a child) see eg [25]). He relates his assessment of the law to United Nations Convention on the Rights of the Child 1989 especially Arts 3 (best interests a primary consideration); 16 (no child subjected to arbitrary interference with privacy etc) and 40 (privacy of child suspects).

 

Haddon-Cave J refers specifically to the child’s ‘voice’ – a factor more family courts judges could perhaps bear in mind – as set out in Charter of Fundamental Rights of the European Union (2000/C 364/01) Art 24, which he explains thus:

 

[27] The rights of a child to have a “voice” finds expression in Article 24 of the EU Charter of Fundamental Rights entitled “The Rights of a Child” (“UNCFR”). Under Article 24(1) UNCFR children have the right to such protection and care as is necessary for their wellbeing: “They may express their views freely. Such views shall be taken into consideration on the matters which concern them in accordance with their age and maturity”.

[28] Under Article 24(2) UNCFR, in all actions relating to children a child’s best interests must be a primary consideration. Article 24(3) states: “Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests”.

 

All that said, cases under YJCEA 1999 s 45 are fact specific (R v Markham and Edwards [2017] EWCA Crim 739). Applications for anonymity should not be based only on abstract open justice principles.

 

Human rights balance

 

In his assessment of the Re S European Convention 1950 ‘balancing exercise’ Haddon-Cave J had little difficulty in saying it would not be right to ‘keep the public in the dark about [Pearce’s] identity’; and anyway he would be 18 in only seven months’ time. Article 10 (freedom of expression) and the open justice principle trumped any force in Pearce’s Art 8 (right to a private life) arguments.

 

Many of the same arguments as to privacy and publicity can now be addressed to the domestic abuser in family proceedings. He, or she (such as in the case of T’s mother), may not have abused another person on the scale undertaken by Charlie Pearce; but the open justice principle is a very long-standing principle which cannot be overridden by a mere rule made by subsidiary legislation passed by the negative resolution procedure. Watch this space….

When is a financial provision order not an order?

Standard financial orders

 

In his introduction to Practice Guidance: Standard Financial and Enforcement Orders of 30 November introduced by Ministry of Justice at  Sir James Munby P included the following of the financial orders:

 

These orders do not have the strict status of forms within Part 5 of the FPR 2010 and their use, although strongly to be encouraged, is not mandatory. Moreover, a standard order may be varied by the court or a party if the variation is required by the circumstances of a particular case. There will be many circumstances when a variation is required and departure from the standard form will not, of course, prevent an order being valid and binding. The standard orders should however represent the starting point…

 

‘Strongly to be encouraged, but not mandatory’: that is surely a correct assessment of the law?

 

If this is what Sir James truly believes to be the position in law, and not that this was something that was drafted by a civil servant and merely signed off by the President, then it is different from what Mostyn J asserts is the position in his administrative direction (wrongly described by some – eg Ashley Murray at 1331 [2017] Family Law – as a ‘judgment’) in CH v WH (Power to order indemnity) [2017] EWHC 2379 (Fam). Mostyn J claims that what he said was approved by the President. Either Mostyn J is misrepresenting the President; or the President is – most out of character – confused as to the law. His assertion of the status of the draft orders does not accord with what Mostyn J assrts to be teh position in CH v WH.

 

An order to procure release from a mortgage

 

In CH v WH [2017] EWHC 2379 (Fam) an uncontested consent order was remitted to Mostyn J for approval. The order derived from a draft consent order which was based on financial orders drawn up by the ‘Financial Remedies Working Group’ (FRWG; see Financial Omnibus Orders (the ‘omnibus orders’)). Under Mostyn J’s chairmanship of FRWG the omnibus orders were drafted. Mostyn J takes no account of what was said in Wicks v Wicks (below) of orders which are outside MCA 1973 (see eg his para [8] below).

 

Two district judges had refused to approve the parties’ order which included a requirement that each of them, on receiving a transfer each of two matrimonial properties from the other, should use their ‘best endeavours to procure the release of the other party’ from the mortgage on the property they respectively received. The two district judges thought that to order this – as the omnibus orders require – was outside powers under MCA 1973. They were correct; and force is given to their position by a Supreme Court decision in Birch v Birch [2017] UKSC 53, [2017] 2 FLR 1031.

