Best evidence of complainants and children

20160418_164836ABE evidence in family proceedings


In Y and E (Children) (Sexual Abuse Allegations) [2019] EWCA Civ 206 (21 February 2019) Baker LJ drew attention to the importance of ABE evidence gathering (per Achieving Best Evidence in Criminal Proceedings Guidance on interviewing victims and witnesses, and guidance on using special measures, March 2011, Ministry of Justice ). He confirmed that it applied to ‘civil’ (ie including family) as well as to criminal proceedings.


The important principles on which ABE evidence gathering are based and its importance in making available evidence from children and some vulnerable witnesses is discussed fully in my Children’s Views and Evidence by David Burrows, Bloomsbury Professional, 2017.


This morning the following brief exchange occurred on twitter between myself and a family law specialist barrister, Lucy Reed. There had been irritation expressed already on Twitter that judges state that they ‘prefer’ the evidence of one witness to another (that is their job, surely: to evaluate evidence, and evaluation inevitable involves comparison?). Lucy Reed joined in: ‘…Impression of a witness is a legitimate consideration, but always better to rely on contemporaneous documents / independent evidence than witness recall / impression where possible. In e.g. domestic abuse cases such material often scarce so impression may be more important…’


Solicitor’s recording ABE evidence


I raised the question – appropriate, as I thought: ‘Why aren’t solicitors who often are the first to see domestic abuse complainants trained to use ABE techniques to record early evidence?’ Came the prompt reply:


Lucy Reed‏ @Familoo

FollowingFollowing @Familoo


Replying to @dbfamilylaw @PenelopeGibbs2 and 2 others

Because such conversations are privileged? Because they would be conflicted out?

12:33 AM – 4 Mar 2019


To which I replied (and this is the reason for this post):

  1. David Burrows‏ @dbfamilylaw3m3 minutes ago

Replying to @Familoo @PenelopeGibbs2 and 2 others

Oh come on Lucy: we’re talking ‘evidence’ (the client’s story); the person taking the ABE statement shld be asking only questions. Only advice is privileged; and any confidentiality (lncl LPP) there may be, can be waived if it saves a client giving live evidence months later


‘Such conversations are privileged?’


Lucy’s short tweet was a question, but it implied an assumption as to the confidentiality (possibility even legal professional privilege ie legal advice privilege?) of such evidence. And ‘conflicted’ out? I am not quite sure what that can mean in context. I shall concentrate on the confidentiality (‘privilege’) point.


First, the confidentiality (if there is any) is that of the client (‘Charlie’): complainant or child. It can be waived by Charlie. And if Charlie knows that, from the start, she is being recorded for possible use in court proceedings any confidentiality is as near impliedly waived as can be imagined. That is to say, she has made it clear that she does not expect privacy in relation to court proceedings, for her statement.


Next, in this context privilege attaches to advice given by lawyers (fully explained in Privilege Privacy and Confidentiality in Family Proceedings by David Burrows, January 2019, Bloomsbury Professional). It does not attach to evidence given by a witness; though it will attach to what is said to obtain advice (R v Derby Magistrates’ Court exp B [1995] UKHL 18, [1996] 1 AC 487, [1996] 1 FLR 513).


If from the outset Charlie knows that what is said to her solicitor or the solicitor’s interviewer is evidence – and the solicitor does not chip in with advice, till after the recording – it is difficult to see how privilege (privacy for legal advice) could apply. Anyway, the question would only arise if later the client/witness decides not to waive any privilege there may have been.


ABE interviewing in civil proceedings: by solicitors and their staff


This is an important field for family lawyers in the case of complaints which do not justify criminal investigation by the police. If it is not properly understood or questioned – dismissed, at the threshold, even? – by family law barristers, it will have difficulty in ever developing.


I accept, there is the prior question of whether anything like this should develop.  I believe it should be looked at as a valuable project for development in this area of family law (for complainants and mature children, with appropriate intermediaries). Funds for training lawyers should be committed for it.

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.