Dear Lord Chancellor – ‘domestic abuse’: time for a consistent approach in English law

A modern definition for Ministry of Justice

 

The Prison and Courts Bill clause 47 helpfully deals cross-examination of complainants as witnesses in family law domestic abuse proceedings.

 

The Sentencing Council have rephrased its proposed Guidance with the proposition that ‘domestic abuse’ replace ‘domestic violence’ as the criterion which – if accepted – should guide judges in sentencing of offenders http://www.sentencingcouncil.org.uk/wp-content/uploads/Intimidatory-offences-Consulation-Paper-WEB.pdf. A definition suggested by the draft Guidance is set out at the end of this letter. This is based on the Council’s view that the Guidance should be revised:

 

‘… to reflect the important changes in terminology, expert thinking and societal attitudes over the last ten years, in this important area of sentencing. ‘Domestic abuse’ is now the term used, rather than ‘domestic violence’, to reflect that both physical violence and controlling and coercive behaviour constitute abuse in domestic settings.’

 

Meanwhile family courts forms adhere to the old-fashioned ‘domestic violence’ terminology; and Legal Aid Sentencing and Punishment of Offenders Act 2012 Sch 1 para 12 adheres to the more restrictive, ‘domestic violence’:

 

Victims of domestic violence and family matters

12(1)Civil legal services provided to an adult (“A”) in relation to a matter arising out of a family relationship between A and another individual (“B”) where—

(a)there has been, or is a risk of, domestic violence between A and B, and

(b)A was, or is at risk of being, the victim of that domestic violence.

 

A definition of ‘domestic violence’ was added in 2013 by Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) Order 2013 http://www.legislation.gov.uk/uksi/2013/748/article/4/:
‘“domestic violence” means any incident, or pattern of incidents, of controlling, coercive or threatening behaviour, violence or abuse (whether psychological, physical, sexual, financial or emotional) between individuals who are associated with each other;’.

 

This sounds to me as if abuse is an aspect of violence – which it can be; but that a Legal Aid Agency decision-maker could say that the more extensive definition (ie domestic abuse) is not comprised always in the more restrictive (ie domestic violence).

 

The wider spectrum of domestic abuse is applied to children and ‘vulnerable’ adults (LASPOA 2012 Sch 1 para 3); but not to others in a family relationship. Is that a fair assumption?

 

Time for reform: Prison and Courts Bill

 

Is it not time to amend the narrower, unfair (to the person abused) and out-moded definition – namely ‘domestic violence’ – in legal aid legislation, family law forms and in any other circumstances? The wider ‘domestic abuse’ would be applied always for grant of legal aid? You would have one consistent set of terminology for all relevant circumstances.

 

If you agree is not the Prison and Courts Bill a good opportunity to do this?

 

Yours sincerely

 

 

 

David Burrows

 

 

Scope of the [Sentencing Council] guideline

 

  1. This guideline identifies the principles relevant to the sentencing of cases involving domestic abuse. There is no specific offence of domestic abuse, it is a general term describing a range of violent and/or controlling or coercive behaviour.

 

  1. A useful, but not statutory, definition of domestic abuse used by the Government is:

 

Any incident or pattern of incidents of controlling, coercive, threatening behaviour, violence or abuse between those aged 16 or over who are, or have been, intimate partners or family members regardless of gender or sexuality. The abuse can encompass, but is not limited to: psychological, physical, sexual, financial, or emotional.

 

  1. Controlling behaviour is a range of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capabilities for personal gain, depriving them of the means needed for independence, resistance and escape and/or regulating their everyday behaviour.

 

  1. Coercive behaviour is an act or pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten the victim.

 

  1. The Government definition includes so called ‘honour’ based abuse, such as female genital mutilation (FGM) and forced marriage. Domestic abuse occurs amongst men and women, people of all ethnicities, sexualities, ages, disabilities, immigration status, religion or beliefs, and socio-economic backgrounds. Care should be taken to avoid stereotypical assumptions regarding domestic abuse.
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Child’s evidence – Part 2: contact and domestic violence

Child welfare, contact – and a practice direction

 

In Re S (a Child) [2017] EWCA Civ 44 (as explained in Part 1 of this series) the Court of Appeal allowed one ground only of a mother’s (M) appeal. That ground related to whether or not her eight year-old son, A, may have been physically abused by his father (F). M did not oppose contact in principle but wanted it to be safe for the child. (Though represented below, the child seems not to have appealled, nor to have made representations in the Court of Appeal.) As reported in Part 1 the parents had a short relationship. In the court below the judge had found three of M’s allegations proved: controlling behaviour and violence exacerbated by drink. A last allegation was based on what A had told a family support worker, but which the judge had rejected; though the judge had not heard what the child had to say about what had happened.

 

This series looks at how European law deals with child issues arising in connection with this case; and hypothetical issues which arise from it where law reform is need or is under review, as follows:

 

  • Child’s rights and Art 24 – Considered in Part 1.
  • Domestic violence and contact with A – How should the present and proposed PD12J, Child Arrangements & Contact Order: Domestic Violence and Harm effect this case (again this practice direction was not mentioned specifically in Court of Appeal)?
  • Cross-examination of M had F been unrepresented – How might the cross-examination of M been dealt with had F been unrepresented before the judge? This subject is now proposed by the Secretary of State for Justice (Ms Truss) to be reformed.
  • Relocation to Ireland and further hearings about A – To be considered in Part 3.

 

Children’s fundamental rights

 

This article looks at the Re S case (above). It is considered especially from the point of view of the child; in the light of rights of the child under EU Charter law; and of recent reforms to existing UK statute law (especially Children Act 1989 (CA 1989) s 1).

 

Charter of Fundamental Rights of the European Union (2000/C 364/01) Art 24 on the ‘Rights of a Child’ states:

 

  1. Children shall have the right to such protection and care as is necessary for their well-being. They may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity.
  2. In all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration.
  3. 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.

 

By contrast, PD12J (considered further below) requires consideration to be given to ‘Representation of the child’ as follows:

 

  1. Subject to the seriousness of the allegations made and the difficulty of the case, the court shall consider whether it is appropriate for the child who is the subject of the application to be made a party to the proceedings and be separately represented. If the court considers that the child should be so represented, it shall review the allocation decision so that it is satisfied that the case proceeds before the correct level of judge in the Family Court.

 

Amendments to Children Act 1989 s 1

 

Children Act 1989 s 1(2A) and (2B) were amended with effect from April 2014 in the context of the court dealing with the welfare of a child of a broken relationship as follows:

 

1 Welfare of the child 

(1)  When a court determines any question with respect to –

(a)the upbringing of a child;… the child’s welfare shall be the court’s paramount consideration….

(2A) A court, in the circumstances mentioned in subsection (4)(a)…, is as respects each parent within subsection (6)(a) to presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child’s welfare.

(2B) In subsection (2A) ‘involvement’ means involvement of some kind, either direct or indirect, but not any particular division of a child’s time.