 

Mostyn J overrode the district judges’ decisions with the words:

 

[10] In my judgment, these sterile, technical objections to orders in these terms must cease. They have caused needless delay and have no doubt increased costs and caused other inconvenience.

[11] That concludes this judgment, which the President has seen and which he approves.

 

Of the need to follow the provisions of MCA 1973 Mostyn J says:

 

[8] It is elementary that the court cannot make orders outside its powers: see Livesey v Jenkins [1985] AC 424 at 444G, where Lord Brandon stated that there was nothing in section 23 or 24 of the Matrimonial Causes Act 1973 which directly empowered the court to make the order requiring the wife, following the transfer of the matrimonial home to her by the husband, to be solely responsible for the mortgage and all other outgoings on it. Such a provision, he said, should have been incorporated in undertakings. It is certainly true that the literal words of section 23 and section 24 do not provide for the court to be able to make consequential or supplementary provisions of this nature, in contrast to the terms of section 24A(2), which explicitly grants such a power when making an order for the sale of property.

 

Inherent jurisdiction and the financial relief jurisdiction

 

What are the court’s inherent powers in financial relief cases? That is, what are the court’s powers outside the four corners of what is provided for under Matrimonial Causes Act 1973 (MCA 1973)? In Wicks v Wicks [1998] 1 FLR 470, [1998] 3 WLR 277 the Court of Appeal considered a judgement in which the first instance judge had awarded sale of matrimonial property and payment of a sum to the wife to enable her, pending a final ancillary relief hearing to buy property. This could not be done because of the variety of statutory provision already available to the courts under MCA 1973; nor could it be done under any inherent jurisdiction in the High Court.

 

Ward LJ (at 490) explained the inherent jurisdiction in words also referred to by Keehan J as:

 

In 1970 Sir Jack Jacob described the inherent jurisdiction of the court as ‘a virile and viable doctrine which in the very nature of things is bound to be claimed by the superior courts of law as an indispensable adjunct to all their powers’ ((1970) 23 Current Legal Problems 52). But in my judgment the inherent jurisdiction, valuable and beneficial though it is in its proper procedural sphere in relation to litigation, cannot be invoked by the court to arrogate to itself the power to give substantive relief, particularly so in an area so much controlled by statute.

 

In Wicks Ward LJ (with whom Peter Gibson LJ and Sir John Vinelott agreed) distinguished between procedural steps, where the court retained inherent jurisdiction, and ‘the power to give substantive relief’. In an area so set about by statutory powers – and with children and CA 1989 – creation of further substantive relief was not available to the courts:

 

The reality here is that the wife is seeking the enforcement of rights which MCA 1973 does not grant her. She wants an order for sale before s 24A allows the court to order it. She wants money to spend on a house before the financial and property adjustments can be made under ss 23 and 24. To submit… that she only seeks the ‘use of certain assets’ (the matrimonial home and the money) ‘pending trial’, and that this is not an interim lump sum order or an interim property adjustment order or an interim order for sale, because they confer ‘upon the recipient no absolute or exclusive ownership of the asset’ is disingenuous. She wants the money to buy a new home in her name, under her control, for her sole enjoyment to the exclusion of the husband. If the substantive law laid down by the MCA 1973 does not permit that to happen, then the court has no inherent jurisdiction to do that which Parliament has not granted it power to do….

 

In Birch Lord Wilson (with whom the majority agreed) said of an undertaking in an order:

 

[5] All three lower courts adopted without demur the wife’s description of her application as being to “vary” her undertaking. But her description betrays a conceptual confusion which it is as well to dispel as this early stage. An undertaking is a solemn promise which a litigant volunteers to the court. A court has no power to impose any variation of the terms of a voluntary promise. A litigant who wishes to cease to be bound by her (or his) undertaking should apply for “release” from it (or “discharge” of it); and often she will accompany her application for release with an offer of a further undertaking in different terms. The court may decide to accept the further undertaking and, in the light of it, to grant the application for release….

