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’.

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Vulnerable witnesses, parties and children in family proceedings

Cross-examination of victim by an alleged abuser

 

The Justice Secretary, Liz Truss, and her Ministry of Justice have woken up – at last – to the real dangers and hardship created by the present framework of certain family proceedings. The hardship has been aggravated by the cut-backs in legal aid since April 2013.

 

On 30 December 2016 a statement by Sir James Munby, President of the Family Division (https://www.judiciary.gov.uk/announcements/president-of-the-family-division-sir-james-munby-cross-examination-of-vulnerable-witnesses-in-the-family-court/) was issued by the Ministry. It followed a Guardian report before Christmas which dealt with, as it was said, the further abuse of domestic abuse victims permitted by family courts (https://www.theguardian.com/society/2016/dec/22/revealed-how-family-courts-allow-abusers-to-torment-their-victims ). The concerns raised by the Guardian and the President have lead to a report that the Justice Secretary, Lyn Truss, is looking into the problems raised (https://www.theguardian.com/society/2017/jan/04/truss-orders-review-to-ban-abusers-tormenting-victims-in-family-courts); and the Guardian has followed all this with a strong leader voicing concerns at the delay in protection for unrepresented victims of alleged abuse (https://www.theguardian.com/commentisfree/2017/jan/05/the-guardian-view-on-family-courts-cuts-hurt?utm_source=dlvr.it&utm).

 

This note concentrates – as do the Guardian articles – on the victims of alleged abuse; but the subject and the reforms needed in the family justice system go much wider; though these reforms altogether, alongside those referred to by Sir James, are together stalled by the delays insisted upon by Ministry of Justice. Reforms are urgently needed in three separate (if sometimes overlapping) areas of the work of the family courts:

 

  • the evidence of children (as distinct from their views) in their own proceedings (as in Re W [2010] (below));
  • cases where the judge may be asked to hear the views of a child; and
  • the evidence of vulnerable adult witnesses (as in eg Re A [2012] (below)).

 

Evidence of ‘vulnerable people’ in family proceedings

 

In his statement Sir James emphasised ‘the pressing need to reform the way in which vulnerable people give evidence in family proceedings’. He pointed out that ‘the family justice system lags woefully behind the criminal justice system’ (eg under Youth Justice and Criminal Evidence Act 1999 (YJCEA 1999) Part 2, as discussed below). He said that the courts cannot act, since ‘it requires primary legislation’; and any action ‘would involve public expenditure. It is therefore a matter for ministers’.

 

The criminal justice ground work – to which the President refers – is in place under YJCEA 1999. A background to this legislation is provided, for example, by Lady Hale in House of Lords in R ((D) (a minor)) v Camberwell Green Youth Court [2005] UKHL 4, [2005] 1 WLR 393 at para [19] (and see R v Lubemba & Ors [2014] EWCA (Crim) 2064 and Evidence in family proceedings by David Burrows (2016, Family Law/LexisNexis) Chs 8 and 19).

 

Lady Hale considered the specific subject of vulnerable witnesses, their evidence and cross-examination by their alleged abuser, in Re A (Sexual Abuse: Disclosure) [2012] UKSC 60, [2013] 1 FLR 948. She stressed the ‘flexible’ bases on which family courts can deal with evidence from witnesses – and by extension, children – who, it is said, had been abused by a party (eg by the father of A in Re A):

 

[36] It does not follow, however, that X [a vulnerable young adult] will have to give evidence in person…. 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…. 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….

 

In the Camberwell Green Youth Court case (above) Lady Hale explained the background to YJCEA 1999 which aims to deal with the ‘quality of a witness’s evidence’ (s 16(5)). Sections 16 and 17 create three categories of witness who may be eligible for assistance by a special measures direction: first, 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 (eg child, alleged abuse victim etc) in family proceedings.

 

Family proceedings and the VWCWG

 

Sir James Munby set up the Vulnerable Witnesses and Children Working Group (‘VWCWG’) in mid-June 2014. Six weeks later the Group produced an interim report which recommended a single ‘new mandatory rule [yes, a single rule] … supplemented by practice directions (PD) and guidance…’. The group did not deal with the three aspects of the issues, mentioned at the start of this article, which their brief demanded.

 

By Spring 2015 a further draft report was produced, followed six months later by draft rules (https://consult.justice.gov.uk/digital-communications/draft-amendments-to-family-procedure-rules/supporting_documents/annexachildrenvulnerablewitnessesfprcdraftrule.pdf) which were put out for consultation. And that is as far as this has been taken by Ministry of Justice. The draft rules have yet to be formalised, and a practice direction issued to support them. From Sir James’s statement it seems likely that the Ministry of Justice has now realised that resources issues arise, which were not considered in the VWCWG reports. The Justice Secretary who, we are told, has taken this on must now be aware – as her office should have been, at least two years ago – that state expense will be involved to protect victims (as is the case for those needing protection under YJCEA 1999, Part 2).

 

Youth Justice and Criminal Evidence Act 1999, Part 2

 

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 Re W (Children) (Abuse: Oral Evidence) [2010] UKSC 12, [2010] 1 FLR 1485 Lady Hale spoke of the YJCEA 1999 measures and to the way family courts might 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.

 

Sir James Munby P says he would ‘welcome a bar’ to the ability of ‘alleged perpetrators being able to cross-examine their alleged victims’; but, a lack of ‘primary legislation’ to incur ‘public expenditure’ – ‘a matter for ministers’ – makes law reform impossible. If Lady Hale in the Supreme Court (Re W [2010] (above) and the human rights implications of legal aid legislation (per Legal Aid Sentencing and Punishment of Offenders Act 2012 s 10(3)) are followed, it is questionable whether this is necessarily the case.

 

Lady Hale’s statement in Re W [2010] is authoritative guidance on the current state of the law and the ‘things the court can do’. Measures in YJCEA 1999 ss 23-28 are already largely available for family proceedings. The ‘intermediary’ point creates resources implications which can depend on case management; and case management depends on whether the intermediary or other legal assistance (per YJCEA 1999 s 38(4)) can be provided on legal aid.

 

Legal aid, ‘resources’ questions and a fair trial

 

‘The questions which challenge the child’s account’ must be fairly put to the child, says Lady Hale. This is essential; ‘not that counsel should be able to question her directly’ (Re W [26]). If this is so for a child, does not the same apply for any other vulnerable witness or party?

 

If ‘fair’ questioning is the criterion, then if this cannot be done because of the effects on a witness’s evidence then can it be a fair trial if that evidence is not given through an intermediary, or if an advocate is not instructed per YJCEA 1999 s 36(4) to cross-examine the victim for an alleged abuser acting in person? ‘The court’s only concern in family proceedings’, says Lady Hale in Re A (above) at [36] ‘is to get at the truth.’ The witness – or party in many family proceedings – must be able ‘to give their evidence in the way which best enables the court to assess its reliability’; and, says Lady Hale, ‘it is certainly not to compound any abuse which may have been suffered…’

 

If obtaining the truth does not represent a trial which is fair for the victim, then her (or the child’s) European Convention 1950 Art 6(1) rights are in issue and – means assessment permitting – she may be entitled to legal aid as an exceptional case determination (LASPOA 2012 s 10(3)). If this is correct, many resources questions can be addressed under the present legal aid scheme. No immediate changes to primary legislation would be needed to take protection for victims a long way towards the added protection they need.

 

David Burrows

5 January 2017

VULNERABLE INDIVIDUALS AND CHILDREN IN FAMILY PROCEEDINGS

Response to consultation

SUMMARY

This response to the Ministry of Justice draft consultation on amendments to Family Procedure Rules 2010 in relation to children and vulnerable individuals (‘the draft’) is prepared by David Burrows. He is a 42 year admitted family law specialist solicitor advocate who has chaired Resolution (then SFLA), who was an enthusiast from the start for much of what was in Report of the Committee on One-Parent Families July 1974 Cmnd 5629 and who is a founder contributor to Family Court Practice (the ‘Red Book’). He continues to specialise in family and administrative law: as a practising lawyer, teacher, writer and jurist.

This response traces the back-ground to the draft and then goes on to a factor which FPRC seem to have neglected – fudged even (as will appear[1]): namely to look at the statutory or common law underpinning of the proposed reforms. The FPRC minutes, at Annex 1 below, record Ryder LJ asserting the scheme to be ‘intra vires’; but intra vires what? This is not stated.

As will be explained below, judicial duties cannot be created by a rule. They are a matter of law; since they create also a balancing right which can be enforced by prerogative writ. This is a serious area of law, which seems not to have even been debated by FPRC.[2]

This response then goes on to refer to the central aspect of the amendments namely ‘measures’ (draft r 3A.7). This also needs a statutory foundation to define the measures; as does provision for their funding (eg for advocates to assist the court with cross-examination of vulnerable witnesses and other now discretionary bases for ‘measures’; and see contrast between H v L & R and Re K and H (both cases referred to below): neither case are referred to by FPRC, as if it hopes the effects of them will be provided for on some Treasury wing or prayer).

My response proceeds by examining the rules with detailed commentary thereon, but before it does so it alludes to their main failings (apart from the question of their statutory vires):

  • FPRC are trying to deal with two quite separate subjects: children and their part in proceedings and/or seeing the judge; and vulnerable individuals (parties and witnesses) taking part in family proceedings. These must be separated.
  • The term diminished, in context, is of limited – and perhaps pejorative – meaning.
  • How are their central feature – intermediaries – to be funded?
  • How will their requirements, especially for evidence, work where the open justice principle applies in family proceedings?
  • There is no point in family lawyers inventing the wheel: all civil jurisdictions must sign up to a fresh set of rules (so far as they are needed) to cover the subject.

The way forward

The way forward could be relatively simple:

  • To draft rules which deal specifically for children to be heard (this is a separate subject which the rules do not clearly provide for)
  • That application can be made by vulnerable individuals (which may include individuals under 18) to have their evidence dealt with by intermediary or other specific means (video etc) (broadly as in draft r 3A.7)
  • To ensure by slight amendment (or reference in practice direction) that case management directions take account of the special needs of vulnerable individuals.

Statutory provision must be made for any funding requirements of these three factors; including funding of the need identified by Roderic Wood J and HHJ Bellamy in H v L & R and Re K and H at first instance. These cases cannot just be ignored as FPRC does.

Till these simple principles are met, accepted and translated into simple rules, a response to the consultation must proceed.

I        INTRODUCTION AND BACKGROUND

Genesis of the draft rules

The consultation invited by FPRC requires a brief consideration of the genesis of the present draft, beginning with a few lines from Sir James Munby P dated 4 June 2014. This formed the background to the setting up of a working group under two High Court judges.[3] This note defined three separate areas for ‘review’: (1) judge’s meeting children, (2) children giving evidence and (3) ‘vulnerable people giving evidence in family proceedings’.

The working group immediately conflated these three into one, and recommended a single rule change by their paper dated 31 July 2014; and that this rule should be in place by early January 2015. In March 2015 a report (dated ‘February 2015’) emerged. Given our concerns that this exercise should be co-ordinated in all jurisdictions, around a third of it consists of a quote from the Court of Appeal (Criminal). It included a draft rule. Each of the three subjects identified by Sir James are still conflated.

The short point for the present is that there is no real philosophical underpinning to what is proposed. There is no clear stamen in any of these documents as to what FPRC thinks is the current state of the law. Their June 2015 meeting was addressed by Ryder LJ who is known not to be a heavy-weight in the law area. He gives no exegesis as to what are the common law and (if any) statutory roots of what is proposed. There is no acknowledgment that generally a rule cannot create a duty (as at the proposed rr 3A.2, 3A.4 and 3A.5): only the law can do that.

In my response to the original interim report[4] I stressed:

[17] The working group is requested to recall that a rule cannot alter the law; and thus to reflect on the extent to which their reforms seek to amend the law that it must be within the terms of powers delegated to FPRC or that primary legislation is required.

H v L and R: Roderic Wood J

The third aspect of the issues set out above, namely dealing with ‘vulnerable people’ giving evidence was given prominence by Roderic Wood J in H v L and R (below) where he reviewed the then availability of provision for a witness being cross-examined by an alleged abuser (a similar discussion occurs at the end of Lady Hale’s judgement in Re A (Sexual Abuse: Disclosure) [2012] UKSC 60, [2013] 1 FLR 948).

In H v L and R [2006] EWHC 3099 (Fam) [2007] 2 FLR 162 a father applied for contact with his 9 year old daughter. A hearing was to determine the truthfulness of abuse allegations made by A the mother’s daughter by a different father. Now an adult, A was a borderline anorectic and a suicide risk. The father acted in person. In criminal proceedings the mother’s daughter would have been protected from cross-examination by the litigant in person by virtue of the Youth Justice and Criminal Evidence Act 1999; but how would this work in family proceedings. The father was entitled to cross-examine A, though she was a vulnerable witness who had alleged that he had sexually abused her when she was a child. The judge took the view that all available options – including a guardian appointed under r 9.5 of the Family Proceedings Rules 1991, CAFCASS Legal, the Official Solicitor, the free representation unit – even the judge himself – were either inappropriate or unavailable. Following the court’s urgent request, the Attorney-General exceptionally agreed to provide an advocate.

The judge recommended then that new statutory provisions analogous to the existing statutory framework governing criminal proceedings as set out in the YJCEA 1999 were urgently required for civil proceedings to provide representation in circumstances such as those arising in the instant case (see para [25]). An so it was – over eight years later, and after one statute (Children and Families Act 2014) which left out any statutory provision – that draft Family Procedure (Amendment No X) Rules 2015[5] were published in early August 2015. (A barely unlawful period of only 20 days – August should be ignored for computation of the period – was allowed for consultation).

