Help for vulnerable witnesses and children in court proceedings

The BBC reported on Wednesday  that there is a shortage of intermediaries for help of vulnerable witnesses ‘to give evidence to police and court’; and that some intermediaries are refusing to help because of late payment by the police.

 

In criminal proceedings – not yet in family or other civil proceedings – the court can order ‘special measures’ for a child or vulnerable witness (eg someone suffering from mental incapacity, or scared of facing their alleged abuser). This can include having their evidence pre-recorded or having someone with them in court to help with deafness or other communication difficulties (‘an intermediary’). These have been in place – or intended to be in place – for criminal proceedings since 1999.

 

Even this assistance for children, parties and witnesses has not been available in family proceedings – domestic violence, child abuse, or communication difficulties (eg deafness), unless a witness brings their own help. Any payment for help will come from the child or vulnerable person (unless they have legal aid).

 

Since November 2017, a scheme for ‘intermediaries’ has been introduced by court rule. It applies to adults only. The new rule says in terms it will not be paid for by Ministry of Justice; though help is paid for in criminal proceedings. That is the case even if they are suffering from incapacity or have been abused by a former partner.

 

And what about children in family proceedings? Nobody knows (though ‘children’s views’ are part of the EU Charter proposed to be scrapped under Brexit). Recommendations were made in early 2015 by a committee chaired by two judges. This was for a scheme similar to criminal proceedings. Three years later and the Ministry of Justice is still silent on reforms for children…

 

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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

 

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.

Evidence of vulnerable witnesses

(1)        AM (Afghanistan) v Secretary of State for the Home Department

 

Fair assessment of vulnerability

 

As the report (with draft regulations attached) of Vulnerable Witnesses and Children Working Group (‘VWCWG’) continues to rot in the Lord Chancellor’s in-tray – or its resources implications to be embroiled with some Treasury austerity sub-committee – three cases concerning vulnerable witnesses and child law have been reported recently.

 

The first is an immigration case, but one which concerns a 15 year old Afghan asylum seeker and the assessment of his credibility in the administrative appeals tribunals. The Court of Appeal was unimpressed as to how he had been dealt with.  In AM (Afghanistan) v Secretary of State for the Home Department [2017] EWCA Civ 1123 (27 July 2017) the court commented on the treatment of evidence of child and vulnerable witnesses and held that a First-tier Tribunal (‘FtT’) ‘did not properly consider the impact of the appellant’s age, vulnerability and the evidence of [his] significant learning disability’ ([18]). They sent the case back for reconsideration. The Lord Chancellor was given permission to intervene. The main judgment (with which Gross and Underhill LJJ agreed) was given by President of the Tribunals (‘Ryder LJ’). All parties and the court agreed that the appeal should be allowed.

 

Asylum application by 15 year old Afghan

 

AM’s father was a member of the Taliban. After the father’s death AM travelled across Europe to UK and had claimed asylum. He was beaten up by Afghan police before leaving, and was threatened by them and by the Taliban in Afghanistan. He had a real fear of persecution.  It was said that he has mental health and psychological difficulties. The Secretary of State refused him asylum but granted leave to remain till 17½. Reasons for this included that his evidence was not credible.

 

The tribunal paper included a psychologist’s report which the FtT judge said had only been ‘drawn to his attention’ after the hearing. That said Ryder LJ was not true and was, in any event, ‘a wholly inadequate response to the content of the report’ which included ‘opinions about the appellant that were relevant to procedural fairness’ ([12]). AM’s appeal was rejected as was his appeal to the Upper Tribunal (‘UT’).

 

Ryder LJ considered that the psychologist’s opinion for the FtT was ‘appropriate’; and the FtT judge was not entitled, ‘effectively’, to ignore ([13]) them. He therefore concluded:

 

[16] In like manner to my conclusion at [13] I have come to the firm view that the UT judge took no sufficient steps to ensure that the appellant had obtained effective access to justice and in particular that his voice could be heard in proceedings that concerned him.  Procedurally, the proceedings were neither fair nor just.  That was a material error of law. The appellant was a vulnerable party with needs that were not addressed….  The parties agree.

 

Credibility and objective evidence

 

Central to the court’s view of the tribunal’s assessment of evidence was that the FtT judge looked at what he regarded as the ‘credibility’ of AM, rather than considering his vulnerability and looking at to other available ‘objective evidence’ first. He had an ‘obligation’ to ‘give precedence and greater weight to objective evidence and indicators of risk’ to AM, rather than to his personal credibility. These evidential factors must be reviewed ‘in light of [AM]’s age, vulnerability and learning disability’ ([19]). Had the tribunal properly considered its own practice direction and rules this error and the importance of AM’s age would have been clear to it.