[6] In my opinion these proceedings have been bedevilled by a failure to distinguish between the existence of the court’s jurisdiction to release the wife from her undertaking (conditionally, on any view, upon her offering a further one in different terms) and the exercise of its jurisdiction….

 

The Supreme Court held that the wife in Birch could apply to the court to seek release from her undertaking. Whether she should be permitted to do so was a matter with which the lower court must deal. Her application was to be dealt with as equivalent to a MCA 1973 s 24A(1) variation of sale order within the terms of MCA 1973 s 31(7). Undertakings can be dealt with in this way. Different statutory provisions apply for orders; and these do not include release of parties from their undertakings under an order (as approved by Mostyn J in CH v WH).

 

Indemnity from payment of the mortgage in the Family Court

 

Mostyn J refers to his own ‘view’ (most judges would have warned themselves against making any decision in a context such as this, where their mind was already made up on a point, without argument against them). This was set out in the first report of the FRWG which justified including mortgage repayments as part of the order not as an undertaking (he quotes this in full in the case at [5] of CH v WH):

 

Under the new Matrimonial and Family Proceedings Act 1984 s 31E(1)(a) in any proceedings in the family court, the court may make any order which could be made by the High Court if the proceedings were in the High Court. The High Court has power to order or decree an indemnity. This is an equitable remedy originally vested in the Court of Chancery which was subsumed into the High Court by the Supreme Court of Judicature Act 1873. It was the very relief initially ordered in Salomon v A Salomon and Co Ltd [1897] AC 22 (but which was later set aside by the House of Lords as offending the rule about the separate legal personality of companies)….

 

Some might say that this explanation was ‘sterile, technical’ and obscure, with all respect to Mostyn J and despite the approval – he says – of the President.

 

It has also been suggested by other lawyers that Mostyn J’s treatment of equitable principle is wrong – again it must be recalled that the matter case was not argued before him – is wrong. Because the High Court has jurisdiction to grant a remedy, does not mean it can do so where the cause of action is, for example, ancillary to a cause under MCA 1973. In Salomon an indemnity was available because it was an implied term of the relationship of agency between company and company director. Similarly, the High Court has the power to award damages. It does not follow that it can do so in a case brought under MCA 1973.

 

Indemnity as part of an order: wrong in law?

 

Certainly equitable principle in ancillary relief proceedings was the sort of extra-statutory remedy attempted by Waite J in Barry v Barry [1992] Fam 140, [1992] 2 FLR 233 and disapproved of, and expressly overruled, by Court of Appeal in Wicks v Wicks (where, in this case, the simple remedy of incorporating the indemnity as part of a pre-curial part of the order could have been done). Agreeing with Ward LJ in over-ruling Barry, Sir John Vinelott summarised the inherent jurisdiction position in Wicks v Wicks at [1992] 1 FLR at 489:

 

What is clear is that, for the reasons set out in the judgment of Ward LJ, the claim that the court has an inherent jurisdiction to make an interim lump sum order or to direct the application of assets the subject of a claim for ancillary relief in the way suggested cannot be supported. Part II of the MCA 1973 contains an elaborate code governing financial provision and property adjustment orders which includes, in s 22, provision for maintenance pending suit; it would be remarkable to find that the court has a much wider inherent jurisdiction to make interim orders for lump sum payments or for the application of matrimonial assets for the benefit of one of the parties pending suit….

 

Birch dealt with undertakings and a parties’ release from them; and with how such undertakings might later be varied (a point not considered by Mostyn J). It is not known to what extent the standard orders have been redrafted since Birch or whether Mostyn J drew to the President’s attention that the order he had approved appears to breach Wicks and is probably contrary to the decision in Birch. He cited neither case to himself in CH v WH.