The proposal is that Family Procedure Rules 2010 be amended by adding Part 3A – Children and vulnerable persons: participation in proceedings and giving evidence (not to be confused with ‘protected parties’ see FPR 2010 Part 15). A draft practice direction (referred to in the amendment rules) is still awaited. It is promised that this be consulted on separately (sic). And, it must be added at this stage, it is not clear yet how the issues thrown up by H v L and L will be dealt with and paid for under these rules.

Recent background to the draft rules

The background to these proposed amendment rules can be found in the Report of the Vulnerable Witnesses & Children Working Group, February 2015 (‘Report of VW&CWG’; https://www.judiciary.gov.uk/wp-content/uploads/2015/03/vwcwg-report-march-2015.pdf) and the Group’s earlier ‘interim report’; and then in the minutes of the Family Procedure Rules Committee (‘FPRC’: role explained below) of 15 June 2015. In those minutes (pare 4: see Annex 1 below) Ryder LJ (not a member of the committee) explained the legislative form of the rules: that they had been set out in the form of:

… a draft statutory instrument. These had been drafted so as to be intra vires[6] and in the Committee’s usual drafting style. By virtue of clever drafting it was considered that the draft did not conflict with the overriding objective and did not create any new legal obligation.

This minute suggests that Ryder LJ’s urging FPRC to accept that ‘clever drafting [of the rules] did not create any new legal obligation’ makes the proposed amendments somehow of questionable legality. (The committee do not query any of this: most are family lawyers, who are not accustomed to challenging vires of anything, let alone asking what is meant and exactly of what when the term is used).

In fact the rules seek to create new duties which can only be done by statute or the common law (neither of which apply here). A duty gives rise to a right; and that right is protected by remedies such as judicial review and, in extremis, by a claim for damages. There is nothing that I can see in Courts Act 2003 ss 75 and 76 which permits so free-wheeling an approach to creation of judicial duties and thus of rights in those affected by assertion only of FPRC.

One of the aims of this response must be to ask: what is the existing common law on the subject[7] (eg in the area of case management). The statutory foundation, where needed (such as over funding), must be provided. This seems to have been deliberately evaded by FPRC (the draft rule ‘did not create any new legal obligation’). This must not, please, be allowed if the protections and assistance required by new rules is to be made real.

Children and vulnerable individuals

The draft rules conflate two very different aspects of family law: children (already dealt with in various parts of the rules) and vulnerable individuals in family proceedings. Thus, children proceedings are extensively covered in Part 12, and children in proceedings is dealt with in Part 16. It will only confuse readers of the rules still further if the children parts of Part 3A are in yet another part of the rules.

In any event, to try to mix up the two subjects and to find common aspects to them (eg ‘measures’ (r 3A.7) and case management features (r 3A.6)), is artificial and confusing. The children rules should be in Part 16 and the rest mostly in Part 4 and, as the draft relates to evidence, in Parts 21-23.

II       STATUTORY PROVISION

COURTS ACT 2003

Making of the draft rules

The separate subjects-matter of the draft rules are of pre-eminent concern to family law administrators (as the VW&CWG showed). The reforms require proper funding. But they cannot be sneaked in – as Ryder LJ proposes – by a rule-making back-door and without clear plans as to how they will be funded and, in the case of the ‘measures’ given effect to.

The present powers of FPRC are defined by Courts Act 2003 ss 75-76 (see Annex 2 below). FPRC make no attempt to frame their draft rules in the context of their statutory powers. Some areas do not need rule change: they are there in the common law case management powers of the court in Part 4 (which can be beefed up fractionally). In general though, having yet more rules in different parts of already diffuse rules does not make for clarity. This is so especially where provision is already there for a good judge (operating under the existing common law). Nor does further rules improve a reader’s understanding within the terms of Courts Act 2003 s 75(5) (rules ‘simply expressed’ etc).

LAW REFORM: COMMON LAW OR STATUTE

Statutory under-pinning

The Ryder LJ note shows no appreciation, other than its reference to evasion, to the need for statutory under-pinning for these reforms. Apart from the need to comply with ss 75 – 76 above, it seems to me that the draft rules will require at least the following statutory input:

 

Duties to consider

Each of draft rr 3A.2(1), 3A.4(1) and 3A.5(1) impose a duty on the court. This represents an imposition on a judge which can only be made by law (ie not by a rule). Unless this duty is to be found in the common law, it must be the subject of primary legislation.

That said, neither rule change nor legislation is probably necessary. If the fact of ‘diminishment’ is drawn to a judge’s attention and lawful directions proposed to deal with it the ‘diminishment’ will be dealt with by the court anyway[8] – funds permitting.

Mostly difficulties do not lie in the generalities which these draft rules deal with, but in particular types of proceedings and need for help for the vulnerable, for which payment must be made (and thus these rules do not provide) eg

  • How do you, get into court and pay for, and advocate to cross-examine in the H v L&R case; or guarantee it will happen?
  • How do you get the judge to realise that a person cannot read?
  • How do you pay for court documents to be copied because someone cannot read English
  • How do you get evidence to court where a person cannot face their (alleged) abuser?
  • How do you pay for an advocate to the court where confidential documents must not be read by a party?

Are any aspects of all this different if a party is in person (a point picked up in the original July 2014 working paper, but lost since)?

Intermediaries

The term ‘intermediary’ is not defined. The FPRC minutes show 3 comments raised on the whole subject of ‘measures’ and none directly on ‘intermediaries’ (though committee members seem to have only had a couple of days’ notice of the terms of the final draft considered by them).

It is this aspect of what is intended (and its funding) which will dictate the success of the vulnerable individuals aspect of this scheme; yet there is no indication of what FPRC had in mind on how that was costed. A request for information on the funding aspect received this polite but meaningless reply:

The Committee is aware of the general principle that the Rules cannot require funding from a public authority. Should consultation responses raise this issue further, this will be looked at in light of those comments. Ministry of Justice policy officials were consulted as part of the drafting of the rules. They have regular contact with colleagues in the Legal Aid Agency and have discussed the draft rules with them as appropriate. Should the Legal Aid Agency need to be involved further following consultation, that will be done.

Legislation is needed to deal with the subject of intermediaries: what are they exactly, how are they to be dealt with if (for advocates) through the present discretionary channels of the Attorney-General, how to be dealt with if special advocates or in a closed material procedure (see eg under Justice and Security Act 2013 and CPR 1998 Part 82). Most importantly, if professional or otherwise requiring payment, how are ‘intermediaries’ to be funded?

Funding and intermediaries

Legislation is needed to deal with funding of intermediaries, whether they be to help with disabled parties (including the deaf etc) or witnesses, to deal with CMP procedures and PII cases; and to deal with cross-examination by an alleged abuser. Ryder LJ does not seem to have drawn Re K & H (Children) [2015] EWCA Civ 543 (22 May 2015) to the attention of FPRC; though Matrimonial and Family Proceedings Act 1984 s 31G(6) is one of the three points discussed under ‘measures’.[9]

Vulnerable individuals in all civil proceedings

These rules are intended to apply only to family proceedings (ie under FPR 2010). Why? The same issues arise in all civil proceedings (criminal proceedings have their own rules). Questions over children will predominate more in family proceedings, we accept. However there is no logic in not having one set of rules and legal principles which apply in all civil courts and tribunals. (At a basic level, more rules only creates (1) work for lawyers, which increases expense for the public, and (2) work for the judges which means more expense for the taxpayer.)

Open justice principle

A question remains whether these rules (especially rr 3A.4, 3A.5 and 3A.7) have been drafted without proper concern for their common law context. From Scott & Anor v Scott [1913] AC 417 through Attorney General v Leveller (above) to A v BBC (above) the SCt/House of Lords have been concerned with the legitimacy of exceptions to OJP.

If the common law is to be altered in such a way that it affects fundamental rights of anyone involved in the proceedings it can only be done by express statutory provision (see eg R v Secretary of State for the Home Department, exp Simms [2000] 2 AC 115, Lord Hoffman). A rule is not enough. Some of the amendments proposed by the draft may need review through a statutory sanction prism.

At all times it must be recalled that these rules must be framed on the basis that in terms of the OJP, probably FPR 2010 rr 27.10 and 27.11 are ultra vires the rule makers (Allan v Clibbery [2002] EWCA Civ 45, [2002] Fam 261, [2002] 1 FLR 565 shows how easy it is to prove that point). Therefore any rule which deals with vulnerable witnesses – eg adults who have to give evidence in non-children proceedings (eg child sexual abuse injunction cases – may have to be protected legitimately from concerns about publicity. Rules on intermediaries need to be drafted with that in mind.

No thought has been given to how a child or a witness, either of whom is not a party to proceedings, is to make an application in the proceedings to have their views considered or to be asked to be found ‘diminished’.

III     CONTENT OF THE DRAFT RULES

‘CHILDREN AND VULNERABLE PERSONS’

Conflation of subject matter

The draft rules conflate two very different subjects:

  • Children in proceedings – their participation in proceedings – eg expression of their views to the court; their evidence; their receipt of information etc: see esp r 3A.3(2)) (see Part 3 below).
  • ‘Vulnerable’ individuals – whose evidence or participation ‘is likely to be ‘diminished’ (a term which must be taken to taken to be the same as ‘vulnerable’ (Part 4 below).

‘Vulnerable’ person – person ‘diminished’

‘Vulnerable person’ is in the title to Part 3A, but it is not used in the text of the rules, nor is it defined. ‘Vulnerability’ is implied by an individual’s participation or evidence being ‘likely to be diminished’ (rr 3A.1(1), 3A.4(1) and 3A.5(1))? It is not made clear what this means or what it is said to be ‘diminished’ by. The dangling of the verb diminishes the sense of ‘diminished’.

Courts Act 2003 s 75(5) requires that all FPR 2010 must be ‘both simple and simply expressed’ so that ‘the family justice system is accessible, fair and efficient’. The amendment rules are intended for children and the vulnerable. If they are to be intra vires the powers of FPRC they must be clear – in general terms, and for individuals who must use them, in particular. The reader of Part 3A may him/herself be an unrepresented ‘vulnerable person’ (see eg Re M (A Child) [2015] EWFC 71 (4 August 2015) where a mother lacking capacity failed to obtain legal aid), who may need fully to be able to understand them.

Interpretation

FPR 2010 r 2.3(1) deals generally with interpretation under FPR 2010; yet Part 3A starts with an ‘interpretation’ rule (why not in r 2.3(1)?). This should be crucial to understanding the rules; but it leaves out the definition of a number of terms:

  • ‘Vulnerable’ witness or participant – though ‘vulnerable’ is in the heading to the draft, it appears nowhere else. It is not defined (though perhaps it is implied from the term ‘likely to be diminished’: rr 3A.4(1) and 3A.5(1) (see below))
  • ‘Proceedings where a child is involved – (r 3A.1(1) probably it is intended to be the same as ‘participation’ as set out in r 3A.2(2)?)
  • Participation of a party or their evidence ‘is likely to be diminished’ – is stated by rr 3A.1(1), 3A.4(1) and 3A.5(1); but ‘diminished’ by what? This is left open, which means ‘diminished’ loses its sense: it is a verb which must be relative to something else.
  • ‘Child’s age and maturity’ (r 3A.2(3)) – see below
  • Measures’ – ‘measures’ (not perhaps an ideal word) has a specific meaning set out in r 3A.7, to which cross-reference might have been provided in r 3A.1(2).

 

  • ‘Case management’ and directions – the various references to case management (eg rr 3A.3(2), 3A.4(2), 3A.5(2)) and directions (rr 3A.6 and 3A.9) can be taken to supplement those in eg FPR 2010 rr 1.4(2) and 4.1; but this could be made more clear.

Other definitions which might be expected include:

  • ‘Diminished’ – critical to what part of these rules is about is not defined.
  • ‘Participate in proceedings’ – this term (also ‘participation in proceedings by a party or witness) is central, for children, to the draft rr, but is defined only inferentially by r 3A.2(2).
  • Child’s ‘competence’ to give evidence: considered in Report of VW&CWG at §8 in §39 quoted from R v Barker [2010] EWCA Crim 4 per Lord Judge LCJ.
  • ‘Protected party’ (r 3A.4(2)(b)) – reference is made briefly to ‘protected party’. This term is defined in r 2.2(1) as ‘a party… who lacks capacity (within the meaning of [Mental Capacity Act 2005] to conduct proceedings’. Perhaps this might have been repeated in Part 3A, with a reference also to its place in Part 15.

Content of the draft rules

The draft rules then go on to deal with children then diminished adults in proceedings. The draft requires the court to consider whether (r 3A.2), and if so how (r 3A.3), a child should ‘participate in proceedings’ (Part 3 below). If a child is accepted by the court to participate, r 3A.3(2) sets out the ‘case management’ directions which the court should consider. Draft rules 3A.4 and 3A.5 consider the ‘participation’ and ‘evidence’ of a party to, or witness in, proceedings (presumably intended to apply to a ‘vulnerable’ individual), and whether this ‘is likely to be diminished.

Provision for case management directions for children and the ‘diminished’ are at rr 3A.6 and 3A.7 (Parts 5 and 6 below). Rules 3A.8 and 3A.9 sets out when Part 3A should be applied (by the court: ‘as soon as possible after the start of proceedings’: r 3A.8(1)); and what an application must include. The court can proceed on its own initiative (r 3A.10). A party applies under FPR 2010 Part 18 (r 3A.9(3)). We are not told what a witness, or child not a party does, to activate the rules? They have no formal status in the proceedings. Must they rely on the court’s initiative (r 4.3), or on a party to apply under FPR 2010 Part 18.