 

The FtT and the parties are required to ensure that an appellant is able to participate fully in the proceedings. There is a flexibility and a wide range of specialist expertise which the tribunal can use to deal with a case fairly and justly.  Within the Rules themselves this flexibility and ability to override formality is made clear, said Ryder LJ. If this is not done there is a risk that any decision made by a tribunal will be ‘unlawful’; and this is especially so where – as here – the welfare of a child is in issue.

 

Ryder LJ reviewed the available tribunal practice directions on dealing with ‘vulnerable adults and sensitive witnesses’ ([31] and [32]): ‘failure to follow them will most likely be a material error of law’ ([30]).

 

 

(2)        Carmarthen County Council v Y

 

Evidence of an incapacitated witness

 

Carmarthen County Council v Y and others [2017] EWFC 36 (30 June 2017) relates to a preliminary fact-finding issue in children proceedings (the heading to the case hints that it is care proceedings). Two immediate problems arise. It is not clear till late in Mostyn J’s judgment what the primary application before the court is; though the preliminary facts issue is summarised as:

 

[1] … The facts in dispute are whether, or not, A repeatedly raped his daughter, Y, more than 20 years ago when she was under 16. It is said that the abuse continued after she turned 16.  A strongly denies the accusation. His wife B says that the allegation is impossible to believe, as does Y’s sister C. Y herself suffers from mental illness and has not participated in the trial. Her counsel take a neutral stance in relation to the allegations, as does the [children’s guardian].  The local authority submits that the accusation is true.

 

But to what application do these facts relate (the heading of the case refers to a child Z)? Z is introduced half way through the judgement at [24]. It becomes clear at [36] and [37] that she was born on 25 October 2011 and that she is the daughter of Y and therefore the grand-daughter of A. By the end of the judgement the implication that there are care issues in relation to Z becomes clear.

 

This might have been resolved by the second problem. Mostyn J tells the reader:

 

[4] For an exhaustively full account of the background reference should be made to the chronology prepared by junior counsel for the local authority, which has left no stone unturned. I am grateful for the preparation of that very useful document.

 

But this judge has already made clear that he does not consider that documents in family proceedings should be released (DL v SL [2015] EWHC 2621 (Fam) sub nom L v L (Ancillary Relief Proceedings: Anonymity) [2016] WLR 1259, Mostyn J at [16]). In law, there are real question on this (see eg ‘Release of court hearing documents’: ). As matters now stand ‘reference’ cannot now be made to the ‘useful document’. Both problems remain.

 

Issue of law: ‘a probability of 51%’

 

The issue of law relates to Y’s evidence. Such was her mental state that she could not be called at court; not be cross-examined on what she said on behalf of her father A (who was joined s a party in the proceedings). Such was the unreliability of what Mostyn J saw, he held that A could not be required to answer Y’s allegations, and that what she said should be treated as having not happened:

 

[44] The decision of the House of Lords in Re B (Children) [2008] UKHL 35 confirms what we all already knew, namely that if an allegation in relation to a past (as opposed to future) fact or event is not proved to a probability of 51% then it is treated as not having happened: see Lord Hoffmann at paragraph 2. The court may feel that there is a not fanciful (im)probability, say 25%, of the event having happened, but that mere suspicion, for that is all it is, entirely falls by the wayside….

 

That this evidence was from a vulnerable witness (though she was no longer a child) and that therefore whether it should have been seen in the light of other objective evidence of her credibility (if there was any: her mental state might be part of such a question), in accordance with AM (above) was not considered by Mostyn J. In fairness that decision was only handed down a couple of days before Mostyn J’s judgment. However, in AM at [19] Ryder LJ referred to older Court of Appeal authority (which would have been available to Mostyn J) namely Mibanga v Secretary of State for the Home Department [2005] EWCA Civ 367.