 

Oh and there is an old rule in English common law: that you cannot pick your judge. If Mostyn J was acting as a civil servant – in this case as civil servant in ‘forensic ferret mode’ (per Ward LJ in Harris v Manahan [1997] 1 FLR 205, CA) – so be it; but his decision has no precedent value. It is no more than persuasive, alongside the comments of Sir James Munby P in the introduction to the orders set out above; and to the extent that it has been made without regard to Birch and Wicks it is probably of very little value indeed.

 

If I were asked I would say that, as we have always done, practitioners put into undertakings in the pre-curial part of the order what cannot be done by order under Matrimonial Causes Act 1973. And, unlike Mostyn J, there is no need to go truffling around amongst obscure equitable remedies for recondite orders the court may or may not be able to make.

Special measures in family proceedings: Part 2

Children and vulnerable witnesses: YJCEA 1999 Pt and ABE guidance

 

The first article in this series of two dealt with where special provision might be appropriate for children and vulnerable witnesses in family proceedings and how, procedurally, that might be dealt with. This article looks at the type of measure which the court might provide for such witnesses in family proceedings, and these are dealt with in common law and under statutory provision. As mentioned at the end of this article, the funding of assessment for, and operation of, such measures is not something the Lord Chancellor and his Ministry of Justice seems yet to have put its mind to.

 

As Lady Hale explained in R (D (a minor)) v Camberwell Green Youth Court [2005] UKHL 4, [2005] 1 WLR 393 the existing common law remedies are, for the most part, summarised and authoritatively set out in Youth Justice and Criminal Evidence Act 1999 (YJCEA 1999) Pt 2. The 1999 Act and its supporting ABE guidance set out the respective definitions of vulnerable and intimidated witnesses (ss 16 and 17, and including children under 18). They explain the ‘special measures’ available under the Act and at common law to help witnesses give their best evidence set out in YJCEA 1999 ss 23-30 (as explained below). An abbreviated version of ‘measures’ for vulnerable adults (only) in family proceedings appears in FPR 2010 r 3A.8(1).

 

Divergence from the general rule for giving evidence in family proceedings and the call for ‘control’ (or where Pt 3A applies, a participation direction) arises from the extent to which the court directs measures (as summarised in the table below) to help vulnerable witness to maximise the quality of their evidence.

 

‘Control’, measures and divergence from a general rule

 

The criterion for the court in diverging from the general rule and in directing any special measure relates to maximising quality of a vulnerable witness’s evidence. The common law has long had a variety of measures available to it (see Lady Hale in R (D (a minor)) v Camberwell Green Youth Court [2005] UKHL 4, [2005] 1 WLR at [19]). To avoid the ‘normal… of court-room confrontation’ and to maximise the quality of a witness’s evidence Lady Hale described common law measures in family proceedings (‘long more flexible than other proceedings in this respect’ (sic)) in Re A (Sexual Abuse: Disclosure) [2012] UKSC 60, [2013] 1 FLR 948 (Lady Hale at [36]):

 

  • Hearsay evidence (and see Civil Evidence Act 1995; FPR 2010 Pt 23)
  • ‘accounts in videotaped conversations with specially trained police officers or social workers’ which can be ‘extended to other vulnerable witnesses’; and ‘could include the facility to have specific questions put to the witness at the request of the parties’.
  • ‘oral questioning… which did not involve face to face confrontation’.

 

Terminology in relation to children and vulnerable witnesses is derived from YJCEA 1999 (mostly in ss 16 and 17): children and adults defined as eligible for assistance. A case management direction for a ‘special measure’ (and much the same can apply for family proceedings for vulnerable witnesses outside Part 3A) and a participation direction (FPR 2010 r 3A.8(1)). The terminology in YJCEA 1999 Pt 2 is explained in Achieving Best Evidence in Criminal Proceedings Guidance on interviewing victims and witnesses, and guidance on using special measures, March 2011, Ministry of Justice (‘ABE guidance’); and procedurally, for criminal proceedings, ‘special measures’ is dealt with in Criminal Procedure Rules 2015 Pt 18 and its practice directions.

 

‘Control’ under r 22.1(1)(c) (set out in first article) depends on which of the measures available to the courts judges and magistrates allow. Screens have long been permitted in court proceedings.