CHILDREN IN PROCEEDINGS

Child as participant or ‘involved’ in family proceedings

Draft rr 3A.2 and 3A.3 deal with whether and, if so, how a child should ‘participate in the proceedings’. The question of participation in proceedings is, in effect, defined by r 3A.4(2) by a specific set of circumstances of where a child may be involved:

(2) … the child is—

(a) a party to the proceedings;

(b) the subject of the proceedings but not a party to them; or

(c) otherwise affected by matters in the proceedings.

It is not obvious to the casual reader that the drafter of the r 3A.4 appreciates that FPR 2010 Part 16 (Chs 2 – 4) already deals with a child as ‘a party to the proceedings’ (r 3A.2(2)(a) (above)):

  • Ch 2: when the court may make the child a party
  • Ch 3 (rr 16.3 and 16.4): when a guardian will be appointed
  • Ch 4: where a children’s guardian is not required; and involvement of a solicitor for the child (and see Re CT (A Minor) (Wardship: Representation) [1993] 2 FLR 278, [1994] Fam 49, CA)

The draft does not make clear why what it seeks to achieve is not threaded, logically, into Part 16. That said, in addition to Part 16 the draft deals with a child’s participation by asserting the need for the court to take account of:

  • The way a child’s views should be made known to the judge; and if so, how
  • Whether a child should be made a party (where not already a party: r 3A.3(2)(c))
  • Whether a child should give evidence in court; and if so subject to what (if any) r 3A.7 ‘measures’ or otherwise (r 3A.3(2)(e) and (f): PD still awaited).

Child’s participation in proceedings: a legal obligation

Whether ‘a child should participate [or ‘involved’?] in proceedings’ must be considered by the court (r 3A.2(1)); and, if so, ‘how’ is dealt with in r 3.A.3. Rule 3A.2(1) unquestionably creates a legal obligation. A rule, in law, cannot do this (Jaffray v The Society of Lloyds [2007] EWCA Civ 586). If I were a judge I should want more foundation than this to do my job. (One appreciates the scale of the problem when, by comparison, you look at the relatively trivial matters included in Children and Families Act 2014 (eg s 3 and expert evidence, which confirmed a rule which FPRC had already purported to make)).

If a child is to participate ‘the court must consider how’ and whether case management directions need to be made ‘to assist the child’ (r 3A.3(1)) as set out in the prescribed list in r 3A.3(2) (does it need to be prescribed: surely it should be an ‘including’ list). This list should be in Part 4 to give it proper prominence; or failing that in Part 16.

‘Information’ (r 3A.3(2)(a)) to be received by a child, raises questions of where a child – as a party – should not receive information (see open justice principle below); and how that information is to be communicated. Concerning ‘joined as a party’ and representation ((2)(c) and (d)): see r 16.3-16.6. Child giving ‘evidence’: how, to whom and subject to any ‘measures’ ((2)(e) and (f))? This must first be subject to questions of ‘competence’ and maturity considered in R v Baker (above).

‘Child’s age and maturity’

Rule 3A.2(3) provides:

(3) Before making a direction under paragraph (1) [child’s participation in proceedings], the court must consider any views expressed by the child about participating in the proceedings taking into account the child’s age and maturity.

‘Age and maturity’ is tossed in in a throw-away phrase; yet it is a legal concept which has a jurisprudence running from Gillick v West Norfolk and Wisbech AHA [1986] 1 AC 112 [1986] 1 FLR 224 via Children Act 1989 s 1(3)(a), Mohan v Mohan [2013] EWCA Civ 586 and to the present day. It is not clear from the rules how ‘age and maturity’ is to be assessed in practice. For the lay-person reading these rules, more needs to be said by the rule-makers at this stage.

Children: views or evidence?

The Report of VW&CWG (at §§ 22 to 26) seems to distinguish – as it must – between (1) views and wishes of children expressed to the judge and (2) their evidence.

  1. The purpose of children meeting the judge making the decision in their case needs careful consideration and delineation; this will include the management of the expectations of the child and of the judge. There is a dangerous conflation of the need for the child or young person to be part Vulnerable Witnesses & Children WG Report Final March 2015 15 of the proceedings and to be given an understanding the legal process (which should include meeting the judge if appropriate) with having her or his views, wishes and feelings and direct evidence of what they may have suffered or seen (their evidence) before the courts….

Though the draft rules deal with both (probably) it is not clear that they make the distinction between ‘views’ and ‘evidence’. There is an abundance of case law on child’s views in proceedings which needs separate treatment.

‘VULNERABLE’ PARTIES AND WITNESSES

Vulnerable individuals: party or witness

‘Vulnerable’ individuals – parties participating in proceedings (r 3A.4) or as a party or witness (r 3A.5) – is determined by whether their involvement ‘is likely to be diminished’; but it is not clear by what. What is the meaning of ‘diminished’ here?

Is my participation ‘diminished’ because I am deaf or dumb: if that is the intent surely a more apt word could have been found? Is my participation diminished because I have no one to look after my children when I have to be in court? If I am scared of courts or of being cross-examined: is that ‘diminished’ or just normal? Am I in a ‘diminished’ category if I do not want to be cross-examined by my abuser?

Before making decisions under rr 3A.4 or 3A.5 the court must consider the views of the individual (party or witness) concerned (r 3A.4(4) or 3A.5(4)):

  • the rules do not say how this consideration of views is to be done
  • no indication is given as to how the a witness who is not a party and has no standing is to make an application

Participation of a party in proceedings: requirement for statutory intervention

Rule 3A.4(1) seeks to imposes on a judge (rr 3A.8 and 3A.9 deal with when) two mandatory requirements, without any statutory basis (though to a degree they may exist already in common law, where the judge is an ordinary thinking person):

  • First to ‘consider whether a party’s participation in the proceedings is likely to be diminished’; and, if so
  • Whether the court considers it is required ‘to make one or more directions in’ r 3A.4(2), so as ‘to assist the party’.

All of this must be read, and considered by FPRC, even if these provisions are lawful – ie can be made within the powers in Courts Act 2003 s 75 and 76 – they must also be looked at in the light of s 75(5) and who is their law readership. Thus, r 3A.4(2) and (3) gives the court three options, if r 3A.4(1) applies:

  • To decide if the party should be assisted by certain ‘measures’ (see Part 5 below); and
  • To decide whether a party should be a protected party (FPR 2010 Part 15; and see below); or
  • To do neither, in which case the court must say why not (r 3A.4(3): see below).

Quality of evidence of a party or witness

Rule 3A.5 widens the nature of diminishment to parties and to witnesses; and applies to the extent to which the ‘quality’ of that evidence ‘is likely to be diminished’. ‘Quality of evidence’ is defined in r 3A.1(2)(a) as applying to ‘completeness, coherence and accuracy’. ‘Coherence’ applies to a witness’s ability to give answers which address the question (r 3A.1(2)(c)); but whether this applies to congenital lack of coherence (ie because of lack of capacity) or coherence related to the court circumstances, is not clear. Rule 3A.5(2) and (3) apply, if r 3A.5(1) applies, in which case the court can direct that the party or witness should be assisted by ‘measures’ (see Part 6 below); or not to take that course, in which case the court must say why not (r 3A.5(3): see below).

Mandatory nature of r 3A.4

Read literally the rules seems to imply that every party and witness must be assessed for ‘diminishment’ and a ruling made under rr 3A.4(3) or 3A.5(3). This is unlikely to be the intention. However, it is not clear how diminishment – ie vulnerability – is to be raised and the issue disposed of – one way or another – is not clear. The terms of rr 3A.4(1), (3) and 3A.5(1), (3) are mandatory upon the court – apparently, as drafted, in each case.

Protected parties

Rule 3A.4(2)(b) raises the critical question of whether a party should be a ‘protected party’ – ie whether they lack capacity in terms of Mental Capacity Act 2005, and thus whether a party should have a litigation friend to conduct proceedings (FPR 2010 r 15.2). FPR 2010 Part 15 is thereby engaged and proceedings will then be governed thereafter by that Part.

DIRECTIONS

Case management directions: a check-list

Rule 3A.6 is a check-list of the ‘particular’ factors the court must take into account when it makes case management directions under rr 3A.3(2), 3A.4(2) or 3A.5(2). As can be seen these range from the searching (eg (a) below) to the banal (eg (d) and (e)). Are these really necessary? If I were a judge I’d be insulted by some factors. If they are needed they should not be in a rule, perhaps in the practice direction.

An example of the absurdity of the rule is that the court must assess ‘Behaviour towards the child’ etc at (r 3A.6(h)) in the following terms:

This is the issue before the court under a part of the draft rule. Surely it need not be spelt out? To the extent that it does, it is not clear how the court is to receive, or to be satisfied upon this evidence. As to members of the ‘family’ of the ‘child, party or witness’: this surely spreads a wide net impossibly wide? To what standard must this ‘behaviour’ be proved?

MEASURES

Measures to protect children, witnesses etc

If a particular court cannot provide the ‘measures’ another suitable court must be found (r 3A.7(2)). ‘Measures’ referred to in the earlier parts of the rules are, as specified in r 3A.7(1):

(a) prevent a party or witness from seeing the other party;

(b) allow a party or witness to participate in hearings and give evidence by live link;

(c) provide for a party or witness to use a device to help communicate;

(d) provide for a party to participate in proceedings with the assistance of an intermediary;

(e) provide for a party or witness to be questioned in court with the assistance of an intermediary ; or

(f) do anything else which is set out in Practice Direction xxx.

Evidence by ‘video link or other means’ is provided for in family proceedings (FPR 2010 r 22.3; PD22A Annex 3; and see CPR 1998 r 32.3). FPR 2010 r 1.4(2)(k) encourages the family courts in the use of ‘technology’. In Re A (A Child) [2012] UKSC 60 the Supreme Court dealt with a suggestion that a vulnerable witness (X) might give evidence through some form of closed material procedure. In rejecting this Lady Hale (and see her§[34] below) pointed out:

[36] … 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…. 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.

Open justice principle

This gives an idea of the extent to which the common law will permit exceptions to the open justice principle (as defined by Toulson LJ in R (ota Guardian News and Media Ltd) v City of Westminster Magistrates’ Court (Article 19 intervening) [2012] EWCA Civ 420, [2012] 3 WLR 1343); but this must be balanced against the extensive range of case law which stresses (as did Re A) the right of the party to court proceedings (1) to know who his/her opponent and witnesses against; and (2) to know who the full case against him/her – eg:

Attorney General v Leveller Magazine Ltd [1979] AC 440

Re A (A Child) (above)

A v British Broadcasting Corporation [2014] UKSC 25

Hearsay evidence (subject to Civil Evidence Act 1995 and FPR 2010 Part 23) will be permissible in most circumstances in family proceedings, and completely in children proceedings (Children (Admissibility of Hearsay Evidence) Order 1993). Evidence in children proceedings is covered (mostly) by privacy rules (Administration of Justice Act 1960 s 12(1) and its jurisprudence). Evidence from vulnerable adults is not protected in the same way (Allan v Clibbery [2002] EWCA Civ 45, [2002] 1 FLR 565; H v L & R and Re A (above)). Legitimate exceptions to OJP must therefore be justified by the rule-maker.

Closed material procedures; referral to Attorney-General

CMPs have been adopted in a narrow range of proceedings, and rejected – alongside special advocates – in most circumstances in family proceedings (but see Re T (Wardship: Impact of Police Intelligence) [2009] EWHC 2440 (Fam), [2010] 1 FLR 1048, McFarlane J). This subject in family proceedings needs extensive further research and substantive law reform. In the meantime, in respect of CMPs in civil proceedings generally Lady Hale said in Re A (above) at [34]:

… [the Supreme Court] has held that there is no power to adopt such a procedure in ordinary civil proceedings: Al Rawi v Security Service (JUSTICE intervening) [2011] UKSC 34[2012] 1 AC 531…. It is arguable that a greater latitude may be allowed in children cases where the child’s welfare is the court’s paramount concern.

Assistance by an ‘intermediary’

The rule is not clear what is meant by ‘assistance of an intermediary’ (§(d)) but this may mean eg via the Attorney-General. The extent to which the courts may refer to Attorney-General for appointment to assist is restricted by Attorney General’s Memorandum of 19 December 2001 (see out eg in Family Court Practice 2015 p 2923). This may need to be seen in the light of the relatively restrictive President’s Practice Guidance of 26 March 2015.

If an advocate is appointed s/he is retained by the Attorney-General and ‘represents no one’ (for an example in children proceedings, see H v L and R (below)).

In H v L and R [2007] 2 FLR 162, an advocate to the court was appointed to examine a vulnerable witness. Appointment may be requested where, for whatever reason, an alleged perpetrator is not represented; but this will be only in restricted circumstances (see Re K and H (above); and see MFPA 1984 s 31G(6) (below)).

Special advocate – Appointment by the AG of a special advocate is a separate procedure (as 26 March 2015 Guidance stresses; and see under FPR 2010 r 21.3).

Matrimonial and Family Proceedings Act 1984 s 31G(6)

MFPA 1984 s 31G(6)[10] provides as follows:

(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.

Funding of representation of parties for cross-examination of a vulnerable witness under this provision – eg by subvention from HMRC where legal aid is not available  – is at present restricted by the Court of Appeal decision in Re K & H (Children) [2015] EWCA Civ 543 (22 May 2015). MFPA 1984 s 31G(6) envisages – per ‘cause to be put’ and the explanation of the meaning of this of Sir James Munby P in Q v Q; Re B; Re C (Private Law: Public Funding) [2014] EWFC 31 – assistance to the court from an ‘intermediary’.