 

These ponderous amendments to a previously clear section are elaborated upon in s 1(6):

 

(6) In subsection (2A) ‘parent’ means parent of the child concerned; and, for the purposes of that subsection, a parent of the child concerned –

(a)is within this paragraph if that parent can be involved in the child’s life in a way that does not put the child at risk of suffering harm; and

(b)is to be treated as being within paragraph (a) unless there is some evidence before the court in the particular proceedings to suggest that involvement of that parent in the child’s life would put the child at risk of suffering harm whatever the form of the involvement.

 

Welfare of a child is to equated with involvement – direct or indirect (s 1(2B)) – of a parent in a child’s life (s 1(2A)); but not where that contact, on evidence before the court, ‘would put the child at risk of suffering harm’ (s 1(6)).

 

In its original form Practice Direction 12J – Child Arrangements & Contact Order: Domestic Violence and Harm (PD12J) was designed to deal with questions of domestic violence alongside contact. It was issued in 2008 in response to the first report of Women’s Aid into ‘Twenty-Nine Child Homicides’. It was re-issued to in its present form, at the same time as introduction of the Family Court and of the amendments to CA 1989 s 1. More background to this is explained at Cris Curley’s article ‘Domestic Violence and the Impact on Contact Re-examined’.

 

PD12J contact and domestic violence

 

PD12J sets out as its purpose (§2) that it is intended ‘to set out’ what should happen in relation to contact proceedings where domestic violence is admitted, or that a child or a party has experienced domestic violence by a parent; or that there is a risk of such violence. In its present form it accompanies the CA 1989 s 1 amendments referred to above; but there is little attempt to link what is set out in PD12J to the formal provisions Family Procedure Rules 2010 themselves in relation to domestic violence proceedings (Family Law Act 1996 part 4 and FPR 2010 Part 10).

 

Amendments are now proposed in a report prepared by Cobb J for the President of the Family Division, ‘Review of Practice Direction 12J FPR 2010’  (18 November 2016). This may provide a move away from what has been seen under s 1(6) as ‘contact at all costs’ with a new §4 (see below) which displaces the presumption where contact could place a child at risk or the other parent’s life at risk, or either at significant harm. Law reform is needed here; but in what terms should this be done and by what means in law should it be achieved?

 

In an attempt to improve the position of children where domestic violence has been proved Cobb J proposes as follows:

 

  1. Where the involvement of a parent in a child’s life would put the child or other parent at risk of suffering harm arising from domestic violence or abuse, the presumption in section 1(2A) of the Children Act 1989 shall not apply. The Family Court presumes that the involvement of a parent in a child’s life will further the child’s welfare, so long as the parent can be involved in a way that does not put the child or other parent at risk of suffering harm.

 

A footnote to this paragraph explains:

 

The statutory presumption in section 1(2A) CA 1989 applies ‘unless the contrary is shown. Where the involvement of a parent in a child’s life would put the child or other parent at risk of suffering harm, then it is suggested that the contrary would indeed be shown. Paragraph 4 has been re-worked in order to give prominence to the avoidance of risk of harm.

 

Thus it is proposed that a practice direction should put a gloss on the law not provided for by Parliament.

 

Practice direction and law

 

A practice direction can neither create nor change the law. In that sense it is not law. It is there to guide procedure. In Secretary of State for Communities and Local Government v Bovale Ltd and anor [2009] EWCA Civ 171, [2009] 1 WLR 2274  the Court of Appeal considered whether a judge could make a practice direction or issue practice guidance. They explained what a practice direction is – now issued by the President of the Family Division with approval of the Lord Chancellor (Courts Act 2003 s 82).

 

The particular significance of this is that if an abused parent or child goes to court thinking that the new practice direction protects them, they may find that a judge is persuaded by the other parent that it does not. The judge may take the view that a practice direction cannot tell a court to ignore the law (as the proposed new §4 seems to do). This similar, though in different scale, to the Supreme Court telling the Prime Minister that she could not ignore Parliament and must have a bill for UK to leave Europe.

 

Thus, in Bovale, the Court of Appeal assumed that the function of a practice direction was subsidiary to and supportive of a rule which already defined procedure:

 

[36] … We accept that one object of the practice directions which supplement the rules is to provide guidance to litigants but they also contain directions as to the procedure that should be followed.

 

Children must be protected, especially where the court has evidence of their harm; but if this is to be done by restrictions on or refusal of contact this affects the rights of a parent and of the child. It must be done in a way which complies with law and brings the law in a fait way within the terms of Art 24(3) of the Charter (above). If it is to be said that, as a matter of law, ‘the contrary is shown’ (per CA 1989 s 1(2A)) and that the ‘involvement of [a] parent in the life of the child concerned’ may inhibit a child’s welfare, a statutory presumption is overridden by a practice direction. Thus where – as in Re S violence may be proved against him (it has been proved against A’s mother) – then those allegations must be stated in an Act of Parliament as the basis for findings under s 1(6); and the problems of the parents (mostly women) and children affected must be given the dignity in statutory provision (which does not include a practice direction) which their difficulties demand.

 

And the attempted change of the law must not, please, be left to be exposed as not-law by a violent father. That would enhance the abuse still further.

 

Further abuse by cross-examination

 

Abuse by cross-examination in family courts   looked at the issue of the experience – mostly of women – being cross-examined by an unrepresented former partner, against whom abuse is alleged. It was said by the all-parliamentary group which had reported in October 2016 whose report was considered there:

 

Women and children’s experiences of domestic abuse do not end when the relationship with their abuser ends…. Many women report feeling re-victimised and re-traumatised through the family court process, they can find it difficult to access formal legal advice and representation, and now routinely end up being cross-examined by their abuser when they are representing themselves in court as Litigants in Person.

 

Cobb J’s report proposes an addition to §28, which deals with the hearing of any contact issue:

 

  • The judge or lay justices must not permit an unrepresented alleged abuser to cross-examine or otherwise directly question the alleged victim, and must not require an unrepresented alleged victim to cross-examine or otherwise directly question the alleged abuser.

Victims of violence are likely to find direct cross-examination by their alleged abuser frightening and intimidating, and thus it may be particularly appropriate for tThe judge or lay justices may to conduct the questioning on behalf of the other party in these circumstances, in order to ensure both parties are able to give their best evidence

 

The article went on to look at measures which could be used to alleviate this issue on analogy with what is to be found in Youth Justice and Criminal Evidence Act 1999 (YJCEA 1999). Where domestic violence is alleged where contact is in issue the question and court proceedings there are therefore two immediate issues:

 

  • To ensure that it is not necessary for a complainant (A) or the child(ren) concerned (C) to be submitted to cross-examination by the alleged abuser (B); and
  • If A wishes to cross-examine B, and she does not have legal representation, to ensure that cross-examination for her is carried out fairly by someone else who is suitably qualified.

 

This article considers the question of cross-examination in person of C by B (the subject of cross-examination of A is dealt with in the article referred to and is now proposed for reform by the Secretary of State for Justice).

 

The analogy with criminal proceedings must be pursued. There a witness in C’s position is protected (YJCEA 1999 Part 2 Ch 2). The court may – sometimes must, by law – provide protection by imposing an advocate on the unrepresented B (who would otherwise have the right to cross-examine: European Convention 1950 Art 6.3(c)) to cross-examine a victim (s 38(4); and see Evidence in family proceedings by David Burrows (2016, Family Law/LexisNexis) at Ch 8 ). The court appointed advocate has no ‘responsibility’ to the accused (s 38(5); Criminal Procedure Rules 2015 Part 23). The advocate is paid from public funds (s 40).