 

‘Special measures’ and ABE guidance

 

The ABE guidance sets out and discusses use of the various ‘special measures’ available under YJCEA 1999 ss 23 to 30 (at paras 5.2 to 5.8); and application for witness anonymity at para 5.12. The ‘special measures’ available for direction under YJCEA 1999 s 18(1)(a) are:

 

(1) preventing a witness from seeing a party, by ‘screen or other arrangement’ (YJCEA 1999 s 23);

(2) 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));

(3) hearing a witness’s evidence to the exclusion of others (ie in private, which is normally the case in children proceedings) (s 25);

(4) video recorded evidence (s 27);

(5) questioning a witness through an intermediary (s 29);

(6) using a device to help a witness (eg because deaf or mute) to communicate (s 30).

 

Table: measures for evidence of vulnerable witnesses and children

Measure Rule 3.8A Other source
Screen to prevent witness seeing, or being seen, a party (1)(a) YJCEA 1999 s 23; ABE guidance para B.9.1
Live-link (video-link or conferencing) for evidence and cross-examination (1)(b) FPR 2010 r 22.3 and PD22A; YJCEA 1999 s 24; ABE B.9.4
Hearing a witness in private YJCEA 1999 s 25; ABE B.9.12
Video-recorded evidence YJCEA 1999 s 27; ABE B.9.17
Assistance of an intermediary (1)(e) YJCEA 1999 s 29; ABE B.9.29; Criminal Procedure Rules 2015 Pt 18 and PD I F
Aids to communication (1)(c) YJCEA 1999 s 30; ABE B.9.38
Cross-examination by pre-written questions MFPA 1984 s 38G(6); H v D [2017] (below)
Hearsay evidence FPR 2010 r 23.2
Judge/court assistance with examination of witness MFPA 1984 s 38G(6)

 

Measures for assistance of vulnerable or intimidated witnesses

 

Notes on these measures for children and vulnerable witnesses follow:

 

  • Evidence by live-link (‘video link’ or ‘video conferencing’) is provided for in family proceedings (r 22.3; and see Annex 3 to PD22A). This is explained more fully in the Police Guidance at para 5.7.2 and in ABE Guidance at para B.9.4. The witness’s evidence is relayed live into the court-room while he or she is in another room or out of the court altogether. They are away from the presence of the party whose presence may be thought to intimidate them. Directions could be made for this evidence to be heard at a different location (from the court) and on a different occasion from any final hearing (FPR 2010 r 4.1(3)(f); for special arrangements for a child to be asked questions on behalf of a defendant see R v Lubemba & Ors [2014] EWCA (Crim) 2064, [2015] 1 WLR 157).

 

  • Video-recorded interviews are to be distinguished from ‘live-link’ evidence. Subject to court direction they can be used to provide evidence in chief, if the interview has been properly conducted; or sufficiently properly conducted (Wolverhampton City Council v JA & Ors [2017] EWFC 62, Keehan J). Their use in children proceedings is already well-known and frequently used in children proceedings. If the video interview is the evidence in chief, permission from the court will be required to dispense with a statement from the witness/party (r 22.6(1)).

 

  • Cross-examination by pre-written questions – Questions in place of cross-examination may be by list submitted to the judge in advance; and may be directed as part of case management (H v D (Appeal – Failure of Case Management) [2017] EWHC 1907 (Fam), Peter Jackson J; and see MFPA 1984 s 31G(6)).

 

  • Hearing a witness in private – That some family hearings are in open court (eg divorce and some FLA 1996 Pt 4 (domestic abuse) and FGM proceedings) recalls that the hearing of a vulnerable witness in such cases may be called for.

 

  • Assistance with communication – eg for deaf or mute witnesses.

