Vulnerable witnesses and children: human rights and legal aid

Cross-examination of victims of domestic violence


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


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


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


‘Urgent attention’ judicially requested 10 years ago


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

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


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


Child and vulnerable witness protection in criminal proceedings


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


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

(a)in connection with that offence, or

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


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


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


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


Resources implications; legal aid


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


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


[28] The family court will have to be realistic in evaluating how effective it can be in maximising the advantage while minimising the harm. There are things that the court can do but they are not things that it is used to doing at present. It is not limited by the usual courtroom procedures or to applying the special measures by analogy…. One possibility is an early video’d cross examination…. Another is cross-examination via video link [or] putting the required questions to her through an intermediary. This could be the court itself, as would be common in continental Europe and used to be much more common than it is now in the courts of this country.


Scale of the problem in family courts


The problem is much wider than the Justice Secretary seems to understand. In 2014 a working group was set up by Sir James to consider the evidence of vulnerable witnesses where this might be ‘diminished’ by their attendance in court as witnesses, parties or other participants in family proceedings (considered further in


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


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


Exceptional case funding


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


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

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

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

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

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


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


Resolution of resources questions


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


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


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


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


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


Effective, imaginative and pro-active case management


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


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


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


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


‘Special measures’ and legal aid


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


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


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

# Human rights: availability of special measures for vulnerable witnesses and children

What criminal proceedings procedures offer the family courts to help vulnerable witnesses?


The failure of the family proceedings rule-makers to provide protective rules for children and vulnerable witnesses in family and – to an extent – other civil proceedings tends towards a failure of the government to provide a fair trial (European Convention 1950 Art 6(1)) for such individuals. Protection has been available, to a sophisticated level, for children and vulnerable witnesses in criminal proceedings at least since the introduction of Youth Justice and Criminal Evidence Act 1999 (YJCEA 1999) Part 2. If it be accepted that YJCEA 1999 is mostly a codification of common law remedies, then the failure of judges in family proceedings to use them (see references below eg to Re S (Children) [2016] EWCA Civ 83 (considered further below) compounds the unfair trail aspect.


In 2014 Sir James Munby, President of the Family Division, set up the Vulnerable Witnesses and Children Working Group (VWCWG) – with the suggestion that three areas be reviewed in relation to the evidence of children and vulnerable individuals: (1) judge’s meeting children, (2) children giving evidence and (3) ‘vulnerable people giving evidence in family proceedings’. This group published its final report, with proposed draft rules in March 2015; but the any rules are yet to be made. The work of the VWCWG will be considered in Part 6.


The special measures directions considered in this chapter include the evidence of children; in part because the VWCWG proposed amendments to FPR 2010. However, the ways in which children participate in proceedings are mostly dealt with in Chapter 19 under the respective Guidances for their evidence and meeting with the judge: Guidelines in relation to children giving evidence in family proceedings of 2011 ([2012] Fam Law 70 (; and Guidelines for judges meeting children who are subject to family proceedings of 2010 ([2010] 2 FLR 1872,


The special measures under YJCEA 1999 Part 2 are designed to help ‘vulnerable or intimidated witnesses’ to give their best evidence. As Lady Hale explained in R (D (a Minor)) v Camberwell Green Youth Court [2005] UKHL 4, [2005] 1 WLR 393:


[19] … The aim of the special measures is to assist vulnerable or intimidated witnesses who might otherwise be unwilling to come forward at all or unable to give the best evidence of which they are capable.


Scheme under Youth Justice and Criminal Evidence Act 1999


Youth Justice and Criminal Evidence Act 1999 (YJCEA 199) Part 2 sets up a scheme for special measures for assistance of children and vulnerable witnesses in criminal proceedings. The scheme does not apply in family proceedings; but it will be considered in some detail here, first, because reference is made to it in a number of family cases (including, most prominently, by Lady Hale in Re W (Children) (Abuse: Oral Evidence) (above)); secondly, because it is the source for a number of the proposals of the VWCWG; and, thirdly, because many aspects of the YJCEA 1999 scheme represent the common law and may be used by analogy in family proceedings without any changes to substantive law or court rules.


Under YJCEA 1999 s 18(1)(a), the following special measures are available – as appropriate – to help children and vulnerable witnesses.