 

Cross-examination of the child

 

Dealing with a child’s evidence – as could be the case with the child A in the Re W case – calls for sensitive case management and special attention by the court. If it were to be approached as in criminal proceedings, it will call for public funding (now under review by the Ministry of Justice).

 

For children giving evidence in criminal proceedings YJCEA 1999 s 34 reads:

 

No person charged with a sexual offence may in any criminal proceedings cross-examine in person a witness who is the complainant, either—

(a)in connection with that offence, or

(b)in connection with any other offence (of whatever nature) with which that person is charged in the proceedings.

 

YJCEA 1999 Part 2 Ch 2, as its heading asserts, is designed to provide ‘Protection of witnesses from cross-examination by accused in person’. YJCEA 1999 s 38(4) deals specifically with cross-examination of a defence witness, which is prohibited as far as the defendant personally is concerned. It provides that an advocate ‘must’ be appointed to cross-examine to protect a witness, where the various forms of allegation of abusive situation in ss 34-36 apply:

 

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

 

YJCEA 1999 s 38(5) says that the advocate is ‘not responsible’ to the defendant, which must be taken to mean that, as for any advocate, his/her duty is to the court and that he must, in fairness to both complainant and the defendant, do his/her best in objective terms to secure for both a fair trial; but s/he has no client and takes direction from the court. Procedure for appointment is set out in Criminal Procedure Rules 2015 (‘CrPR 2015’) Part 23.

 

Payment is by public funds. YJCEA 1999 s 40 (as an insertion to Prosecution of Offences Act 1985 s 19(3)) says – with no fuss, and under the heading ‘Funding of defence representation’:

 

… To cover the proper fee or costs of a legal representative appointed under section 38(4) of the Youth Justice and Criminal Evidence Act 1999 (defence representation for purposes of cross-examination) and any expenses properly incurred in providing such a person with evidence or other material in connection with his appointment.

 

Much may already be possible under the common law says Lady Hale (Re W (Children) (Abuse: Oral Evidence) [2010] UKSC 12, [2010] 1 FLR 1485  (a case involving evidence from a 14 year-old child witness) the family courts can act (italics added):

 

[28] There are things that the [family] 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…. One possibility is an early video’d cross examination…. Another is cross-examination via video link [or] 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.

 

Child’s rights: contact and domestic violence

 

In R v Lubemba & Ors [2014] EWCA (Crim) 2064, [2015] 1 WLR 157 the Court of Appeal (Criminal Division) was concerned with the evidence of another 8 year old (C). A judge had decided to refuse to hear in criminal proceedings. JP was one of two accused whose convictions were under review in the Court of Appeal, Criminal Division in that appeal. He had been convicted on three counts of sexual assault on C. Special measures directions had been given as Hallett LJ explained:

 

[9] … The child’s video interview, in which she gave a clear and concise account, was to be played as her evidence-in-chief and she was to be cross-examined by defence counsel, Mr Bennett, using the live link. He undertook to limit his questioning and to conduct his cross-examination in accordance with the Advocate’s Gateway Toolkit. All parties agreed that [C], described as an intelligent and capable witness, was willing and able to attend court to be examined and that the services of an intermediary were not required.

 

On day of the hearing, C attended court to be cross-examined over the live-link (YJCEA 1999 ss 18(1) and 24). The prosecuting barrister took defence counsel – both, not doubt, without wigs and gowns (YJCEA 1999 s 26) – to meet C. She was with her parents and both counsel thought she was content to give evidence. After this, and on his own, the judge went to see C and then announced to the court that C was unable to participate in the proceedings. Her only evidence was the video. She could not be asked any questions by the defence. Her parents gave evidence.

 

JP appealled on the ground that, because the judge had prevented any attempt at C being asked any questions he had not had a fair trial. His appeal was allowed. Of children giving evidence generally the Court of Appeal in R v Barker [2010] EWCA Crim 4  (per Lord Judge LCJ) said:

 

[42] The trial process must, of course, and increasingly has, catered for the needs of child witnesses, as indeed it has increasingly catered for the use of adult witnesses whose evidence in former years would not have been heard, by, for example, the now well understood and valuable use of intermediaries. In short, the competency test is not failed because the forensic techniques of the advocate (in particular in relation to cross-examination) or the processes of the court (for example, in relation to the patient expenditure of time) have to be adapted to enable the child to give the best evidence of which he or she is capable. At the same time the right of the defendant to a fair trial must be undiminished (emphasis supplied).

 

Call for law reform

 

Both areas of court process – contact arising from alleged violence and what proved violence requires in relation to contact – call for urgent law reform. That must include, on both points, reform of statute law. This will reflect the need for funding if alleged perpetrators are to cross-examine complainant of child witnesses in person. If statutory presumptions are to be altered for the protection of the children concerned, then this cannot be by practice direction. That is not enough if a parent against whom CA 1989 s 1(6) imputations are made against him/her who validly objects to what the proposed PD12J para 4 seeks to do.

 

And when all this is fully reformed, the Minister of Justice is urged to tell the Family Procedure Rules Committee that a practice direction is not sufficient to reform procedure. It must be as part of Family Procedure Rules 2010; it must span those parts of the rules which deal with children proceedings and with proceedings for domestic violence (FPR 2010 Part 10 and 12); and it must reflect the EU Charter and must take account of children’s evidence and views ‘in accordance with their age and maturity’ (Art 24(1) of the Charter).

Domestic violence children contact and a new PD12J

What does the law say?…

 

The heading of the Marilyn Stowe blog by Paul Apreda, the National Manager of the Welsh charity FNF (Families Need fathers), Both Parents Matter, Cymru entitled ‘Are the best interests of the child no longer paramount?’  is controversial, perhaps deliberately so. It refers to the draft practice direction (PD), which in its present form is entitled Family Procedure Rules 2010 Practice Direction 12J – Child Arrangements & Contact Order: Domestic Violence and Harm (‘PD12J’).

 

In this note, in an attempt to provide clarity in any debate, I should like to look at the statutory principles in issue, namely Children Act 1989 s 1, described by Paul Apreda as the ‘corner stone’ – the paramountcy principle – of children law. Section 1 was extensively amended by Children and Families Act 2014 (CFA 2014). I want to look at the words – just the words – and what they may mean in their legal context. I will try to do that without PD or parental feelings overlay.

 

A number of amendments to the present version of PD12J are proposed in a report to the President of the Family Division, Sir James Munby, by Cobb J . The controversial (as between Cobb J and Paul Apreda) passage in PD12J is, as proposed by Cobb J (with the original shown here as deleted) is:

 

4 Where the involvement of a parent in a child’s life would put the child or other parent at risk of suffering harm arising from domestic violence or abuse, the presumption in section 1(2A) of the Children Act 1989 shall not apply.n [I pick up the n below] The Family Court presumes that the involvement of a parent in a child’s life will further the child’s welfare, so long as the parent can be involved in a way that does not put the child or other parent at risk of suffering harm.