 

  • Intermediaries – Assistance from an intermediary is considered by ABE Guidance B.9.29-37; but is dealt with relatively fully in the practice direction to Criminal Procedure Rules 2015 at CPD I which includes (at paras 3F.1 and 3F.2) the following on the ‘Role and functions of intermediaries’:
  • Intermediaries are independent of parties and owe their duty to the court. The court and parties should be vigilant to ensure they act impartially and their assistance to witnesses and defendants is transparent.
  • Intermediaries facilitate communication with witnesses and defendants who have communication needs.
  • Their primary function is to improve the quality of evidence and aid understanding between the court, the advocates and the witness or party to proceedings (eg they often advise on the formulation of questions so as to avoid misunderstanding)
  • They may actively assist and intervene during questioning. The extent to which they do so (if at all) depends on factors such as the communication needs of the witness and skills of the advocates in adapting meet a witness’s needs.

 

Making the measures effective: witness assessment and funding

 

The court has power to order these measures, whether at common law or under Part 3A. There are two fundamental conditions precedent to any special measures (or ‘participation’) direction: (1) assessment and (2) funding. Neither of these has been thought through by HM Courts and Tribunal Service and the rule-makers. The latter have no power over to deal with funds, but before setting out the rules they might have given funding some thought. All the litigant gets on the subject is the redundant and thoroughly charmless (no-one who understands the law would imagine a family proceedings rule could provide funding for litigation) r 3A.8(4):

 

(4) Nothing in these rules gives the court power to direct that public funding must be available to provide a measure.

 

Cost to HM Courts and Tribunal Service remains an issue while conferencing facilities and other necessary IT equipment are elusive. Whether HMCTS are amenable to judicial review for failing to fund special measures in individual cases remains a subject for further research.

 

Assessment of a witness must precede any direction for special measures. This may be by the court doing the best it can, which is hardly good enough; or, subject to any funding (again…; and for assessment questions, see eg Re S (Child as Parent: Adoption: Consent) [2017] EWHC 2729 (Fam) Cobb J (assessment of understanding to consent to adoption of a child mother with learning difficulties); and see Family law: capacity to consent, this may be – must be? – done professionally.

 

Whatever may be the course available to the party who wishes to call the witness – for unlike in criminal proceedings where CPS can fund assessments and certain special measures – the assessment must be done with care, as explained by Sir Ernest Ryder, Senior President of Appeals, in the Court of Appeal in AM (Afghanistan) v Secretary of State for the Home Department [2017] EWCA Civ 1123. For example the court must be aware of:

  • The way in which the credibility of a child or other vulnerable witness should be assessed against other objective evidence in the particular case; and
  • The importance of flexibility of procedure for the hearing of vulnerable and child witnesses (including taking account of recommendations of expert witnesses as to how this could be done).

 

Professional assistance must be required; but in private law proceedings who is going to pay; and that is before the question of the cost of IT, equipment for recording evidence (eg of children or victims of domestic abuse), court video equipment (surely cannot be very expensive?), fees for an intermediary and so on is even touched upon. At least one YJCEA 1999 ‘special measure’ available in open court proceedings – namely, getting judges and advocates to take off their gowns and wigs (for advocates who wear wigs) while children or vulnerable witnesses give evidence (YJCEA 1999 s 26) – is free….

Best evidence of vulnerable witnesses: Part 1

Intimidated witnesses in family proceedings

 

This first article (in a series of two) considers the evidence of any witness in family proceedings who diverges from the general procedural rules (as explained below) for evidence in family proceedings. It concerns evidence from:

 

  • witnesses and parties who are adult and of full capacity, but whose evidence may be in some way be ‘diminished by [their] vulnerability’ (Family Procedure Rules 2010 (FPR 2010) rr 3A.4(1) and 3A.5(1));
  • children who give evidence in their own or others’ cases (and see Children’s views and evidence , David Burrows (Bloomsbury Professional, 2017);
  • witnesses who are protected parties or otherwise lack mental capacity; and
  • witnesses with learning difficulties.

 

Each of these categories of witness may be entitled to special measures directed by the court. Such measures may also, in some cases, be one of  the ‘measures’ available after the court has made a participation direction under FPR 2010 r 3A.8 and in accordance with the recently introduced FPR 2010 Pt 3.