PROCEDURE UNDER PART 3A

When court’s duties are said to apply

‘As soon as possible after the start of proceedings’ the court must consider the factors raised by this Part (3A.8(1)), and at the first case management meeting (eg CMC in public law proceedings and FDA in financial relief proceedings). The duty so to consider continues to the close of proceedings (r 3A.8(2)). If the court makes an own initiative direction the procedures under r 4.3(2)-(6) (own initiative directions) apply (r 3A.10). Reasons for the courts decisions must be given (r 3A.11).

Application for directions

Any application for directions is to be by the FPR 2010 Part 18 procedure (r 3A.9(3)); but this only available to a party to proceedings (FPR 2010 rr 18.1-18.3). Special process will be needed for children and witnesses, if – for example – a party to proceedings does not apply on their behalf (and in many cases, why should they incur the extra expense?). Application can be made at any time in proceedings (r 3.9A(2)).

Rule 3A.9(1) specifies what must be included by child, party or witness in their application – eg:

  • Why is their evidence ‘likely to be diminished’ (r 3.9A(1)(a))
  • Why might a direction ‘improve’ the quality of evidence or participation in proceedings (r 3.9A(1)(c))

 

David Burrows

11 October 2015

ANNEX 1

Family Procedure Rules Committee minutes of 15 June 2015 para 4

VULNERABLE WITNESSES AND CHILDREN WORKING GROUP REPORT

 

  1. A paper from Lord Justice Ryder and accompanying documents were considered.

(i) Introduction

Lord Justice Ryder informed the Committee that members of the sub-group considering the Vulnerable Witnesses and Children Working Group report had sent in detailed submissions relating to the draft rule annexed to the report, for which he was very grateful. These comments had been collated and were before the Committee together with stand-alone contributions from Judge Raeside and Hannah Perry.

Separately, Anne Herd had drafted rules in the form of a draft statutory instrument. These had been drafted so as to be intra vires and in the Committee’s usual drafting style. By virtue of clever drafting it was considered that the draft did not conflict with the overriding objective and did not create any new legal obligation. The judge emphasised the rules had been drafted without MoJ policy or ministerial input. Subject to the Committee’s discussion, it was intended to issue the draft rules for consultation in advance of the summer recess.

Lord Justice Ryder asked the Committee to consider three questions: Did the draft rules meet the Committee’s broad policy objective? Were there any drafting points that remain outstanding to be dealt with before going out to consultation? Were there any specific questions that should be posed on consultation?

The Chair added that he and Lord Justice Ryder had seen a previous version of the draft rules and comments made on them appeared to have been accommodated in the version before the Committee.

(ii) Comments on draft rules

Rule 3B.2 (Court’s duty to consider how a child can participate in proceedings)

In paragraph (2)(b) the Committee agreed with Mrs Justice Pauffley’s suggestion that “communicate with” would be less formal and more appropriate than “address”.

Rule 3B.10 (Recording of directions on court order)

Mrs Justice Theis noted that under draft rules 3B.2, 3B.3 and 3B.4 the court must consider whether it is necessary to make directions. She thought, therefore, that rule 3B.10 should include a requirement, where directions were not given, to record in the order that the court had considered the matter and that no directions were needed.

District Judge Darbyshire raised no objection to the suggestion but expressed concerns that giving reasons in the order as to why no directions were being made would extend the length of hearings. Experience has shown that completing Child Arrangement Programme (CAP) orders is time consuming as the forms of order are lengthy and repetitive.  Judge Raeside echoed those concerns and said it would have an effect on listing as cases would need to be listed for longer.

The Chair sympathised with the point raised and would be keen to remove any repetitive elements from forms of court order, but he was emphatic that where reasons were given it was essential for them to be recorded in the order. In the absence of a transcript, reasons would be lost. The problem was particularly acute in cases where both parties were litigants in person. At future hearings the court needed to know what had happened previously. Orders should also record where a measure was needed but resources were not available to provide it.

Lord Justice Ryder confirmed that in the Court of Appeal there was difficulty, in particular, in getting transcripts of private law proceedings. Without a record in the court order, it was not possible to know what had happened in the court below with the result of a risk of applications for permission to appeal being granted that might otherwise not be. Mrs Justice Pauffley added that it was also useful at first instance for the court to refresh its memory by reference to previous court orders.

It was confirmed that there was not a repeated obligation to consider whether directions were necessary but a continuous one.

The Chair concluded that in the absence of effective IT support for the courts it was necessary that a full record be included in court orders.

The Committee agreed that the draft rule be amended as suggested by Mrs Justice Theis.

Rule 3B.1 (Application of this Part and interpretation)

In paragraph (1)(a) Judge Raeside questioned the term “a child is involved”. She wondered if the term “child who is the subject of proceedings” should be used so as to provide a clear distinction between a child who is subject of proceedings and a child as a vulnerable witness.

Members gave examples of cases where siblings of the child who was the subject of proceedings were involved and needed their voice heard.

Lord Justice Ryder said this was a high level rule intended to encompass all children whether as a party, the subject of proceedings, a witness or with an involvement in some other way. This would allow the court to consider whether measures were necessary for any child involved. A supporting practice direction might give detail.

Judge Raeside said as drafted a child could be said to be involved in a very wide range of proceedings, including financial remedy, domestic violence and occupation orders proceedings. District Judge Darbyshire added that any child in a family would be affected by virtually any order made in the family court.

There was discussion of a number of scenarios, including whether the court would need to hear the voice of the child before making an order in a case where parents lodged a consent application for an order for the payment of school fees but where the child did not want to go to that school. It was thought in this scenario schooling would be a specific issue under section 8 Children Act 1989.

District Judge Carr questioned what would trigger the process of getting the child’s views.

The Chair said in private law children cases and financial cases, there was an assumption that in a dispute between the two parents, their child’s interests were being protected. That might or might not be the case. The overarching principle was that where a child would be affected the procedures in the draft rules should be applicable.

Lord Justice Ryder said that forthcoming decisions of the Court of Appeal might cause a fundamental re-appraisal of what constitutes participation in proceedings. One of the cases before the Court of Appeal related to recognition of an order abroad and the Chair said this reflected the problem he had raised at a previous meeting about a reluctance in Germany to enforce orders made in this jurisdiction because our procedures were considered defective.

The Chair said that if the rule were drafted so as to just apply to a child who was the subject of proceedings or a witness or were drafted too precisely, the rules would need to be amended subsequently when different circumstances arose. His preference would therefore be for the rule to be drafted in general terms.

The Chair questioned the definition of “child” at paragraph (2)(b). It was explained that the definition extended for this Part of the Rules the general definition in rule 2.3(1) that a child means a person under the age of 18 years who is the subject of proceedings.

District Judge Carr wondered if there was a better word than “involved”. Lord Justice Ryder said it would be considered.

Rule 3B.2 (Court’s duty to consider how a child can participate in proceedings)

Mrs Justice Theis suggested paragraph (1) be broken down in to two parts setting out the principle (i) as to whether a child should participate and then (ii) if so, how, as this might assist the court’s thought process. Lord Justice Ryder supported the suggestion of a two-part provision.

Mrs Justice Theis also thought the term “The directions are case management directions and directions” in this rule and in others a bit clumsy.

Lord Justice Ryder explained that the drafting was to meet the case management obligation in the overriding objective.

It was agreed that the signposts in the draft rules and the cross-references to practice directions were helpful and it was confirmed that these could be retained in the eventual rules.

Judge Raeside wondered if the situation where a child wanted to hear closing submissions would be covered by the rule as drafted. The judge also asked whether having “information about the court proceedings” would include a child being informed about the outcome of the proceedings.

It was agreed that (i) paragraph (2)(a) could be expanded to add “or to attend a hearing or part of it” and (ii) a provision could be added to the effect that the court may give a direction about informing the child of the outcome of proceedings in an appropriate way, in light of a child’s age and understanding.

Mike Hinchliffe noted that rule 12.14 (Attendance at hearings) already made provision about the attendance of a child who is the subject of proceedings. Lord Justice Ryder said this rule would be looked at.

Mike Hinchliffe noted that draft rule 3B.2(2)(e) provided for directions to be given that a child should give evidence in accordance with a practice direction whereas the equivalent provision for vulnerable witnesses was included in the draft rules. He suggested there be consistency. This suggestion was approved.

Rule 3B.8 (Application for directions)

Judge Raeside said her understanding was that the court would give directions on its own initiative rather than requiring an application. Lord Justice Ryder said the court could always make directions of its own initiative. The purpose of this draft rule was to make clear that any party or a child can apply.

It was agreed to amend “The application for directions” to “Any application for directions”.

Rule 3B.5 (What the court must have regard to)

Sub-paragraph (g): Marie Brock drew members’ attention to the omission of the reference to employment circumstances which appears in the equivalent rule in the Criminal Procedure Rules. Anne Herd said it had been omitted only because it was not included in the draft rule in the Vulnerable Witnesses and Children Working Group report. It was unclear to members whether its inclusion in the Criminal Procedure Rules was as a general welfare point that the court should have regard to or because a party or witness’s employment circumstances might affect their ability to attend court.

Richard Burton noted that the Criminal Procedure Rules also required the court to consider any political opinions of a witness when determining whether evidence will be diminished.

It was agreed that the draft rule should not be changed but that these omissions might form a consultation question and the Vulnerable Witnesses and Children Working Group could be asked for their reasons for not including these provisions from the Criminal Procedure Rules.

Sub-paragraph (b): It was questioned whether “the nature and extent of the information before the court”, which had been taken from the Criminal Procedure Rules, added anything of use in the context of family proceedings.

It was concluded the provision might be helpful in forced marriage or FGM protection order proceedings and should be retained.

Sub-paragraph (a)(iii): Jane Harris noted the impact it would have on judges deciding whether to give directions, given the huge number of people that might fall within the category of “undergoing medical treatment”. In some cases the medical treatment might not affect the quality of a person’s evidence but the person concerned might claim that it does.

Sub-paragraph (a)(i): “intelligence and social functioning” should read “intelligence or social functioning”.

Rule 3B.3 (Court’s duty to consider how a party can participate in proceedings)

The Committee agreed with Will Tyler’s suggestion to insert the words “if so” in paragraph (1) (and in rule 3B.4(1)) after the words “is likely to be diminished and”.

Rule 3B.4 (The court’s duty to consider how a party or a witness can give evidence)

Will Tyler questioned whether this rule could apply to children as well as to adult vulnerable witnesses. Lord Justice Ryder said the rule did not overtly apply to children, but it did not exclude them.

Will Tyler thought it would be preferable to split rules relating to children on participation and giving evidence from rules relating to adults on participation and giving of evidence. This approach was supported.

Rule 3B.6 (Measures)

Sub-paragraph (1)(c): Paul Stewart questioned what “a device to help communicate” might cover. It was agreed that this was a general term that would be able to include any future methods of communication developed by technology and it referred to a device used by a party or witness rather than a device provided by the court.

Sub-paragraph (1)(e): Judge Raeside wondered whether the provision should include a party or witness being questioned in court by the judge. Lord Justice Ryder was hesitant about specifically including a judge lest it suggested an obligation. He said, however, that he would look at the point with reference to section 31G(6) of the Matrimonial and Family Proceedings Act 1984 which provides in certain circumstances for the court to put, or cause to be put, questions to a witness.

Sub-paragraphs (1)(d) and (e): The Committee agreed with Mrs Justice Pauffley’s suggestion to substitute “with the assistance of” for “through”.

(iii) Other points raised

Likely to be diminished

Will Tyler thought the term “likely to be diminished” rather inelegant. He appreciated the need for generality but considered the phrase was not helpful.

Vulnerable witnesses

Judge Raeside thought the term needed to be defined and drew attention to the suggested definition in her paper. Richard Burton confirmed that the Youth Justice and Criminal Evidence Act 1999 defined a witness eligible for assistance by reference to the definition of mental disorder in the Mental Health Act 1983.

Marie Brock noted that the Vulnerable Witnesses and Children Working Group report recommended the use of the term ‘vulnerable and intimidated witnesses’.

Mrs Justice Pauffley was not keen on using the term “intimidated” as it would give oxygen to the intimidator. The Chair pointed out that draft rule 3B.5(h) covered this point and was broader than intimidation.

Views of the child

Jane Harris expressed concerns about raising expectations of children but having no mechanism to deliver, for example in private law proceedings where the parents were in agreement but the child was not. Mrs Justice Pauffley said in her experience where a child wanted to communicate they found a way, for example through a head teacher.

The Chair said in term of expectations this was an issue that could not be ignored. If a child wrote to the court, the court must engage with the child. Leaving aside resources, which fell on the judicial and court process, he did not think this would create any expectations that were not already there.

Jane Harris also raised the case of the small but significant number of children who are also carers.

The Chair said these concerns would be largely addressed by splitting the relevant rule into two parts.

United Nations Convention on the Rights of the Child

Hannah Perry referred to article 12 of the United Nations Convention on the Rights of the Child and the right of a child to be heard in proceedings on matters affecting the child. This was not limited to children with party status or who were the subject of proceedings. The Chair recommended that the judgment in ZH (Tanzania) v. Secretary of State for the Home Department [2011] UKSC4 be used as a useful cross-check. The Committee would not want to be exposed to criticism for falling short of what children needed.

Location of Rules in the FPR

Michael Horton suggested consulting on where in the FPR these rules should be placed as they did not necessarily fit after Part 3 which related to non-court dispute resolution. The Chair, however, thought the rules should be adjacent to the Part containing the court’s powers of case management (Part 4) rather than tagged on at the end.