 

Cobb J’s report is published by Sir James Munby with his 16th View from the President’s Chambers ‘Children and vulnerable witnesses – where are we?’ . Sir James comments on the report, but seems to accept what is recommended for the redraft of para 4.

 

Law reform, Henry VIII and a practice direction

 

Paul Aspreda makes his position on this passage clear from his opening paragraph:

 

Stephen Cobb is a very senior Judge in the Family Court. He is a remarkable man. He recently proposed an effective end to the paramountcy principle – the overarching golden rule in family proceedings that the best interests of the child are paramount. But not content with demolishing the corner stone of the system, it looks as though he may believe the family courts can overrule the will of Parliament too.

 

In doing this he picks up an argument, also mentioned in my ‘Domestic violence & family proceedings: Practice direction amendments to protect vulnerable witnesses & children’ (). How appropriate is it to legislate by PD? As I explain later, it cannot lawfully be done. The point is developed by ‘Lucy R’ in ‘Imaginary judges use imaginary powers to reform imaginary law’ where she says (of ‘judges’ but she is speaking of a PD):

 

Judges can’t changes the law. Parliament changes the law. In this case, Parliament does it by approving a Statutory Instrument that amends the Family Procedure Rules. That Statutory Instrument comes from the Family Procedure Rules Committee, a committee created by Parliament, which the judges don’t control.

 

It is not even as simple as that. If a rule tries to change the law, it can only do so in the rare events that Parliament says it can. Otherwise it is known as that form statutory instrument frowned upon by constitutional lawyers, namely a Henry VIII clause (as explained by the Supreme Court recently in R (Rights of Women) v Lord Chancellor and Secretary of State for Justice [2016] EWCA Civ 9: where the Legal Aid Agency (‘LAA’) tried to change a law which Parliament had already made). As matters now stand only Parliament can change the law in this area; or it can be done by rule-makers and approved by Parliament.

 

As to the lesser form, practice directions: a PD cannot change the law (as I hope to show). Paul Aspreda’s assertion as to the proposed PD change raises important questions:

 

  • What is the law in this area: Act of Parliament and PD?
  • What does the law say and mean?
  • How can it be changed, in particular can it be changed by practice direction?

 

Children Act 1989 s 1 and PD12J

 

The two sources of law which run through this discussion are the post-2014 CA 1989 s 1 and PD12J para 4. Cobb J has proposed the amendment to para 4 (amongst a number of others) in a report to Sir James Munby P. This note will set out the relevant bits of CA 1989. My review of the proposed PD amendment depends on a careful reading of the words in s 1. Considerable effort went into making the original Act as clear as possible for all readers. I am sorry to say, the 2014 amendments have made the waters of that relatively clear statutory drafting a little muddy; but that is what we must work with.

 

CA 1989 s 1 is designed to give first priority to the welfare of any child involved in any proceedings. So far as relevant to this article s 1 says:
1 Welfare of the child 

(1)  When a court determines any question with respect to –

(a)the upbringing of a child;… the child’s welfare shall be the court’s paramount consideration….

(2A) A court, in the circumstances mentioned in subsection (4)(a) or (7), is as respects each parent within subsection (6)(a) to presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child’s welfare.

(2B) In subsection (2A) ‘involvement’ means involvement of some kind, either direct or indirect, but not any particular division of a child’s time.

(3) In [making an order], a court shall have regard in particular to –

(a)the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);

(b)his physical, emotional and educational needs;..

(e)any harm which he has suffered or is at risk of suffering;

 

As can be seen sub-paras (2A) and (2B) have been added. This was by CFA 2014, which also added s 1(6) and (7). I do not think it oversimplifies the amendments to say that paras (4)(a) and (7) refer to applications for child arrangements orders and parental responsibility orders. I will come back to para (6)(a) after looking at the parts of the PD which concern Paul Aspreda, and which affect parents who have been separated from their children in the context of domestic violence proceedings.

 

Lawfulness of PD12J

 

A practice direction is made by the President of the Family Division only, with approval of the Lord Chancellor (ie Ms Truss: see Courts Act 2003 (CA 2003) s 81). It does not go through any democratic process like an Act of Parliament (voted on by MPs) or court rules (eg Family Procedure Rules 2010, mentioned above). Practice directions do no more than deal with ‘the practice and procedure’ of family courts proceedings (CA 2003 s 81 and Civil Procedure Act 1997 s 5). As can be seen, a PD is relatively far down the legislative chain of legal force and reproduction.

 

CA 2003 s 81(2) says that family law PDs are made by the President (as explained above) are intended to govern ‘the practice and procedure of [family] courts in family proceedings’. The meaning of a PD, in general civil proceedings terms, was further explained by the Court of Appeal in U (A Child) v Liverpool CC [2005] EWCA Civ 475, [2005] 1 WLR 2657 by Brooke LJ. After citing the cases which say more about what PDs are, he said:

 

[48] …. It is sufficient for present purposes to say that a practice direction has no legislative force. Practice directions provide invaluable guidance to matters of practice in the civil courts, but in so far as they contain statements of the law which are wrong they carry no authority at all.

 

It follows from this, that a parent (perhaps most often a father) is entitled to ask – as does Paul Apreda – whether the revised para 4, if brought into effect, is dealing only with ‘practice’ (per s 81(2) and U v Liverpool; it is certainly not ‘procedure’). Or if, in reality, and in law, is the PD seeking to legislate? Does it attempt to set out ‘statements of law’, which the Court of Appeal says is ‘wrong’, that is, is it unlawful?

 

The aim of PD12J is set out at para 2: it is ‘to set out what the Family Court is should (sic) do in any case in which it is alleged or admitted, or there is other reason to believe, that the child or a party has experienced domestic violence or abuse perpetrated by another party or that there is a risk of such violence or abuse’. It defines ‘general principles’, and then deals with specific procedural matters where domestic violence is suspected or has been proved. Para 4 (set out above) is the first of the ‘general principles’; and Cobb J says of this in a foot note:

 

Para.4: The statutory presumption in section 1(2A) CA 1989 applies “unless the contrary is shown”. Where the involvement of a parent in a child’s life would put the child or other parent at risk of suffering harm, then it is suggested that the contrary would indeed be shown. Paragraph 4 has been re-worked in order to give prominence to the avoidance of risk of harm;

 

Children Act 1989 s 1 amendments

 

The CFA 2014 reforms centre (as do Cobb J’s proposed changes) mostly on s 1(2A) and (6), which is as follows:

 

(6) In subsection (2A) ‘parent’ means parent of the child concerned; and, for the purposes of that subsection, a parent of the child concerned –

(a)is within this paragraph if that parent can be involved in the child’s life in a way that does not put the child at risk of suffering harm; and

(b)is to be treated as being within paragraph (a) unless there is some evidence before the court in the particular proceedings to suggest that involvement of that parent in the child’s life would put the child at risk of suffering harm whatever the form of the involvement.