 

The evidence of vulnerable witnesses – as the above witnesses tend to be categorised by legislators and rule-makers – will be dealt with in two articles. The first will set the scene for circumstances in which the court may order assistance for children and vulnerable witnesses by ‘control’ of the way the evidence is put before the court. The second will look at the measures available to the courts at common law and within the rules to provide this assistance (‘special measures’ or ‘measures’).

 

It is worth recording here of court rules: that creation of law (such as the power of any court to direct a special measure) can only be done by common law or statute. That is to say a rule (such as FPR 2010 Pt 3A) cannot create law (unless permitted by statute to do so: see eg Senior Courts Act 1981 s 51(1) on civil proceedings costs rules). It can only regulate its procedure (Jaffray v The Society of Lloyds [2007] EWCA Civ 586, [2008] 1 WLR 75). This was asserted crisply – in this case in relation CPR 1998 – by Lady Hale in Dunhill v Burgin (Nos 1 and 2) [2014] UKSC 18, [2014] 1 WLR 933:

 

27 Neither the Rules of the Supreme Court nor the Civil Procedure Rules can change the substantive law unless expressly permitted so to do by statute: Re Grosvenor Hotel Ltd (No 2) [1965] Ch 1210.

 

This article will therefore stress the extent to which practitioners and parties must rely on common law and statute (ie primary law), not on any rule alone, save where that rule represents – as does FPR 2010 Part 3A.8(1) – existing primary law.

 

New rules; but no funding…

 

However, as the second article in this series concludes, little headway will be made with any of this in family proceedings till its funding is resolved. This is needed, plainly, for all but the richest of parties: first to provide special measures with cost implications (intermediaries, video-link etc); and, second, for expenses of the parties for assessment of vulnerability and of the cost of any special measure. There is no offer from Ministry of Justice (which also funds Legal Aid Agency) that the extra expense inevitable in a court assessment of vulnerability and order that a special measure be directed will be met – as needed: ie in most cases – by the tax payer.

 

FPR 2010 Pt 3A (entitled ‘Vulnerable persons: participation in proceedings and giving evidence’ supported by a practice direction PD3AA) came into operation on 27 November 2017. It is limited to adult witness the quality of whose evidence may be ‘diminished’ by their vulnerability; by their lacking mental capacity or being a ‘protected party’ (per FPR 2010 Pt 15); or their suffering learning difficulties. This article casts the vulnerable witnesses net much wider than is provided for by Part 3A.

 

Measures: ‘control’ of evidence in family proceedings

 

Evidence in family proceedings is controlled by FPR 2010 r 22.1 (which is derived directly from Civil Procedure Rules 1998 r 32.1) and by certain provisions in the case management rules (FPR 2010 rr 1.4 and 4.1). These together give family courts the power to ‘control evidence’ and in particularly to give directions as to how evidence to be adduced before a family court, considerably beyond what is available in FPR 2010 Pt 3A, which, anyway, applies only to adults and suggests that only a limited pallet of measures is available to judges and magistrates. Part 3A, for example, makes no provision for the common law remedies referred to by Lady Hale in Re A (at [36] below).

 

Specifically, in terms of control of evidence, FPR 2010 r 22.1 is as follows:

 

22.1 Power of court to control evidence

(1) The court may control the evidence by giving directions as to –…

(c) the way in which the evidence is to be placed before the court.

 

If a witness is found to be vulnerable – a child or one of the classes of witness referred to at the beginning of this article, they may be eligible for assistance by direction from the court, known as ‘measures’ or, in the language of Youth Justice and Criminal Evidence Act 1999 (YJCEA 1999) Pt 2 and earlier common law, from which many of the assistance ideas derive, ‘special measures’ (YJCEA 1999 ss 23-30). Such special measures are widely used in criminal proceedings. Though available in family proceedings (see comments of Lady Hale in Re A (below)) they are rarely used. To an extent (see Table in Part 2 (below)) they have now been proposed for vulnerable adults; whilst evidence from children still depends on common law as represented by YJCEA 1999 Pt 2.