Pre-recorded video evidence

Marie Brock made reference to pre-recorded video evidence. Lord Justice Ryder said that use of this facility might not be possible in all cases but drew attention to draft rule 3B.6(1)(f) which provided for measures to be set out in a practice direction and 3B.6(2) and (3) which enabled the court, where a measure was not available, to direct that it will sit at a location where the measure was available.

Joe Murphy informed the Committee that results of the piloting of pre-recorded video evidence in criminal courts were awaited and advised it might be premature to include such provision in draft rules for family proceedings.

Lord Justice Ryder said the ministry could respond to the consultation in those terms. A practice direction could provide for a phased introduction of this measure, although Joe Murphy expressed concerns about raising expectations in the consultation that it might not be possible to meet.

Overriding objective

Judge Raeside suggested that FPR Part 1 (Overriding Objective) be adjusted so that the duty to deal with cases justly and fairly included reflecting the participation and involvement of children and vulnerable witnesses.

Lord Justice Ryder thought that the way the proposed rules had been drafted obviated the need to delve into the overriding objective. However, he considered it entirely reasonable to raise the issue on consultation.

The Chair observed that, although the overriding objective referred to the court having regard to any welfare issues involved, there was no actual mention of children. He suggested a quick proposed amendment to the overriding objective be drafted before consultation.

Next Steps

Lord Justice Ryder summarised what the Committee had agreed:

  • Those drafting changes that had been suggested and agreed be made prior to consultation.
  • A proposed amendment to the overriding objective be drafted prior to consultation
  • A revised draft of the rules be circulated to members within one week

In the meantime, a consultation paper was to be drafted incorporating the questions the Committee had identified. The paper would make clear that the proposals had been developed without the views of ministers or HMCTS/MoJ. John Hall said it might be possible for an addendum to be included setting out ministers’ initial thoughts.

A consultation period of two full months was agreed.

ANNEX 2

Courts Act 2003 ss 75-76 (as amended, mostly, by Crime and Courts Act 2013 alongside introduction of the family court)

75 Family Procedure Rules

(1)  There are to be rules of court (to be called “Family Procedure Rules”) governing the practice and procedure to be followed in family proceedings.

(2) Family Procedure Rules are to be made by a committee known as the Family Procedure Rule Committee.

(3) “Family proceedings” means—

(a) proceedings in the family court, and

(a) proceedings in the Family Division of the High Court which are business assigned, by or under section 61 of (and Schedule 1to) the Senior Courts Act 198, to that Division of the High Court and no other.

(4)The power to make Family Procedure Rules includes power to make different provision for different areas, including different provision—

(a)for a specified court or description of courts, or

(b)for specified descriptions of proceedings or a specified jurisdiction.

(5)Any power to make Family Procedure Rules is to be exercised with a view to securing that—

(a)the family justice system is accessible, fair and efficient, and

(b)the rules are both simple and simply expressed.

76 Further provision about scope of Family Procedure Rules

(1)Family Procedure Rules may not be made in respect of matters which may be dealt with in probate rules made under section 127 of the 1981 Act.

(2) Family Procedure Rules may–

(a) modify or exclude the application of any provision of the Crime and Courts Act 2013 County Courts Act 1984;

(aa) provide, subject to any provision that may be made in rules under section 31O(1) of the Matrimonial and Family Proceedings Act 1984, for any functions of a court in family proceedings to be carried out by officers or other staff of the court, and

(2A)Family Procedure Rules may, for the purposes of the law relating to contempt of court, authorise the publication in such circumstances as may be specified of information relating to family proceedings held in private.

(3)Family Procedure Rules may modify the rules of evidence as they apply to family proceedings in any court within the scope of the rules.

(4)Family Procedure Rules may apply any rules of court (including in particular Civil Procedure Rules) which relate to—

(a)courts which are outside the scope of Family Procedure Rules, or

(b)proceedings other than family proceedings.

(5)Any rules of court, not made by the Family Procedure Rule Committee, which apply to proceedings of a particular kind in a court within the scope of Family Procedure Rules may be applied by Family Procedure Rules to family proceedings in such a court.

(6)In subsections (4) and (5) “rules of court” includes any provision governing the practice and procedure of a court which is made by or under an enactment.

(7)Where Family Procedure Rules may be made by applying other rules, the other rules may be applied—

(a)to any extent,

(b)with or without modification, and

(c)as amended from time to time.

(8)Family Procedure Rules may, instead of providing for any matter, refer to provision made or to be made about that matter by directions.

[1] See introduction of the scheme by Ryder LJ in the minutes of FPRC meeting of 15 June 2015 at Annex 1 below

[2] I am sorry to be over-personal about this by the attitude of Ryder LJ to statutory rights can be deduced from Re JG (a child by her guardian) v Legal Services Commission and ors [2013] EWHC 804 (Admin), Ryder J at first instance, a case which might be thought to be overly political; and which was roundly overturned by the Court of Appeal in JG v Lord Chancellor and ors [2014] EWCA Civ 656

[3] Twelfth view from Sir James Munby P’s chambers at ###. These notes tend to be the starting point of a variety of family law reform initiatives. It represents a truly idiosyncratic means of development of family law administration without any real control or means of access for family law to democratic and philosophical ideas.

[4] https://dbfamilylaw.wordpress.com/2014/10/05/consultation-on-children-and-vulnerable-witnesses-court-proceedings/

[5] https://consult.justice.gov.uk/digital-communications/draft-amendments-to-family-procedure-rules/supporting_documents/annexachildrenvulnerablewitnessesfprcdraftrule.pdf

[6] Ryder LJ does not say of what the draft was intra vires.

[7] To follow

[8] See eg very extensive discussion of a case on this point in [2015] Family Law, where the common law seemed well-able to cope with the problem.

[9] It is interesting to note in the response to the point that FPRC very much leave the drafting of the rules to Ryder LJ

[10] The lay reader will not find this easily: MFPA 1984 on the Government legislation website has not yet been amended – over two years after amendment

C-DAY – 17: INTERMEDIARIES FOR A VULNERABLE MOTHER; AND A TEMPLATE JUDGMENT

Composite threshold document

My fellow family law blogger, @suesspiciousminds, wrote about OCC v B & T and the judgment of HHJ Owens at http://suesspiciousminds.com/2015/06/20/composite-threshold-a-living-example/. OCC is a care case (for the Family Court judgement see at http://www.bailii.org/ew/cases/EWFC/OJ/2015/B73.html  ); and is particularly helpful as an example of a template judgment (introduction; facts; consideration of deaf awareness; consideration of the welfare check-list ‘headings’ (Children Act 1989 s 1(3)) and of other law applied to the facts; and the judge’s decision).

To make the judgment more helpful still, says @suesspiciousminds

… the judge includes a suitably anonymised version of the threshold [ie Children Act 1989 s 31(2)] at the end of the judgment. I commend that, I think it makes far more sense when considering what decisions was made by a court to see the factual background set out.  I really like it. The version provided is a composite document, set out in tabular form (and again, I like the way that this is produced, it is really helpful in terms of seeing what the allegation is, where the evidence is for it and what the parents say).

The case concerned a mother who is deaf. It sets out a little of her particular needs as a mother; and how those needs were dealt with in court.

Existing reported cases and the draft amendment rules

It will be instructive, over the period of the ‘vulnerable’ individuals consultation, to consider a few reported cases – such as OCC; Re A (Sexual Abuse: Disclosure) [2012] UKSC 60, [2013] 1 FLR 948; Re M (A Child) [2015] EWFC 71 (04 August 2015), Sir James Munby P – and to look at how they were dealt with under case management law on vulnerable witnesses at the time of the judgment. The progress of a hearing, so far as it can be deduced from the judgment, can then be reviewed in the light of the draft regulations – Family Procedure Rules 2010 ‘Part 3A’ – if they are adopted into FPR 2010 by Family Procedure Rules Committee.

Further thoughts will follow…

NO COURT FUNDING OF ADVOCATE TO HELP THE JUDGE

Public funding of advocate to the court: not permitted in children proceedings:

In Re K & H (Children) [2015] EWCA Civ 543 (http://www.bailii.org/ew/cases/EWCA/Civ/2015/543.html) the Court of Appeal comprehensively allowed the Lord Chancellor’s appeal from Judge Bellamy’s attempt to provide limited funding to assist the court in cross-examination of a 17 year old alleged victim (Yvonne) of an applicant father’s alleged abuse. Thus in March 2015 it was possible to say that the score in the then legal aid cases in the High Court and Court of Appeal was 4-1 against the Lord Chancellor (https://dbfamilylaw.wordpress.com/2015/03/20/legal-aid-applicants-4-lord-chancellor-1/ ). With the reversal of Re K & H that score is now 3-2: a less optimistic margin for the laid applicants.

Meanwhile, in a no-score contest the Court of Appeal explained the absurdly arcane means by which legal aid may be applied for to deal with representation for committal applications in civil (including family proceedings) (Brown v London Borough of Haringey [2015] EWCA Civ 483: see separate blog).

It must be said that family law, when it comes to consideration of witnesses such as Yvonne, is in a primitive state compared with criminal law and procedure (as touched on below; and see discussion of ‘vulnerable witness’ procedural reform: https://dbfamilylaw.wordpress.com/2014/10/05/consultation-on-children-and-vulnerable-witnesses-court-proceedings/ ). Further, it remains the case that the Court of Appeal did not consider Re K & H in the light of any limited help which the Attorney-General may be able to offer; and that they could do no more – perhaps inevitably – than to urge ‘statutory provision’ for appointment of an advocate to avoid perceived breach of the European Convention 1950 in rare cases where this was demanded.

Victim, child or other vulnerable witnesses: cross-examination in family proceedings

In Re K & H a strong Court of Appeal (Lord Dyson MR, who gave the only judgment, with Black and McFarlane LJJ, who agreed with him) reversed a decision on the funding of an advocate for the court to cross-examine a child witness and alleged victim of sex abuse (‘Yvonne’) by the father in children proceedings. The family courts background to this was that in Q v Q; Re B; Re C (Private Law: Public Funding) [2014] EWFC 31 Sir James Munby P asserted the possibility that a judge might insist that HM Courts and Tribunal Service (HMCTS) could be required by the court to pay for assistance to the court where a perpetrator (alleged or already found guilty) was to cross-examine an [alleged] victim. An April 2014 amendment to Matrimonial and Family Proceedings Act 1984 (MFPA 1984), as part of the setting up of the Family Court, had provided, at s 31G(6):

(6) Where in any proceedings in the family court it appears to the court that any [unrepresented] party is unable to … cross-examine a witness effectively, the court is to-…

(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.

In Q v Q Sir James held that the words ‘cause to be put’ means questioning other than by the judge and explained his reasoning as follows:

[76] …. [what], in section 31G(6), do the words “cause to be put” mean? When section 31G(6) provides that in certain circumstances “the court is to … put” questions, that must mean questioning by the judge or magistrate. In some – probably many – cases that will be entirely unproblematic. But in cases where the issues are as grave and forensically challenging as in Re B and Re C, questioning by the judge may not be appropriate or, indeed, sufficient to ensure compliance with Articles 6 and 8. There is, in my judgment, very considerable force in what Roderic Wood J [said in Re H v L and R (see below)].

[77] The words “cause to be put” must, in contrast, contemplate questioning by someone other than the judge. Now that someone else might be an advocate whom the court has managed to persuade to act pro bono. It might be the guardian, if there is one, or the guardian’s advocate. But there are… great difficulties in expecting the guardian or the guardian’s advocate to undertake this role….

So, said Sir James, what can the court do if the cross-examining party is not legally represented (eg because they are financially ineligible (and cannot afford representation) or do not want representation)? In the criminal courts cross-examination of vulnerable witnesses may be limited (Youth Justice and Criminal Evidence Act 1999 s 22; and see Criminal Procedure Rules 2014 rr 29.8-29.13, especially r 29.9; considered in Safety measures: vulnerable witnesses, Simon Heaney in Family Law Journal at 7). The family court does not provide such protection for children or other such vulnerable parties or witnesses. Sir James therefore concluded:

[79] …. if the criteria in section 31G(6) are satisfied, and if the judge is satisfied that the essential requirements of a fair trial as required by FPR 1.1 and Articles 6 and 8 cannot otherwise be met, the effect of the words “cause to be put” in section 31G(6) is, in my judgment, to enable the judge to direct that appropriate representation is to be provided by – at the expense of – the court, that is, at the expense of HMCTS.

This conclusion was rejected by the Court of Appeal in Re K & H (at [45]) as explained below.

Facts underlying the appeal

The facts of Re K & H are that in children proceedings there were three children of Jane (none of the following names are theirs):  Yvonne (now aged 17), Kerry (now aged 6) and Holly (now aged 4). Kerry and Holly are full siblings, whilst Yvonne is the mother’s child by an earlier relationship. In July 2013, she said that when she was 15 she was sexually abused by the father of Kerry and Holly (Michael). Michael has always denied the allegation. The proceedings before Judge Bellamy concerned what contact arrangements or orders should be made between Kerry and Holly and their father.

The Court of Appeal explained the judge’s findings as follows:

[2] HH Judge Bellamy decided (rightly) that, before the court could consider the father’s future contact with K and H, it was important to establish whether Y’s allegation was true. A fact finding hearing was listed to begin on 14 January 2015 at which he directed that Y should give oral evidence. The mother was legally aided. Although he had been legally represented from time to time, by the time of the decision with which this appeal is concerned, the father was a litigant in person. He did not apply for legal aid: he appeared not to be eligible for legal aid as he appeared not to satisfy the “means test” set out in the Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013.