 

When the court is making a child arrangements order three factors arise; and these lead into and help to explain Cobb J’s proposed para 4:

 

  • There is a presumption that involvement of a parent in a child’s life ‘will further the child’s welfare’ (s 1(2A): seems surprising this needs to be set out in a statute; that point is not in issue here); and that parents can be involved in a child’s life without putting a child at risk (s 1(6)); unless
  • There is some reason – ‘unless the contrary is shown’ (s 1(2A)) – why the s 1(2A) presumption should not operate; or
  • ‘… there is some evidence before the court in the particular proceedings to suggest that involvement of that parent in the child’s life would put the child at risk of suffering harm…’ (s 1(6)(b)).

 

In a sense s 1(6)(b) is a particular aspect of s 1(2A): if 1(6)(b) is proved, the contrary to a child’s involvement is likely to be shown. But an aspect of s 1(6)(b) is ‘the child at risk’. Cobb J’s para 4 goes much wider. It is repeated here (I have added the italics and boldened ‘other parent’):

 

4 Where the involvement of a parent in a child’s life would put the child or other parent at risk of suffering harm arising from domestic violence or abuse, the presumption in section 1(2A) of the Children Act 1989 shall not apply.

 

‘…unless the contrary is shown…’

 

Adding ‘other parent’ to the proposed para 4 seeks to alter the law in a radical way. Children are the subject of protection in s 1, not any ‘other parent’. ‘Other parent’ was not included in the 2014 Act. Perhaps it should have been, but it was not. CFA 2014 received Royal Assent on 13 March 2014. If Parliament had wanted a particular interpretation to be placed on its words it would have said so, or it could have added those words to s 1(6). And if that is right, and if a PD is not the place to change the law, I would expect a challenge by a disgruntled parent – probably a father – before long; and that will only add to the unhappiness of another couple and their children.

 

Alternatively, a High Court judge, after hearing argument on the meaning of s 1(2A) and (6) in a particular case could tell us all what ‘… unless the contrary is shown…’ means in this context. With respect to the President of the Family Division – who when making a PD is an administrator not a judge – a PD is not lawfully the place to change the law; and this is so however well-meaning may be the intended Presidential reform. That is not what PDs are for.

 

Lucy R comments on the proposed para 4:

 

The problem is that this new version of paragraph 4 is that it isn’t what the actual statute says. And it is far from uncontroversial to say that the presumption put in place by parliament requires “contact at all costs”. The presumption is very carefully crafted so that where evidence is provided to show there is risk (which might be arising from domestic abuse or something else) that can’t be managed the presumption is disapplied…

 

There may be many cases where violence or other behaviour against the other parent – if proved – will mean that ‘the contrary is shown’. The presumption of involvement in a child’s life by a parent should be reduced appropriately (s 1(2A)). But this should be regulated by judicial decision in each case, not by the essentially undemocratic practice direction. And particularly it should not be done where something could have been said by Parliament in an act – Children and Families Act 2014 – which is not yet three years old.

 

Cobb J’s proposals have entirely understandable and laudable aims as fully explained by him in his report. They may not be lawful if introduced in a way which the law should not recognise. And if the PD seeks to change statute law – as it seems to do – it would go even further down the Henry VIII route even than did the LAA and Lord Chancellor did in changing legal aid eligibility. Changing the law is a long and winding, if well planned out, road; and most would say, so it should be if it is to be fair.

Abuse by cross-examination in family courts

 

Law reform, Women’s Aid and a Parliamentary domestic violence group

 

The All-Party Parliamentary Group report on domestic violence, Domestic Abuse, Child Contact and the Family Courts All-Party Parliamentary Group on Domestic Violence (APPG report) of October 2016  (https://www.naccc.org.uk/downloads/NewsItems/APPG_Inquiry_report_Domestic_Abuse_Child_Contact_and_the_Family_Court.pdf) deals with domestic abuse and with contact in the context of family cases where contact is ordered. This article deals only with domestic abuse in the context of family court proceedings, and in particular the further abuse which may be inflicted by cross-examination of the complainant (A) by the alleged abuser (B); and, perhaps to a lesser extent, where A – as a party – may wish to cross-examine B. This is a subject covered extensively on this site already (and parts of previous detail are repeated here). This takes the subject further by reference to the APPG report and concludes with specific suggestions for law reform, which teh Justice Secretary might like to consider.

 

The issue is described by the APPG report (page 4):

 

Women and children’s experiences of domestic abuse do not end when the relationship with their abuser ends…. Many women report feeling re-victimised and re-traumatised through the family court process, they can find it difficult to access formal legal advice and representation, and now routinely end up being cross-examined by their abuser when they are representing themselves in court as Litigants in Person.

 

The report recommends ‘special measures’ which in family courts terms are proposed to include ‘dedicated safe waiting rooms for vulnerable witnesses and separate entrance and exit times [for them in all] family courts’. These measures could go much wider, especially – as discussed here – in relation to Youth Justice and Criminal Evidence Act 1999 (YJCEA 1999) and as highlighted by Lady Hale in the Supreme Court in Re W (Children) (Abuse: Oral Evidence) [2010] UKSC 12, [2010] 1 FLR 1485 at §28 (and see https://dbfamilylaw.wordpress.com/2017/01/09/vulnerable-witnesses-and-children-human-rights-and-legal-aid/).

 

Where domestic violence and court proceedings there are therefore two immediate issues:

 

  • To ensure that it is not necessary for A to be submitted to cross-examination by B; and
  • If A wishes to cross-examine B, and she does not have legal representation, to ensure that cross-examination for her is carried out fairly by someone else who is suitably qualified.

 

This article therefore proposes:

 

  • Ways in which some funded help for A (under (1) and (2) above) can be provided as the law now stands; and
  • Specifically to draft a suggested law reform which can be set out as a Schedule to an existing Bill and added as an amendment to Family Law Act 1996 Part 4 (which deals with the present statute law on domestic violence).

 

Family proceedings: lagging behind criminal proceedings

 

On 20 December 2016 the Ministry of Justice published a statement by Sir James Munby, President of the Family Division which articulated ‘the pressing need to reform the way in which vulnerable people give evidence in family proceedings’. The need of the abused party (A) was highlighted in H v L and R [2006] EWHC 3099 (Fam) where a father (ie B) wanted to cross-examine his child’s abused mother. The judge, Roderic Wood J, ‘invited urgent attention’ (§[25]) to judges being given power to appoint a publicly funded advocate in criminal proceedings as under YJCEA 1999 s 38(4). 10 years later, beyond a review urged by the Guardian and Women’s Aid and ordered by the Justice Secretary, Lynn Truss, nothing has happened.

 

In criminal proceedings, a witness in A’s position is protected (YJCEA 1999 Part 2 Ch II). The court may – sometimes must, by law – provide protection by imposing an advocate on the unrepresented B (who would otherwise have the right to cross-examine: European Convention 1950 Art 6.3(c)) to cross-examine a victim (s 38(4); and see Evidence in family proceedings by David Burrows (2016, Family Law/LexisNexis) at Ch 8 http://www.jordanpublishing.co.uk/practice-areas/family/publications/evidence-in-family-proceedings#). The court appointed advocate has no ‘responsibility’ to the accused (s 38(5); Criminal Procedure Rules 2015 Part 23). The advocate is paid from public funds (s 40).