 

Achieving Best Evidence

 

One of the principal sources for operation of the common law in family proceedings is replication of the measures available under Youth Justice and Criminal Evidence Act 1999 (YJCEA 1999) Part 2; though already Family Procedure Rules 2010 (FPR 2010) r 22.3 provides, as does YJCEA 1999 ss 24 and 27. Evidence under YJCEA 1999 for children and vulnerable and intimidated witnesses is explained by Achieving Best Evidence in Criminal Proceedings Guidance on interviewing victims and witnesses, and guidance on using special measures, March 2011, Ministry of Justice (‘ABE guidance’); and a guide for those collecting evidence from children and vulnerable witnesses is provided by Vulnerable and Intimidated Witnesses A Police Service Guide, March 2011, Ministry of Justice.

 

The procedures set out in Achieving Best Evidence have been commended by Supreme Court and again by Court of Appeal and Family Division judges. For example, in a passage quoted by McFarlane LJ in Re E (Evidence) [2016] EWCA Civ 473, [2017] 1 FLR 1675, [2016] 4 WLR 105 at [47] and [48], Lady Hale said of children’s evidence:

 

[27] But on both sides of the equation, the court must factor in what steps can be taken to improve the quality of the child’s evidence and at the same time to decrease the risk of harm to the child. These two aims are not in opposition to one another. The whole premise of Achieving Best Evidence and the special measures in criminal cases is that this will improve rather than diminish the quality of the evidence to the court. It does not assume that the most reliable account of any incident is one made from recollection months or years later in the stressful conditions of a courtroom…. A family court would have to be astute both to protect the child from the harmful and destructive effects of questioning and also to evaluate the answers in the light of the child’s stage of development.

[28] 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.

 

Direct cross-examination (and see R v Lubemba & Ors [2014] EWCA (Crim) 2064, [2015] 1 WLR 157) is not essential, so long as questions are fairly put to a child witness (this requirement is available now, regardless of Part 3A; and could be copied in adult proceedings: see eg H v D (Appeal – Failure of Case Management) [2017] EWHC 1907 (Fam), Peter Jackson J). Lady Hale continued:

 

[28] … 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. 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.’

 

Vulnerable witness and the common law

 

Re W and Re E dealt with a child’s evidence. Achieving Best Evidence applies equally to all ‘victims and witnesses’ – child and adult alike – who may be entitled to help to achieve their best evidence by measures available to the common law and FPR 2010. Of a vulnerable adult witness (‘X’) in Re A (Sexual Abuse: Disclosure) [2012] UKSC 60, [2013] 1 FLR 948 Lady Hale said:

 

[36] It does not follow [from her directing that X should give evidence], 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. Lady Hale continued:

 

[36] … 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.

 

Court’s power to ‘control the evidence’: the general rule

 

The objects of FPR 2010 r 22.1(1)(c) and Part 3A together are, in relation to evidence generically, to control – or alter from the general rules for adducing of evidence – how the evidence (‘participation’ per r 3A.4 is not in question here) of a particular witness is put before the court. The general rule (which can be diverged from by order of the court: r 22.1(3)) is as follows:

 

  • Evidence is oral at a final hearing before the judge or magistrates (r 22.2(1)(a)), subject to the witness’s statement having been served by the party calling him or her (r 22.4(1)). The statement is treated as the witness’s evidence in chief (r 22.6(2)).
  • The witness must be available in court in person for cross-examination.
  • Other than at a final hearing, evidence is in writing only (r 22.2(1)(b), 22.7(1)) but application can be made for cross-examination of a witness (r 22.8(1)).

 

Anything which diverges from this for a witness or party who is to give evidence and who is vulnerable, can only be by direction of the court under FPR 2010 rr 22.1(1)(c) or as a ‘measure’ under r 3A.8. This is dealt with under common law as set down and summarised, to a degree, in YJCEA 1999 Pt and FPR 2010 Pt 3. That direction is likely to be for a special measure to assist the witness (subject to funding any expense of assessment for, and provision of, the measure); and will be dealt with in the next part of this article.