The judge therefore held as follows:

  • it was not appropriate for the father to cross-examine Yvonne (in fact he did not wish to do so);
  • it was not appropriate for him (the judge) to put questions to Y to test her allegation against the father;
  • the court should arrange for a legal representative to be appointed to cross-examine Y on behalf of the father; and
  • the costs of the legal representative should be borne by Her Majesty’s Court and Tribunal Service (“HMCTS”).

In his conclusions Judge Bellamy had relied on some of the comments of Sir James Munby P in Q v Q (see refs in [16] of Re K & H on appeal; and as explained at eg [23]). The Court of Appeal centred its criticism of Judge Bellamy’s findings ([22]-[45]) and on a review of what Sir James Munby P said in Q v Q (there was no decision in Q v Q). The Master of the Rolls specifically rejected (at [45]) what Sir James said in Q v Q at [79] above.

The court therefore allowed the appeal on the Lord Chancellor’s first ground of appeal ([63]), namely (see [21]): ‘(1) The court has no power to require the Lord Chancellor (via HMCTS or otherwise) to provide funding for legal representation outside the LASPO scheme’; and further that European Convention 1950 Art 6(1) and a right to a fair trial does not generally permit judges any form of exception in terms of funding.

Circumvention of a statutory code

The statutory basis of the father’s argument derived from Courts Act 2003 s 1(1) (that the Lord Chancellor has a ‘duty to ensure that there is an efficient and effective system to support the carrying on of the business of… the family court… and that appropriate services are provided for those courts’); and, he said, that Human Rights Act 1998 s 3 requires the court to interpret s 1(1) as ‘obliging’ the Lord Chancellor to provide funding where this is necessary ‘to prevent a breach of the Convention’. (This is an argument which may work for exceptional case determination funding under LASPO s 10(1): see eg R (ota Gudanaviciene & Ors) v The Director of Legal Aid Casework & Ors [2014] EWCA Civ 1622; but it is subject also to means assessment.)

Lord Dyson rejected this argument (paras [27]-[31]) outside the statutory legal aid scheme. For a judge to order funding in this way amounts, he said, ‘to judicial legislation’ ([31]). Reference to a ‘duty’ under s 1(1) ‘cannot be used to circumvent a clear and detailed statutory code’ (para [27]; Credit Suisse v Waltham Forest LBC [1997] QB 362) as in the case of the scheme under LASPOA; and ‘nothing less than clear, express and unambiguous language is effective to levy a tax. Scarcely less important is the requirement of clear statutory authority for public expenditure’ per Lord Bridge in Holden & Co v CPS (No 2) [1994] 1 AC at 33C; and see para [28]).

In words which will doubtless be quoted by Ministry of Justice where any creative funding is proposed by a prospective applicant, and where a party is not financially eligible, Lord Dyson concluded of the scheme under LASPOA:

[31] It is a detailed scheme. I do not consider that it is possible to interpret either section 1 of the 2003 Act or section 31G(6) of the 1984 Act as giving the court the power to require the Lord Chancellor to provide funding for legal representation in circumstances where such funding is not available under a scheme as detailed and comprehensive as that which has been set up under LASPO. The court must respect the boundaries drawn by Parliament for public funding of legal representation. In my view, the interpretation adopted by the judge is impermissible: it amounts to judicial legislation.

Thus, he said, of any power the court might have to compel the Lord Chancellor to fund proceedings, Courts Act 2003 s 1(1) cannot ‘give the court the power to require the Lord Chancellor to incur public expenditure in payment for legal representation in civil and family proceedings’ ([36]).

European Convention 1950 Art 6

Lord Dyson introduced his consideration of any rights which the father might have under European Convention 1950 as follows:

[47] … It is not in dispute that the father has the right under article 6 to a fair hearing. Moreover, since the date of the hearing, the judge has joined K and H as parties and has appointed a children’s guardian. The children also have rights under article 6. Nor is it disputed that the father and the children have rights under article 8 of the Convention which can only be vindicated by their having an effective and correct determination of the issue of whether Y’s allegations are true. This is because, as the judge recognised, a finding that the father abused Y would be relevant, inter alia, in assessing the risk of harm that he poses to K and H and his capacity to meet their needs.

However he qualified this immediately by reference to the relative narrowness of the law in relation to grant to guarantee Convention rights (especially Art 6), considered most recently in R (ota Gudanaviciene & Ors) v The Director of Legal Aid Casework & Ors [2014] EWCA Civ 1622 at [46] ([49] and [51]; and see http://www.familylaw.co.uk/news_and_comment/gudanaviciene-legal-aid-guidance-not-compatible-with-a-right-to-a-fair-trial#.VWCEU0-qqko ). Before a court could consider whether Art 6 might be breached it must consider its other case management options ([52]), such as:

  • A direction that the party cross-examines only through a legal representative, perhaps subject to findings (as for the father in Re K & H as to his ability to pay for representation);
  • That Yvonne could, in reality, be cross-examined by the judge him/herself;
  • Yvonne could be cross-examined by a ‘justices’ clerk’; or
  • A guardian be appointed for the children and they (it must be assumed) could instruct an advocate to cross-examine.

(The court does not seem to have reflected on the relative cost of (4) as compared with what Judge Bellamy had ordered, and which was the subject of the appeal.)

So what of (2): cross-examination of a witness by the judge? The court was sympathetic as to a judge’s difficulties; but concluded (at [57]) by quoting Lady Hale in Re W (Children) (Abuse: Oral Evidence) [2010] UKSC 12, [2010] 1 FLR 1485 at [28] that the important point was that examination of a child be ‘fair’, however it is done – which seems rather to beg the question in issue on the appeal, but not to provide a clear answer as to the meaning of s 31G(6) and how it can be dealt with.

Conclusion: in extremis there is no answer; but what of the Attorney-General?

So what is the judge to do? First the judge must consider the case management options in para [52] (summarised above). If public funding, including exceptional case determination funding (LASPOA s 10) is not available (eg because of the means of the party concerned), and a party cannot be compelled to fund the representation of an advocate to cross-examine, the Court of Appeal in Re K & H can offer no solution.

In extremis, the court accepts the ‘concern expressed by Sir James Munby P in Q v Q (above); but can only suggest fresh statutory provision (in the absence, presumably of the courts or common law being able to assist):

[62] … In order to avoid the risk of a breach of the Convention, consideration should be given to the enactment of a statutory provision for (i) the appointment of a legal representative to conduct the cross-examination and (ii) the payment out of central funds of such sums as appear to be reasonably necessary to cover the cost of the legal representative…

And fresh ‘statutory provision’? If it costs money – any money – Lord Chancellors since 2010 have not been provident. It is likely that the Court’s urgings will be ignored, like other judicial urgings on legal aid over the past three years.

This still leaves the Attorney-General (as directed by Roderic Wood J in H v L and R [2006] EWHC 3099 (Fam) [2007] 2 FLR 162). That case and the role of the Attorney in assisting the court was not considered here; but that role (Attorney-General’s Memorandum of 19 December 2001; set out in Family Court Practice at p 2869; http://www.iclr.co.uk/family-legal-aid-funding-january-2015/ ) must be considered for the full tattered picture of public funding to emerge.

CLARITY: THE VULNERABLE AND LEGAL AID LAW

Family courts: the vulnerable and the legal aid swamp

Two things have struck me over the past few months, as I write about legal aid and those who are – and mostly are not – entitled to it: first that the very lack of clarity of the legislation which comprises the 2013 scheme[1] denies a right to a fair trial; and that the people it should protect – the vulnerable witness; the victim of domestic violence; the parent who struggles with English; and the forgotten many who struggle with basic literacy as adults – are frequently overlooked.

Clarity

If clarity be the food of law; play on

Give me excess of it, that, with such clarity,

The appetite for obfuscation shall thus die….

with apologies to William Shakespeare (Tempest 1:1 l1)

I have written before of the need for clarity in law (see eg https://dbfamilylaw.wordpress.com/2014/04/18/a-luther-for-family-law/). The weight of statutory provision which confronts the applicant – who must in theory understand it to pass the threshold of court application – is truly astonishing. I say ‘astonishing’ without exaggeration. I read the new Act (the bits I needed to) and all the delegated legislation as it came out. Most was new to me; but some – especially the ‘merits criteria’ and means testing rules – were much the same as before.

But remember: I was broadly familiar with some of the detail already; I have 40 years behind me as a lawyer; and have studied legal aid law in a more or less academic way for 25 of those years. I am literally in another legal class from the vast majority of readers; especially the domestic violence victims and vulnerable people we’ll be looking at shortly. And yet at times I struggled: finding how merits fitted with legal help (or did not); where domestic violence was defined; and whether certain types of work would attract civil legal services – all were things which were not worked out easily.

If clarity is food for the legal aid legislation draftsman (to return to my mangling of the Tempest above) – as by definition it should be – then I fear he is not well-fed. Does not his appetite still live nourished in the swamps of 2012/3 delegated legislation? The tangled roots legal aid legislation are eloquent of the opposite of clarity (as the unspoken sub-text of the cases below well show). So, my friends, here is primary legislation; there, thicker and more verdant, schedules to that legislation. Next is the forest of regulations (essential to define merit of a case and means of an applicant) and growths of Lord Chancellor’s Guidance to case workers. All is obfusc on the draftspersons vigorous mill.

Obfusc and a fair trial: a ground for judicial review?

I mention this now, since it seemed to me, as I read the recent legal aid cases of Gudanaviciene[2] and RofW,[3]that one of the most glaring grounds for judicial review – which many lawyers might not think of, instinctively – was that a fair trial was denied because of the simple fact that an applicant couldn’t get to court at all. He or she could not tell easily whether there was a possibility of receiving legal aid. This was the first step to take before even a lawyer would help to issue process. Without that first step: no claim. It is like denying medical treatment (eg for cancer) to anyone whose lungs, breasts or prostate (say) – on the outside – look OK. It takes a cancer specialist to read what is going on under the skin.

Not only must the battered spouse or partner cope with the violence which creates the need for help. The list of what must be penetrated in legal terms to define legal aid borders on the Kafkaesque: First is the variety of schedule and regulations considered by RofW (see below). Next is the law which defines means (eg Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013) and the merit of her case (eg Civil Legal Aid (Merits Criteria) Regulations 2013) – the content of which is far more intimidating than the titles of these regulations (not considered in RofW, which is a mystery). In logic the legislator should assume that all this must be considered before a victim can consult a lawyer (just as I must believe I have a medical complain before I go to a doctor). Rank complexity – or basic lack of clarity – should surely be a ground for declaring legislation like this unlawful?

And if all this fails – and when you, dear applicant, have understood it all – you can check out whether you have a chance of a exceptional case determination; and that is another substantial arena where the fog of law unclarity needs simplification (see Gudanaviciene (above)). For that you’ll need an understanding of human rights jurisprudence which is probably beyond the knowledge of most practising family lawyers; an understanding of why the procedure is so complex in your particular case; and then it’s easy… Seriously, it’s a substantial area, to which I shall retun.

The vulnerable, victims, and allegations of abuse

And, finally, back to victims of domestic violence, children as witnesses alleging abuse, and the variety of people – witnesses, parties etc – who together in a civilised society in a family breakdown system[4] merit protection in and around the court process. The Courts and Tribunals Judiciary (see below) speak of them collectively as ‘vulnerable witnesses’ and children. Where do they fit in the legal aid palimpsest?

Summer’s blaze of family court ‘consultations’ included, amongst three consultation exercises, that of the Vulnerable Witness Working Group: see ‘Interim Report of the Children and Vulnerable Witnesses Working Group – 31 July 2014’ (Courts and Tribunals Judiciary: http://www.judiciary.gov.uk/publications/president-of-the-family-divisions-consultation-interim-report-of-the-children-and-vulnerable-witnesses-working-group-31st-july-2014/ ). An aim of this group was to propose ‘a new mandatory (sic) rule… supplemented by practice directions (PD) and guidance approved by the President’). My response was submitted on 5 October 2014 (https://dbfamilylaw.wordpress.com/2014/10/05/consultation-on-children-and-vulnerable-witnesses-court-proceedings/ ).

One rule (whenever is a rule not ‘mandatory’?) is plainly inadequate. So too is the speed at which the group is working. (At least it should have told us by now that its canvas must be much wider than its ‘interim report’ suggested.) Re K and H[5] shows how important is but one aspect of this substantial subject: of how to protect children as vulnerable witnesses. Parties will be victims of domestic violence, and thus often vulnerable. Others, such as Ms Gudanaviciene, the non-English speaking proposed deportee and mother of a small child (her lack even of English to wade through our law justified an EDC said the Court of Appeal) need protection. The ‘vulnerable witness’ aspect is but one which links the strands of this, still further, aspect of unmet legal need.

Let us assume there really is no mare cash (well not much, save for a broader brush approach to ECD) in the Ministry of Justice legal aid budget, much can still be done to improve the family law system. Clarity of law (once done that should save money: takes less time to read, to understand and to explain to a judge) is one thing. The other is to provide a more rational system – case management, funding and attendance in court – for those who the family court system must protect.

[1] Under Legal Aid Sentencing and Punishment of Offenders Act 2012

[2] R (ota Gudanaviciene & Ors) v The Director of Legal Aid Casework & Ors [2014] EWCA Civ 1622 (Lord Chancellors Guidance to case workers partially unlawful, and ECD under LASPOA s 10(3) and its meaning explained).