 

Complainant: a party to proceedings

 

Criminal proceedings in this area are procedurally different from civil proceedings, and especially family proceedings; though both are capable of dealing with the same set of facts, though with different results. In criminal proceedings Crown Prosecution Service takes proceedings. Though A is the complainant, she is a witness so there will always be a CPS advocate to deal with her evidence in court and to cross-examine B. In family proceedings she is, by definition, a party. She still gives evidence and may be cross-examined (as in (1) above, considered more below); but, if unrepresented, she is responsible for running the case and for cross-examining B (ie (2) above).

 

So if she may not best be able to deal with cross-examination of B, because intimidated or for all the reasons she may want an advocate appointed, then already – that is, as the law now stands – Matrimonial and Family Proceedings Act 1984 s 31G(6) says:

 

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

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

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

 

So long as a judge accepts that A is ‘unable to… cross-examine’ B – and in the context a judge should need little persuasion of that – then s 31G(6) applies and the judge will ‘ascertain’ from A matters which need to be put to B and will question him him/herself in terms which are in A’s ‘interests’.

 

Section 31G(6) has been the subject of a small amount of case law; but, for the avoidance of doubt in the area defined by (2), a clear steer (ie a finding) by the common law (ie by a High Court judge in a decided case) on the subject as soon as possible would be helpful.

 

Cross-examination of the complainant

 

It is the situation at (1) above which calls for extra care, and for public funding. Formal parliamentary law reform would be infinitely preferable, to put the issue beyond doubt. However, if A is legally aided then it is suggested here that help along the lines of YJCEA 1999 Ch 2, and especially ss 38(4) and 40, could be available and be treated analogically in family proceedings.

 

Chapter 2 starts the way it means to go on. It leads with s 34 which reads:

 

No person charged with a sexual offence may in any criminal proceedings cross-examine in person a witness who is the complainant, either—

(a)in connection with that offence, or

(b)in connection with any other offence (of whatever nature) with which that person is charged in the proceedings.

 

Chapter 2, as its heading asserts, is designed to provide ‘Protection of witnesses from cross-examination by accused in person’. YJCEA 1999 s 38(4) deals specifically with cross-examination of a defence witness, which is prohibited as far as the defendant personally is concerned. It provides that an advocate ‘must’ be appointed to cross-examine to protect a victim, where the various forms of abusive situation in ss 34-36 apply:

 

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

 

YJCEA 1999 s 38(5) says that the advocate is ‘not responsible’ to the defendant, which must be taken to mean that, as for any advocate, his/her duty is to the court and that he must, in fairness to both complainant and the defendant, do his/her best in objective terms to secure for both a fair trial; but s/he has no client and takes direction from the court. Procedure for appointment is set out in Criminal Procedure Rules 2015 (‘CrPR 2015’) Part 23.

 

Payment is by public funds. YJCEA 1999 s 40 (as an insertion to Prosecution of Offences Act 1985 s 19(3)) says – with no fuss, and under the heading ‘Funding of defence representation’:

 

… To cover the proper fee or costs of a legal representative appointed under section 38(4) of the Youth Justice and Criminal Evidence Act 1999 (defence representation for purposes of cross-examination) and any expenses properly incurred in providing such a person with evidence or other material in connection with his appointment.

 

Funding of help for the complainant: legal aid and Human Rights Act 1998 factors

 

Sir James’s 30 December 2016 statement continues: judges cannot act because ‘it requires primary legislation and would involve public expenditure’. Supreme Court authority doubts this. Much can be done by judges under the common law says Lady Hale (Re W (Children) (Abuse: Oral Evidence) (above) (a case involving evidence from a child witness) the family courts can act (italics added):

 

[28] There are things that the [family] 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…. One possibility is an early video’d cross examination…. Another is cross-examination via video link [or] 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.

 

If B’s cross-examination genuinely ‘diminishes’ (see YJCEA 1999 s 16) A’s evidence and denies her a fair trial, her European Convention 1950 Art 6(1) rights are engaged. If legal aid is not available (ie the case is outside LASPOA 2012 Sch 1 paras 11-13 (domestic violence etc)), A should apply for exceptional case funding (LASPOA 2012 s10(3); R (Gudanaviciene) v [LAA] [2014] EWCA Civ 1622). Resources questions can be addressed under the present law, whatever Sir James and Truss’s review say.

 

Common law and a fair trial

 

Witness/party protection and fair trial rights depend on:

 

  • Special measures (equivalent to YJCEA 1999 ss23-28 and per Re W [28] (above)) applicable in family proceedings; and
  • A has a right to a fair trial; and to give evidence of a quality which is not ‘diminished’ (akin to YJCEA 1999 s16).

 

If the above is right A must be protected by special measures such as a ‘s 38(4)’ equivalent advocate: is her trial fair without this? If the answer is ‘no’ then A’s fair trial rights are engaged, and LASPOA 2012 s 10(3) may apply. This article argues that protection for A can be funded – now – from an existing legal aid certificate (Sch 1 paras 11-13) and pro-active common law case management. And, it must be stressed: this is not a plea for Presidential ‘practice guidance’ or a ‘tool-kit’. It is a straight-forward urging – with Lady Hale’s Re W words in mind – to a High Court judge to order appointment to be funded from a civil legal services certificate (the that judge is willing to find it within his/her inherent jurisdiction). It is a straight question of whether the common law is willing to move in that direction.

 

If para 11-13 legal aid is not available, then if A’s evidence is ‘diminished’ (within the terms of YJCEA 1999 s 16), and if a fair trial is thereby threatened, European Convention 1950 Art 6(1) is engaged. LASPOA 2012 s 10(3) may bite. Either way, can YJCEA 1999 s 38(4) be applied by analogy in family proceedings? And, if so, can it be funded by legal aid?

 

With CrPR 2015 Part 23, s 38(4) provides a model for court advocate appointment. B has a fair trial: his ‘accuser’ is professionally cross-examined. The following argument can be tested in the Family Division, alongside Lady Hale’s Re W§[28] comments:

 

  • a High Court judge has inherent jurisdiction to regulate the court’s procedure;
  • justice would be promoted (perhaps only made possible: operation of YJCEA 1999 Part 2 readily attests to this) by a ‘s38(4)’ appointment
  • this assistance cannot now be funded direct from public funds (cf YJCEA 1999 s40)
  • with pro-active case management this can be done on legal aid certificate (either under a conventional Sch 1, or a s10(3), certificate).

 

Law reform and public funding: the court appointed advocate

 

Finally, what about statute law reform? It will be assumed, first, that s 31G(6) does what it is said to do above, but common law clarity would be helpful.

 

This leaves the court-appointed advocate, the funding of that advocate and amendments to the rules to cover that. For example, drawing directly on YJCEA 1999 ss 34, 38(4) and 40 amendments to Family Law Act 1996 along the lines of the following could be passed in Parliament:

 

  • In the circumstances set out in paragraph (2) no person (B) who is the subject of an application under this Act may in any family proceedings cross-examine in person a party (A) to those proceedings who is the complainant in connection
  1. with that application; or
  2. in any other proceedings in which the allegations the subject of the application arise [ie to cover issues also in eg contact proceedings].