 

In Mibanga the Court of Appeal stressed the importance of reference to expert evidence to assist with an objective view of credibility. In that case Wilson J (sitting in the Court of Appeal and with whom Ward and Buxton LJJ agreed) said:

 

[24] It seems to me to be axiomatic that a fact-finder must not reach his or her conclusion before surveying all the evidence relevant thereto. Just as, if I may take a banal if alliterative example, one cannot make a cake with only one ingredient, so also frequently one cannot make a case, in the sense of establishing its truth, otherwise than by combination of a number of pieces of evidence. Mr Tam, on behalf of the Secretary of State, argues that decisions as to the credibility of an account are to be taken by the judicial fact-finder and that, in their reports, experts, whether in relation to medical matters or in relation to in-country circumstances, cannot usurp the fact-finder’s function in assessing credibility. I agree. What, however, they can offer, is a factual context in which it may be necessary for the fact-finder to survey the allegations placed before him; and such context may prove a crucial aid to the decision whether or not to accept the truth of them. What the fact-finder does at his peril is to reach a conclusion by reference only to the appellant’s evidence and then, if it be negative, to ask whether the conclusion should be shifted by the expert evidence….

 

Mostyn J says he read a massive amount of evidence. On the information of his judgment it is not possible to say what specific medical evidence in relation to Y that included; and therefore it is not possible to assess to what extent – in Mibanga and AM terms – he assessed Y’s credibility. He says first:

 

[6] As stated, Y has not given oral evidence. She is presently detained in a psychiatric hospital under the Mental Health Act. There is compelling, unchallenged, medical evidence that it would be very harmful for her to give oral evidence in court. A therefore has not had the opportunity of confronting his principal accuser, nor has the court had the opportunity of assessing under cross-examination the reliability of the evidence deriving from her.

 

Later in his Judgment Mostyn J says:

 

[40] In February 2016 Y was sectioned. She has been in a psychiatric unit ever since and is under close supervision. Her condition is truly pitiful in that she seems to wish to engage in self-harm at almost every opportunity. As I have stated above, the medical evidence is very clear – for her to give evidence or to participate in the proceedings could aggravate her condition considerably.

 

No more detail of the evidence or its assessment of Y’s credibility is attempted by the judge; nor, for example, does he ask why her mental capacity may be affected as it now is. He did not review how a witness in Y’s position might have been dealt with in the analogous position dictated for criminal trials under Youth Justice and Criminal Evidence Act 1999 Pt 2 (though it is likely he was not referred to that Act).

 

 

(3)        H v D (Appeal – Failure of Case Management)

 

A right to cross-examine?

 

The title of H v D (Appeal – Failure of Case Management) [2017] EWHC 1907 (Fam), Peter Jackson J gives a clue as to what is coming. In a convoluted series of hearings concerning a contact dispute, the first instance judge had attempted to protect the mother from direct cross-examination by the father of their child.

 

Peter Jackson J referred early in his judgment to the following:

 

[6] Where questioning by the court is for some reason not possible, the situation of the alleged victim may be entirely unsatisfactory: see for example the recent observations of Hayden J in Re A (a minor) (fact finding; unrepresented party) [2017] EWHC 1195 (Fam) at 57-63.

 

Neither he nor Hayden J (in Re A) seems to have been referred to the Court of Appeal case of Re K & H (Children) [2015] EWCA Civ 543 sub nom K and H (Private Law: Public Funding) [2016] 1 FLR 754, where Lord Dyson MR said in terms that if a judge considers that parent B should not cross-examine the other (A),  then the judge must make do and conduct the questioning of A for B (Matrimonial and Family Proceedings Act 1984 s 31G(6)) (and see per Lord Bingham CJ in R v Brown (Milton) [1998] 2 Cr App Rep 364 cited by Lord Dyson at [55]).

 

Peter Jackson J explains that in August 2015 – yes, 2015 – the matter was allocated to HHJ Kushner QC.  Her first task, said the judge, was to conduct a hearing of the mother’s allegations which were likely to have a strong effect on the welfare decision, whether proved or not. He went on: ‘[10] A broad survey of the events over the past two years makes very concerning reading.  It would be no exaggeration to say that practically no progress has yet been made;’ and he then lists 10 examples of why he was concerned at the lack of progress.

 

At the conclusion of all this, the circuit judge ordered that the father be permitted to cross-examine the mother. She then appealled against this decision; and, in the course of the appeal, advance an ‘additional ground of appeal, based upon the general failure of case management’.

 

Peter Jackson J allowed the mothers appeal, and sent the case back to another judge in the court appealled from. Perhaps his most controversial finding was that the father had no right to ‘cross-examine’ or ask questions of the mother ([21], first bullet-point). Directions had already been given to which the father did not object. The court had made ‘repeated orders (five in all) requiring [him] to put his questions in writing’. The father did not comply, ‘no sanctions were applied, and it was not until 7 March 2017 (Day 2 of the hearing), that he eventually produced a list of questions’ ([10](ii)). In fairness to Peter Jackson J, he perhaps treated that direction as sufficient to deal with F’s ‘right to cross-examine’.