[3] R (ota Rights of Women) v Lord Chancellor and Secretary of State for Justice [2015] EWHC 35 (Admin) (limitations on grant of domestic violence legal aid intra vires the regulation-making powers of the Lord Chancellor); and see Family Law News at http://www.familylaw.co.uk/news_and_comment/domestic-violence-restrictions-on-grant-of-legal-aid#.VM0NS2jF81Y

[4] I avoid ‘family justice’ as that term has been hijacked by children lawyers

[5] Re K and H (Children: unrepresented father: cross-examination of child) [2015] EWFC 1 His Honour Judge Bellamy sitting as a Deputy High Court judge (HMCTS to fund an advocate to cross-examine for the court and an unrepresented father, a child who alleged he had abused her); and see Family Law News at http://www.familylaw.co.uk/news_and_comment/family-court-funding-2015#livefyre-comments

CONSULTATION ON CHILDREN AND VULNERABLE WITNESSES: COURT PROCEEDINGS

In July 2014 Sir James Munby, President of the Family Division and a working party he had set up, published a form of consultation paper – entitled an ‘interim report’ – on ‘children and vulnerable witnesses’. They allowed two months (half over the summer period) for practitioners to respond. My comments on this consultation process is at https://dbfamilylaw.wordpress.com/2014/08/21/consultation-fairness-law-and-the-administrative-process/

The consultation document can be found at http://www.judiciary.gov.uk/publications/president-of-the-family-divisions-consultation-interim-report-of-the-children-and-vulnerable-witnesses-working-group-31st-july-2014/

My response to the consultation follows. The suggested single rule change, I believe, is an inadequate response to the issues raised by the subject.

It is also worth reflecting on the extent to which this would be one of the topics which any forthcoming child sex abuse inquiry should consider.

RESPONSE TO CONSULTATION ON

Interim Report of the Children and Vulnerable Witness Working Group – 31 July 2014[1]

SUBJECTS OF THE PAPER: ‘PROTECTED INDIVIDUALS’

A consultation paper

  • The working group on ‘children and vulnerable witnesses’ is appointed (it is said) by the Judiciary and Tribunals Office. Its authors are described as being ‘set up’ by Sir James Munby P with aims set out in his ‘12th View’ from his chambers (4 June 2014). In what follows their ‘interim report’ will be treated as a consultation document issued by a public authority[2] – namely from the Ministry of Justice. It will be responded to accordingly.
  • Responses are sought by 3 October 2014 at 5 pm. The working group seems to be entrusted with a very important job, which affects people who are particularly ‘vulnerable’ – by definition. It is intended that its job be completed in a three weeks (by the end of October 2014) because the Ministry of Justice demands it. I believe this is unfortunate for reasons which are set out below. It is urged to take considerable care. The President himself (as will be seen below) has speculated that primary legislation may be required. This cannot be done in only a few weeks.

‘Proposals and initial recommendations’

  • Following the group’s one meeting it has put forward a variety of ‘proposals and initial recommendations’ (para 13). Whether or not the term ‘vulnerable witness’ should be used seems to be open (para 9; but see para 13(iii) which seems to close off the point again).
  • The group questions whether its work should ‘focus on reform in public law[3] and on private law cases involving domestic abuse’ (para 10).
  • In summary the initial recommendations are:
  • ‘The reforms’ should apply to all family court cases ‘from the outset’ (para 13(i))
  • There should be a new ‘mandatory[4] rule’ for ‘children and vulnerable witnesses and parties’ with PDs and Guidance to be ‘inserted’ in FPR 2010 as soon as possible (13(ii) and (iv)); and there should be ‘a new Part 4 to the FPR’[5] (13(v)). This is to be drafted by the working group with the Family Justice Council etc (13(xvi)[6]).
  • Paras 13(vi)-(vi) deal with the main content of ‘the rule’
  • Paras 13(vii)-(x) require advocates and litigants in person to identify ‘vulnerable’ parties etc
  • A practice direction for FJC[7] guidance to judges is recommended (13(xi); and the status of judicial discussions which children should be clarified (13(xii)).
  • Special measure should be made for vulnerable witnesses; and ‘the rule’ should contain details as set out in paras 13(xiii) and (xiv).
  • There should be training for judges[8] and advocates (13(xvii)-(xix)) and ‘as part of the (sic) tool-kit’.[9]
  • Responses on these three areas – the initial recommendations, the subjects of the reforms (‘vulnerable witnesses’ or otherwise) and the span or ‘focus’ of the work – as well as on other questions will be the basis of what follows.

‘Protected individuals’: in civil proceedings

  • With what subjects should the proposals concern themselves? There seems to be no reason why parties, witnesses and all relevant others involved in all civil proceedings should not be comprised in the working group’s considerations. There is no clear logic in limiting the work to the family court only. The proposals might helpfully cover any information obtained from protected individuals and in any context, not only in relation to court proceedings (though possible court proceedings must be a criterion for triggering any rule or other legislative changes).
  • Perhaps a more appropriate title for the work of the group might be something like ‘protected individuals’. These individuals would be involved or may be involved in one way or another in civil all proceedings (including, for the avoidance of doubt, family proceedings).
  • It can be seen that the aims of the group – tentatively at some points (see para 13(xv)) – include not only children and ‘vulnerable witnesses’; but also other individuals who may be vulnerable in different ways (eg because of the form of the proceedings (eg domestic abuse or forced marriage)); or because a child welfare informant (as in eg D v National Society for the Prevention of Cruelty to Children [1978] AC 171).
  • The information which is first provided by a protected individual may not necessarily be for use in court proceedings. Every effort should be made to avoid court-based terms such as ‘evidence’, ‘witness’ etc, unless the information provided by the protected individual is specifically provided for, or to be used for, court proceedings.
  • In logic the group should please consider the special position of individuals (who may later become witnesses) who require protection in other circumstances: for example, because of their relationship with one of the parties (eg the parent or child in cases of abuse by a party[10]), because of their capacity (Mental Capacity Act 2005) or because they are child welfare informants.[11]
  • Further the full spectrum of civil proceedings, not just family proceedings, should please be kept in mind throughout: the views of a child may be as important in judicial review proceedings arising from CA 1989 Part 3 (CPR 1998 Part 54), as in connection with a contact dispute between his/her parents or an application to restrain (or permit) publicity in any form of children proceedings (see eg Torbay Borough Council v News Group Newspapers [2003] EWHC 2927, sub nom Re Roddy (A Child)(Identification: Restriction on Publication) [2004] 2 FLR 949 Munby J).

Human rights: rights in all civil courts

  • At all points any public authority – local authority children’s department, health, schools, courts, police etc – must bear in mind their duties under European Convention 1950 and that they must apply Convention principles to what they are doing.[12] In many cases there will be a balance to be drawn between respect for private life (Art 8), and the right to a fair trial (Art 6(1)).
  • This consultation may need to ask, in the case of protected witnesses, whether judges and lawyers put fair trial rights too high: eg as against the right of a protected individual to respect for family and private life (as perhaps in the case of Re A (A Child)[2012] UKSC 60).
  • Do child rights, children welfare and concerns for protected individuals justify special rights in all civil courts? This is probably a separate and wider subject; but it is a dimension of what is under consideration here.
  • Rights, and in particular European Convention 1950 rights, as a distinct aspect of the consultation does not seem to have impacted upon the working group’s discussions. Perhaps training for all involved in working with protected individuals should include a clear training component on this. Such training would include as much clarity as possible on such issues and confidentiality and publicity; rights as to giving information and not; and self-incrimination privilege (where relevant).

Rules or primary legislation

  • The working group is respectfully requested to recall that a rule cannot alter the law; and thus to reflect on the extent to which their reforms seek to amend the law that it must be within the terms of powers delegated to Family Procedure Rules Committee or that primary legislation is required.

CONTENT OF THE INFORMATION FROM PROTECTED INDIVIDUALS

Information from protected individuals

  • To what information or evidence is this consultation addressed? Use of terms such as ‘witness’ and ‘evidence’ implies it is uniquely for court proceedings; or as in support of a party to proceedings. This is misleading. The likelihood is that it will not be only for court proceedings that information is gathered in the first instance, especially where it comes from children.
  • The context in which it is ultimately used – by definition and so far as this consultation is concerned – will, of course, be court proceedings.
  • It is therefore necessary to examine (1) what forms of information are involved; (2) from whom that information will come; and (3) then to consider how that information may be employed whether this is in court proceedings or otherwise.

Forms of information

  • Information which is collected from protected individuals, or where they give evidence in court and are entitled to protection, will include:
  • Information which vulnerable individuals (including children) may wish to give to public authority representatives (local authority, schools, police etc), quite separate from court proceedings (at this stage)
  • Information and views which children who are the subject to proceedings may want to provide to the court
  • Evidence which children as parties wish to give to the court
  • Protection for ‘vulnerable’ parties (parents and children who allege abuse by a party, where that party may have a right to cross-examine them)

PROTECTED INDIVIDUALS

Protection for whom?

  • The forms of civil proceedings which might involve a protected individual in any conceivable role include:
  • Children who take their own CA 1989 Part 2 proceedings and in their own right (with permission from the court as appropriate[13])
  • Children proceedings where the child is the subject of the case (ie the case is about the child and his/her family): either because parents are seeking an order in respect of the child (Children Act 1989 Part 2 (‘child arrangements’) or Part 4 and 5 (care etc).
  • Children who are accommodated by a local authority (CA 1989 Part 3) and may be involved in eg judicial review proceedings in relation to their care
  • Children who may be called as a witness in proceedings under (1) above
  • Children who may claim financial provision from a parent (CA 1989 Sch 1 para 4)
  • Family proceedings where an adult is to be cross-examined by an (alleged abuser)[14]
  • A child or adult in any civil (including family) proceedings lacks capacity
  • A protected individual (as with X in Re J (A Child) [2014] EWCA Civ 875) is required to give evidence in any of the above proceedings and to be cross-examined or to give evidence in front of an alleged abuser.[15]
  • Rules should please be framed which comprise all civil – ie not just family – proceedings.

CONTEXT IN WHICH THEIR INFORMATION IS USED

Protected parties: in what context

  • If any changes to the law are proposed – whether of primary legislation or of procedural rules (and see paras 13(ii) and (v)[16]) – then before this can be contemplated there must be a review and, so far as possible, a definition of the primary law and the courts proceedings to which procedural changes might apply. Interim rule changes could be introduced in the interim.
  • The involvement of protected parties will span their first involvement either with a public authority; or with the courts where, as the subject of private proceedings, they may wish to – or be asked to – give their views as children of age and understanding. For this section court proceedings only are under consideration.
  • All civil proceedings should be included (though it is only in a small minority of CPR 1998 proceedings that children will be involved). There is no point in having rules only applicable in family proceedings.

Cross-over with criminal proceedings

  • Protocol and good practice model, October 2013: Disclosure of information in cases of alleged child abuse and linked criminal and care directions hearings[17] provides a protocol to link between care proceedings under FPR 2010 and criminal proceedings. In A Local Authority v DG & Ors [2014] EWHC 63 (Fam), Keehan J dealt with a related matter which involved the cross-over between care and criminal proceedings by a Bovale[18] ‘gap’ practice direction.
  • It is surely lazy law-making to leave such a crucial subject to a ‘protocol’ and ‘gap’ directions. Surely it justifies clear primary legislation (where need be) with all necessary delegated legislation – ie court rules, which cover both criminal and care proceedings.

Protected individuals as witnesses

  • Where protected individuals are called as witnesses what protection can they expect from the court? This may include:
  • Special arrangements for their evidence to be given
  • Some form of clear public interest, or other immunity, for individuals who have given information which relates to child protection
  • Protection from cross-examination by an abuser or other hostile litigants in person[19]
  • In appropriate circumstances some form of closed material (or other evidence) procedure may be called for;[20] though this will require primary legislation, on the basis of Lady Hale’s comments in Re A (A Child)[2012] UKSC 60.[21] It is a substantial subject which requires further detailed consideration. It was considered eg in A Chief Constable v YK and Others [2010] EWHC 2438 (Fam) [2011] 1 FLR 1493, Sir Nicholas Wall P.
  • This subject is also considered also under child welfare informants below.

HOW IS PROTECTION TO BE ACHIEVED?

Ways in which information may be obtained and put before the court

  • This section requires consideration of how information is obtained in the first place; and, if it is required as part of court proceedings, how it is deployed in court. In particular the rights and welfare of the particular protected individual must be born in mind.
  • Further in any such consideration of a child who is a protected individual it is likely always to be necessary to balance their welfare rights against any rights to a fair trial pleaded by a party to proceedings.
  • How should the rights of protected individuals generally be balanced against the rights of other involved in court proceedings? Should their rights be the same as those of children?
  • In the case of children: if a balance is required to be struck between their rights and the Convention rights of a party to court proceedings (ie Convention ‘proportionality’), the House of Lords and Supreme Court have said that this must be conducted by measuring ‘the nature of any impact on the child’ (per Lord Steyn in Re S (Identification: Restrictions on Publication) [2004] UKHL 47, [2005] 1 FLR 591 (at para [17]).
  • The interests of the child are as much a primary consideration for the LAA decision-maker as for any other agency (eg the parole board or Home Office) (ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 at para [33]). The balance must be drawn between respect for the child’s private life (Art 8) and (say) the right of a parent for a fair trial (Art 6). In H(H) v Deputy Prosecutor of the Italian Republic, Genoa (Official Solicitor intervening) [2012] UKSC 25 the primacy of a child’s interest was explained by Lord Kerr:

[144] … It is unquestioned that in each of these cases, the children’s article 8 rights are engaged. As a matter of logical progression, therefore, one must first recognise the interference and then consider whether the interference is justified. This calls for a sequencing of, first, consideration of the importance to be attached to the children’s rights (by obtaining a clear-sighted understanding of their nature), then an assessment of the degree of interference and finally addressing the question whether extradition justifies the interference….