 

  • The circumstances referred to in paragraph (1) are that A has made an application under this Act and has requested the judge that an appointment be made as at paragraph (3) below.

 

  • If application is made under paragraph (2) for A to be cross-examined other than by B the court must appoint a qualified legal representative (chosen by the court) to cross-examine the witness in the interests of the accused.

 

  • The person appointed at paragraph (3) is not responsible to B

 

  • To cover the proper fee or costs of a legal representative appointed under Family Law Act 1996 s ## [ie (3) above] (respondent’s representation for purposes of cross-examination) and any expenses properly incurred in providing such a person with evidence or other material in connection with his or her appointment [shall be met from public funds].

 

This will need tightening up a lot; but it represents a start….

Vulnerable witnesses and children: human rights and legal aid

Cross-examination of victims of domestic violence

 

Women’s Aid and the Guardian are concerned about the lack of protection for victims of domestic violence in family courts where their alleged abuser is permitted to cross-examine them. This article develops some of the ideas touched on in my earlier Vulnerable witnesses, parties and children in family proceedings at https://dbfamilylaw.wordpress.com/2017/01/05/vulnerable-witnesses-parties-and-children-in-family-proceedings/. The wider problems of vulnerable witnesses and of children in family cases go much deeper than this, as will be explained. The question to be addressed here is: can these problems be helped by legal aid under the existing statute and common law? Sir James Munby P (or his Ministry of Justice draftsperson) thinks not. I think he – or the Ministry – may be wrong.

 

On 20 December 2016 the Ministry of Justice published a statement by Sir James which articulated ‘the pressing need to reform the way in which vulnerable people give evidence in family proceedings’. Family justice ‘lags woefully behind the criminal justice system’, he said. The problem identified by Women’s Aid arises where an alleged abuser (‘B’: generally male, though not invariably) personally cross-examines the victim (‘A’) in (say) domestic violence proceedings; including, as the Guardian says, by ‘tormenting’ her in court.

 

Under press pressure the Justice Secretary, Lynn Truss, has ordered a review. In reality the problems, partly those of the women in A’s position, go much deeper than Truss’s review. In truth they are a feature of the unmet legal need faced by the real shortcomings in our family just system when it comes to protection of child witnesses and other vulnerable witnesses (as identified eg by Amnesty International: see eg Cuts that hurt (2016) Amnesty International (https://www.amnesty.org/en/documents/eur45/4936/2016/en/)).

 

‘Urgent attention’ judicially requested 10 years ago

 

The problem identified above is precisely illustrated by the facts in H v L and R [2006] EWHC 3099 (Fam) [2007] 2 FLR 162 where an alleged abuser (ie B) wanted to cross-examine the abused mother (A) of his child. Roderic Wood J said, in a judgment given over 10 years ago (7 December 2007):


[25]   I would invite urgent attention as to creating a new statutory provision which provides for representation in such circumstances, analogous to the existing statutory framework governing criminal proceedings as set out in the 1999 Act. Such a statutory provision should also provide that the costs of making available to the court an advocate should fall on public funds. I can see no distinction in policy terms between the criminal and the civil process.

 

The same can apply, in exactly the same way, to child or young adult victims of alleged abuse (see eg Re A (Sexual Abuse: Disclosure) [2012] UKSC 60). H v L and Re A are 10 and five years old respectively; yet the problem subsists. Judges think they are powerless to help, lawyers – it seems – can see no way through and the Ministry of Justice is impervious to the problems. This article question whether, in law, the judges are as powerless as they and the President seems to think.

 

Child and vulnerable witness protection in criminal proceedings

 

In criminal proceedings in the parallel situation, the child or other vulnerable witness (eg a party to alleged domestic abuse) cannot be put in this ‘tormented’ position. In relation to a child, s/he has automatic protection by the court having power to impose and order payment from public funds of an advocate to cross-examine a victim. YJCEA 1999 Part 2 Ch II (ss 34-40) is entitled ‘Protection of witnesses from cross-examination by accused in person’. By analogy in family proceedings this can be taken to include one allegedly abusive party of another, of a witness (as in Re A (above) or of a child. The tone is set by s 34 (a subject more widely explained by Lady Hale in R (D (a minor)) v Camberwell Green Youth Court [2005] UKHL 4, [2005] 1 WLR 393; and see Evidence in family proceedings by David Burrows (2016, Family Law/LexisNexis) at Chs 8 and 19):

 

No person charged with a sexual offence may in any criminal proceedings cross-examine in person a witness who is the complainant, either—

(a)in connection with that offence, or

(b)in connection with any other offence (of whatever nature) with which that person is charged in the proceedings.

 

YJCEA 1999 Part 1 Ch II widens the spectrum of offences to deal with other forms of abusive allegations. Section 38(4) provides that and advocate ‘must’ be appointed to cross examine (as mentioned in the otherwise unhelpful Re K & H (Children) [2015] EWCA Civ 543)) to protect a victim, where ss 34-36 apply:

 

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

 

The advocate has no ‘responsibility’ to the accused (s 38(5)). Procedure for appointment, which could be adapted for use in family courts is fully set out in Criminal Procedure Rules 2015 (‘CrPR 2015’) Part 23.

 

Resources implications; legal aid

 

Sir James’s statement (or the MoJ draftsperson) continues: the family courts judiciary cannot act because ‘it requires primary legislation and would involve public expenditure. It is therefore a matter for ministers’. This is unlikely to be the law. Yes, public expenditure is involved; but much of this can be provided under judges existing common law and statutory powers (including use of YJCEA 1999 ‘special measures’ by analogy) and with full use being made of exceptional case funding (LASPOA 2012 s 10(3))).

 

In Re W (Children) (Abuse: Oral Evidence) [2010] UKSC 12 (a case involving evidence from a child witness) Lady Hale spoke of existing measures and of family court judges’ reticence to use them (emphasis added):

 

[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…. One possibility is an early video’d cross examination…. Another is cross-examination via video link [or] 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.

 

Scale of the problem in family courts

 

The problem is much wider than the Justice Secretary seems to understand. In 2014 a working group was set up by Sir James to consider the evidence of vulnerable witnesses where this might be ‘diminished’ by their attendance in court as witnesses, parties or other participants in family proceedings (considered further in http://www.familylaw.co.uk/news_and_comment/family-proceedings-common-law-and-vulnerable-witnesses).

 

The group produced draft rules in mid-2015. The draft took many leads from criminal proceedings under Youth Justice and Criminal Evidence Act 1999 (special measures to help children and vulnerable witnesses). Still no new rules have been formalised. The draft covers children and vulnerable individuals. It includes – but this is only one element – provision for those who are subjected to further abuse by being cross-examined in person by their alleged abuser. Victims include one of a former couple; a child who gives evidence proceedings; or any other witness in family proceedings.

 

The Ministry is aware that the rules amendments have resources implications; but so too have the 1999 adjustments in criminal proceedings. In family proceedings legal aid could be used in European Convention 1950 exceptional case funding for vulnerable parties and children; and many of the criminal proceedings measures are already available but not used, in family proceedings as Lady Hale has pointed out in Supreme Court (Re A (Sexual Abuse: Disclosure) [2012] UKSC 60, [2013] 1 FLR 948 at §[28]).

 

Exceptional case funding

 

Legal aid may be available as an ‘exceptional case’ (LASPOA 2012 s 10(1)) where funding is not otherwise available under the relatively narrow range of representation under the main civil legal aid provisions of LASPOA 2012 Part 1 Sch 1 (available civil legal services). Section 10(2) then goes on to provide that is the LAA considers the case appropriate for an exceptional case determination and an applicant is available on means, civil legal services can be provided. Section 10(3) defines an ‘exceptional case’:

 

(3)For the purposes of subsection (2), an exceptional case determination is a determination—

(a) that it is necessary to make the services available to the individual under this Part because failure to do so would be a breach of—

(i) the individual’s Convention rights (within the meaning of the Human Rights Act 1998), or

(ii) any rights of the individual to the provision of legal services that are enforceable EU rights, or

(b) that it is appropriate to do so, in the particular circumstances of the case, having regard to any risk that failure to do so would be such a breach.

 

In R (ota Gudanaviciene & Ors) v The Director of Legal Aid Casework & Ors [2014] EWCA Civ 1622 the Court of Appeal made clear that ‘Exceptionality [under s 10(3)] is not a test’ (§[29]), it is a descriptor of the legal aid to be granted. The court (at §§[31]-34]) explained how the Legal Aid Agency should treat and assess an application for exceptional case funding.

 

Resolution of resources questions

 

YJCEA 1999 ss 16 and 17 create three categories of witness who may be eligible for assistance by a special measures direction. A witness under 17 is automatically entitled to assistance (s 16(1)(a)). Secondly, s 16(1)(b) deals with incapacitated witnesses (as defined in s 16(2)); and  thirdly, s 17(1) with witnesses effected by “fear or distress”. In the last two cases the court must be satisfied that any evidence “is likely to be diminished” by the circumstances of evidence being given. In what follows “witness” by analogy will include a party in family proceedings.

 

If a witness comes within one of the categories in YJCEA 1999 ss 16 or 17 s/he may be eligible for special measures assistance (YJCEA 1999 ss 23-30), including: preventing a witness from seeing a party (YJCEA 1999 s 23); evidence by live link (s 24); hearing a witness’s evidence in private (s 25); video recorded evidence or cross-examination (ss 27 and 28); and questioning a witness through an intermediary (s 29) or device (s 30). In family proceedings, the measures available for a witness would be the same as for a party.

 

If the tormenting or other in-court abuse of the witness/party denies her a fair trial, including because the value of her evidence is ‘diminished, it is not a fair trial fair for her or for the party for whom she is giving evidence. European Convention 1950 Art 6(1) rights are engaged. Means assessment permitting, and if legal aid is not already available, she may be entitled to legal aid as an exceptional case determination (LASPOA 2012 s 10(3)). If this is correct, resources questions can be addressed now, without changes to primary legislation. The law in this area – which Lady Hale’s comment in Re A [2012] above clarifies – could be represented by:

 

  • The list of special measures in YJCEA 1999 ss 23-28 as developed and explained by Lady Hale in Re W can be applied, by analogy or where otherwise already available, in family proceedings;
  • Regard being paid to the victim – ie A’s – right to a fair trial; and as to what is required to ensure she can give evidence of a quality which is not diminished (YJCEA 1999 ss 16 and 17); and
  • If rights are required to be protected by special measures and an intermediary (or cross-examination by an advocate in the same way as in YJCEA 1999 s 38(4)), then is her trial fair without this (if resources must be spent)?

 

If the answer to the final question above is ‘no’, then her fair trial rights, are engaged. If she has legal aid under a certificate within the terms of LASPOA 2012 Sch 1 paras 11-13 (domestic violence, children etc), then this needs amendment to secure intermediary or advocacy help (on analogy with YJCEA 1999 s 38(4)). If not, and fair trial rights are in issue, then s 10(3) exceptional case determination may be engaged.

 

Effective, imaginative and pro-active case management

 

The practical and resources issues which children and vulnerable witnesses raise fall into two main categories:

 

  • A as a victim or alleged abuse: that is, in the situation identified by the Guardian and Sir James Munby P (and dealt with in H v L and R (above) and (less satisfactorily) in Re K & H (Children) [2015] EWCA Civ 543 sub nom K and H (Private Law: Public Funding)[2016] 1 FLR 754
  • The child or other vulnerable individual (as eg defined by YJCEA 1999 s 16 and 17) – or a party, under the same pressures in family proceedings – who gives evidence, which may be diminished by the circumstances of the case, and where special measures are called for (see Lady Hale in Re W [2010] (above) and Re A (above)).

 

Given what was said by Lady Hale in Re W the second category of cases resolves itself by effective, imaginative and pro-active case management which, as Lady Hale asserts, judges can do, but fail to take on (things ‘the court can do but … that it is [not] used to doing at present’: Re W per citation of §[28] above). If a party has legal aid – and practitioners should be wary of any statutory charge issues if the certificate applies to other proceedings – then proactive case management and full use of court resources (eg video-link; live-link and screens) can deal most special measures. If particular intermediary support is needed and this has resources issues amendment of legal aid will be needed.

 

YJCEA 1999 s 38(4) (quoted above) – if this is taken as a model for now for what follows – deals with potentially abusive cross-examination, where B is unrepresented, by imposing on B an advocate (who is not ‘responsible’ to B). It requires him/her to assist the court and to ensure, in the circumstances, that B has a fair trial; and to do so by cross-examining A. This is funded by B cannot in law do so. How would that work in family proceedings? Under YJCEA 1999 s 40 payment from public funds is provided for (and the working of these payments is touched on by Justice denied? The experience of unrepresented defendants in the criminal courts April 2016, by Transform Justice at p 15 (http://www.transformjustice.org.uk/wp-content/uploads/2016/04/TJ-APRIL_Singles.pdf). If the Ministry of Justice can do this for victims in criminal proceedings, why not the same for those in a similar position – perhaps being cross-examined on the same facts as those in criminal proceedings – in family proceedings?

 

‘Special measures’ and legal aid

 

Category (1) (above) represents the Truss review problem. This can be funded – now – from an existing certificate (Sch 1 paras 11-13). If para 11-13 legal aid is not available, then if A’s evidence is ‘diminished’ and a fair trial threatened, Art 6(1) is engaged; and s 10(3) may bite. Either way, can YJCEA 1999 s 38(4) be applied by analogy in family proceedings? And, if so, can it be funded by legal aid?

 

With CrPR 2015 Part 23, s38(4) provides a model for court advocate appointment. B has a fair trial: his ‘accuser’ is professionally cross-examined. The following argument can be tested in the Family Division, alongside Lady Hale’s Re W§[28] comments:

 

  • a High Court judge has inherent jurisdiction to regulate the court’s procedure;
  • justice would be promoted (perhaps only made possible: operation of YJCEA 1999 Part 2 readily attests to this) by a ‘s38(4)’ appointment
  • this assistance cannot now be funded direct from public funds (cf YJCEA 1999 s40)
  • with pro-active case management this can be done on legal aid certificate (either under a conventional Sch 1, or a s10(3), certificate).