[145] ….no factor must be given greater weight than the interests of the child.

Relaxing of hearsay rules

  • Hearsay rules are already relaxed by Children (Admissibility of Hearsay Evidence) Order 1993 Art 2 in relation to children proceedings.
  • Two immediate questions arise from this:
  • Does the working of this Order need review in relation to children proceedings; and
  • Should its provisions be extended to all proceedings involving protected individuals and their evidence?

Inquisitorial process for protected individuals

  • Is it desirable to have an inquisitorial process (akin to old-fashioned interrogatories) for the evidence of protected individuals; and if so how would that operate? Thus, should a party who wishes to ‘cross-examine’ a protected individual be required, for example, to submit questions through the judge who would then have the power to edit them within terms that would provide a fair trial to the questioner Balanced against the welfare or other rights of the protected individual?
  • The extent to which a judge should see a child is considered in ‘Children who want to provide information’ (below); but it must be born in mind that different rules will be required where a child is a witness of fact (and called by one or other party to give evidence); and where the judge or the parties (including the child) feel it is appropriate for the court (judge or magistrates) to see the child.

CHILDREN WHO WANT TO PROVIDE INFORMATION

Talking to the judge

  • Most of the considerations in the working group’s paper in relation to court proceedings will be in the context of contested court proceedings. In addition there will be many cases where a child ‘of age and understanding’ wishes to speak to the judge; or where the judge may want to be sure that a child’s views have been made clear to the court before a decision is made.
  • A Practice Note of April 2010 – Guidelines for judges meeting children [in] family proceedings[22] – deals with how judges may be able to permit children to feel more involved in their proceedings. The purpose of the Note is described as:

The purpose of these Guidelines is to encourage judges to enable children to feel more involved and connected with proceedings in which important decisions are made in their lives and to give them an opportunity to satisfy themselves that the Judge has understood their wishes and feelings and to understand the nature of the Judge’s task.

  • The Note stresses that the purpose of the meeting is not for the ‘gathering [of] evidence’ by the judge (para 5). This aspect of the guidelines, in particular, was considered by the Court of Appeal in ###.

CHILD WELFARE INFORMANTS

  • The status of members of the public, family members, neighbours and others provide information to the child protection authorities (police and social workers) is the subject of conflicting House of Lords/Supreme Court decisions. There is no question that police informants have protection. In D v NSPCC[23] the evidence of the informer was said to be covered by public interest immunity.
  • The working group may wish to consider recommendations, which might involve primary legislation, to clarify the position of and protection for those who provide information which helps to protect children. This might include statutory immunity and treatment of the informer’s evidence (eg as hearsay).
  • The conflict between the rights of the informant as seen by the House of Lords in D v NSPCC and by the Supreme Court in Re A [2012] will surely need to be resolved by primary legislation?[24]

CONFIDENTIALITY OF INFORMATION OF PROTECTED INDIVIDUALS

Confidentiality and human rights

  • The confidentiality of statements and other information of protected witnesses is, inevitably, tied in with the parallel ‘transparency’ consultation now under way at the urging of Sir James Munby P. This raises immediately the questions of whose confidentiality and in what context? It would surely be sensible to join up or co-ordinate relevant aspects of the two projects?
  • The evidence of protected individuals is inevitable bound up with their confidentiality. This in its turn raises issues in relation to European Convention 1950 Arts 6(1) and 8; and perhaps Art 10. It is not clear from its initial recommendations to what extent the working group have the special issues on confidentiality and protected individuals in mind. It is to be hoped that this will be carefully considered and that their particular rights will be balanced against any Art 6(1) arguments.

LEGAL AID AND THE PROTECTED INDIVIDUAL

  • The extent to which a party to proceedings who wishes to cross-examine a protected person is the other side of the litigants in person coin. Perhaps this can be the subject of recommendations from the working group to Ministry of Justice which would guarantee a degree of public funding where a party otherwise would act in person, and who wishes legitimately to cross-examine a protected individual.
  • This was considered in outline by the President in Q v Q [2014] EWFC 31 (on 6 August 2014), is considered by me in ‘State funding for family proceedings after Q v Q’ in Family Law News;[25] and is the subject of my forthcoming series in Family Law starting in October 2014. That series concludes in December 2014 with suggestions as to how the President’s state funding ideas might work in practice.
  • The working group may be aware that concerns at reductions in legal aid and its effect on cross-examination of protected individuals has surfaced in the broad-sheet press at least once under the headline ‘Domestic violence victims are being forced to face abusers in court ordeal, lawyers warn’[26]. This then leads on to the next subject.

LITIGANTS IN PERSON

Litigants in person dealing with protected individuals

  • How does the court protect a protected individual who is to be cross-examined by his/her alleged abuser? This is more frequent now that legal aid is increasingly less available for a parent or alleged abuser; though they are someone who is entitled to cross-examine a witness who makes allegations against them as the law now stands.
  • A question the working party will wish to address is how the rights of a protected individual should be balanced against those of an alleged abuser to a fair trial. In a slightly different context this was considered by the Supreme Court in Re A (A Child)[2012] UKSC 60. In that cases Lady Hale considered that each of the parties – the child, the father and the mother – had fair trial rights; and that each of them and X (the child welfare informant) had rights to respect for family life (Art 8). Any rights which X had in relation to not to be subjected to degrading treatment (Art 3) were discounted by the court.
  • How should the rights under Art 6 and 8 be balanced? Lady Hale replied:

[33] …. to order disclosure [of X’s evidence] in this case would undoubtedly be an interference with X’s right to respect for her private life. She revealed what, if true, would be some very private and sensitive information to the authorities in the expectation that it would not be revealed to others. She has acquiesced in its disclosure to her legal advisers and to the court in these proceedings, but that can scarcely amount to a waiver of her rights. She had no choice. Clearly, her rights are in conflict with the rights of every other party to these proceedings. Protecting their rights is a legitimate aim. But the means chosen have to be proportionate. Is there, therefore, some means, short of full disclosure, of protecting their rights?…

[35] The only possible conclusion is that the family life and fair trial rights of all three parties to these proceedings are a sufficient justification for the interference with the privacy rights of X. Put the other way round, X’s privacy rights are not a sufficient justification for the grave compromise of the fair trial and family life rights of the parties which non-disclosure would entail.

[36] It does not follow, however, that X will have to give evidence in person in these proceedings.

  • The right to a fair trial for the family overrode the rights of X. This was not the same as the conclusion in D v NSPCC, and it is not the same basis for a decision as in police informant cases (see eg Marks v Beyfus (1890) 25 QBD 494; Powell & Anor v Chief Constable of North Wales Constabulary (Case No: CCRTI 1999/0904/B1) CA 1999 WL 1142622).

Role of the court in cross-examination

  • In the family court a judge – and presumably, a bench of magistrates – are formally given power to take over examination in chief or cross-examination of a witness ‘in the interests of the party’ seeking to examine. Matrimonial and Family Proceedings Act 1984 s 31G(6) provides as follows:

(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.

  • Sir James Munby P has considered the operation of s 31G(6) in Q v Q (No 2) [2014] EWFC 31 (see paras [69]-[79] set out below). He discusses this provision but makes no findings. Perhaps the central passage in his discussion is

[75] … does section 31G(6) operate to confer on a judge of the Family Court power to forbid a party who wishes to conduct his own case from examining or cross-examining a witness? Again I have heard no sustained argument, but my inclination is to think that the answer is, no it does not, for principle suggests that such an important right is only to be cut down by express words or necessary implication, and neither is very obviously to be found in section 31G(6): see again General Mediterranean Holdings SA v Patel and Another [2000] 1 WLR 272. As against that, I can see the argument that there may be cases where to expose the alleged victim to cross-examination by the alleged perpetrator might engage the alleged victim’s rights, whether under Article 8 or Article 3, in such a way as to impose on the court an obligation under the 1998 Act to prevent it, so that in such a case section 31G(6) has to be read as giving the court the appropriate power to do so.

  • I respectfully agree; but I do urge the working group to recommend the necessary primary legislation which will protect – in all civil proceedings – the victim from being examined/cross-examined by the perpetrator.
  • The next step will be to consider whether this is to be by the court, or by a ## to the court; and if the latter at whose expense? By what criteria will the judge need to consider appointment?

EUROPEAN CONVENTION 1950 – A HUMAN RIGHTS ACT 1998 BALANCE

Effects of European Convention 1950 on reforms

  • A number of the reforms contemplated by the recommendations and the discussion above inevitably involve Convention considerations. In Re X the requirement of a fair trial could be seen working against the interests of an informer. The working group will need to consider whether this strikes the right balance in respect of protected individuals. Can the ‘primacy’ (peer Lord Kerr above) of their interests be said to come above the rights of parties to proceedings to a fair trial?
  • Where a vulnerable individual may be at a disadvantage against one without disabilities, they have a right to a fair trial. Convention jurisprudence is that they must not to be put at a disadvantage in relation to an opponent (de Smith 7-118). This takes the discussion back to legal aid and the second of my articles in Family Law (due for publication in November 2014).

[1] http://www.judiciary.gov.uk/publications/president-of-the-family-divisions-consultation-interim-report-of-the-children-and-vulnerable-witnesses-working-group-31st-july-2014/: response by 3 October 2014

[2] ie broadly within the terms of the Cabinet office guidance on consultation documents of 5 November 2013 https://www.gov.uk/government/publications/consultation-principles-guidance

[3] The term used by family lawyers to connote care proceedings; though in this note other areas of ‘public’ or administrative law will require to be considered (eg Children Act 1989 Part 3)

[4] A rule cannot be other than ‘mandatory’?

[5] This proposal is not explained. Part 4, at present, covers the full spectrum of case management in family proceedings

[6] But not, be it noted, with FPRC or any practitioner groups such as Resolution or FLBA, whose practitioner input could prove invaluable; though FPRC, it seems, are expected to rubber-stamp ‘the rule’ change at a meeting ‘at the end of October 2014’ (para 14)

[7] It would be interesting to know what constitutional status the WG accords to the Family Justice Council

[8] And lay justices?

[9] What is a ‘tool-kit’ in the context of practice or training, and where does it derive from in this context?

[10] H v L and R [2006] EWHC 3099 (Fam) [2007] 2 FLR 162 Roderic Wood J, Q v Q (No 2) [2014] EWFC 31, Sir James Munby P

[11] As with X in Re A (A Child) [2012] UKSC 60 and Re J (A Child) [2014] EWCA Civ 875; but see also D v National Society for the Prevention of Cruelty to Children [1978] AC 171, (1977) FLR Rep 181 considered at ** below

[12] Human Rights Act 1998 s 6

[13] FPR 2010 Part 16

[14] See also MFPA 1984 38G(6) and below

[15] This may raise additional questions about whether there should be any special protection, guaranteed by law, for child welfare informants: and below

[16] One ‘mandatory rule change’ seems to be envisaged. As will be seen this is hopelessly inadequate even on the limited reform canvass proposed by the working group

[17] Set out eg in Family Court Practice 2014 at p 2977

[18] Secretary of State for Communities and Local Government v Bovale Ltd and anor [2009] EWCA Civ 171

[19] See eg comments by Roderic Wood J in H v L and R [2006] EWHC 3099 (Fam) [2007] 2 FLR 162 and of Munby P in Q v Q (No2)

[20] See separate notes; though such a procedure was considered and its uses doubted by Lady Hale in the Supreme Court in Re A (see nn below)

[21] [34] It is in this context that it has been suggested that the court might adopt some form of closed material procedure, in which full disclosure was made to a special advocate appointed to protect the parents’ interests, but not to the father himself. It faces two formidable difficulties. The first is that this Court has held that there is no power to adopt such a procedure in ordinary civil proceedings: Al Rawi v Security Service (JUSTICE intervening) [2011] UKSC 34[2012] 1 AC 531. That case can be distinguished on the ground that it was the fair trial rights of the state that were in issue, and the state does not enjoy Convention rights. It is arguable that a greater latitude may be allowed in children cases where the child’s welfare is the court’s paramount concern. But the arguments against making such an inroad into the normal principles of a fair trial remain very powerful. The second difficulty lies in the deficiencies of any closed material procedure in a case such as this. We have arrived at a much better understanding of those difficulties in the course of the control order cases, culminating in Secretary of State for the Home Department v AF (No 3) [2009] UKHL 28[2010] 2 AC 269. The essential requirement of any fair procedure is that the person who stands to lose his rights has an opportunity effectively to challenge the essence of the case against him. There may be cases in which this can be done by offering him a “gist” of the allegations and appointing a special advocate to scrutinise the whole of the material deployed against him. In a case such as this, however, it is not possible effectively to challenge the allegations without knowing where, when and how the abuse is alleged to have taken place. From this information it is inevitable that X’s identity will be revealed. Even if it were theoretically possible to devise some form of closed material procedure, therefore, it would not meet the minimum requirements of a fair hearing in this case.

[22] [2010] 2 FLR 1872, Family Court Practice 2014 p 2933; http://www.fnf.org.uk/phocadownload/downloads/guidelines_for_judges_meeting_children.pdf

[23] D v National Society for the Prevention of Cruelty to Children [1978] AC 171

[24] This subject is considered by me in full in Family Law [2014] February at ‘Disclosure, Privilege and public interest immunity: Public interest immunity’

[25] http://www.familylaw.co.uk/news_and_comment/state-funding-for-family-proceedings-after-q-v-q-private-law-public-funding-part-1#.VDFO5vmSz7w

[26] eg report in Independent of 5 October 2014 http://www.independent.co.uk/news/uk/crime/victims-of-domestic-violence-forced-to-face-abusers-in-court-ordeal-9774958.html