  • preventing a witness from seeing a party, by ‘screen or other arrangement’ (s 23);
  • allowing a witness to give evidence by live link (s 24) (ie video-link or other means for a witness, absent from the hearing room, to give evidence: s 24(8));
  • hearing a witness’ evidence to the exclusion of others (ie in private, which is normally the case in children proceedings) (s 25);
  • admitting video recorded evidence or cross-examination (s 27 and 28);
  • questioning a witness through an intermediary (s 29);
  • using a device to help a witness communicate (s 30);
  • a direction may be given to dispense with the wearing of wigs and gowns when evidence is given (s 26).


Eligibility for assistance: ‘quality of evidence’ – special measures direction


The criterion for use of special measures is that, were it not for such measures, the quality of a witness’s evidence might be impaired. The ‘quality of a witness’s evidence’ (a term adopted by the VWCWG would-be reformers) is defined, for the entirety of Part 2 Chapter 2, by s 16(5) as follows:


(5) In this Chapter references to the quality of a witness’s evidence are to its quality in terms of completeness, coherence and accuracy; and for this purpose “coherence” refers to a witness’s ability in giving evidence to give answers which address the questions put to the witness and can be understood both individually and collectively.


YJCEA 1999 ss 16 and 17 create three categories of witness who may be eligible for assistance under Chapter 1 of the Act. YJCEA 1999 s 16(1)(a) defines a witness in criminal proceedings as eligible for assistance if under 17 at the time of the hearing fixed to consider a special measures direction. Section 16(1)(b) deals with witnesses who are otherwise eligible for assistance (ie a vulnerable witness). Section 16 provides as follows:


16 Witnesses eligible for assistance on grounds of age or incapacity

(1)For the purposes of this Chapter a witness in criminal proceedings (other than the accused) is eligible for assistance by virtue of this section—

(a)if under the age of 17 at the time of the hearing; or

(b)if the court considers that the quality of evidence given by the witness is likely to be diminished by reason of any circumstances falling within subsection (2).

(2)The circumstances falling within this subsection are—

(a)that the witness—

(i)suffers from mental disorder within the meaning of the Mental Health Act 1983;

(ii)otherwise has a significant impairment of intelligence and social functioning;

(b)that the witness has a physical disability or is suffering from a physical disorder.


YJCEA 1999 s 16(1)(b) deals with all other witnesses (ie other than children under 17), who may be eligible for assistance (ie vulnerable witnesses) and who come within the terms of s 16(2): namely that are mentally incapacitated with the terms of Mental Capacity Act 2005, or that otherwise the ‘witness has a physical disability or is suffering from a physical disorder’. Section 17(1) defines as eligible for assistance a witness where:… the court is satisfied that the quality of evidence given by the witness is likely to be diminished by reason of fear or distress on the part of the witness in connection with testifying in the proceedings. In the case of a child under s 16 or other individual under s 17 the court must consider any views of the witness concerned (ss 16(4) or 17(3)). The adult witness ceases to be eligible for assistance if s/he tells the court assistance is not required in giving evidence (s 17(4)).


If a witness comes within one of the categories in ss 16 or 17 s/he is eligible to be considered for assistance in the form one or more of the special measures directions set out in ss 23-30. Section 19 provides for setting up special measures directions for all witnesses who come within the provisions of ss 16 and 17 in criminal proceedings, whilst particular arrangements apply in relation to children (s 21). For all witnesses YJCEA 1999 s 19(1) and (2) provides for ordering of special measure directions and the factors the court takes into account in so doing.


Rights of a party to cross-examine


The question for the House of Lords in R (D (a Minor)) v Camberwell Green Youth Court [2005] UKHL 4, [2005] 1 WLR 393 was whether an accused in criminal proceedings is entitled to cross-examine a child witness in the accused’s presence within the terms as to special measures and ‘special protection’ for a child under YJCEA 1999. The House of Lords held unanimously that the nothing in European Convention 1950 guarantees face-to-face questioning and the appeals were dismissed. It is necessary only that the defence have a proper opportunity to challenge a prosecution witness. Lord Rodger explained this:


[15] … Article 6(3)(d) of the Convention [has not] been interpreted as guaranteeing the accused a right to be in the same room as the witness giving evidence. What matters, as Kostovski v Netherlands shows, is that the defence should have a proper opportunity to challenge and question the witnesses against the accused. The decision of the European Commission of Human Rights in Hols v Netherlands Application no 25206/94, 19 October 1996, and the judgment of the Court in SN v Sweden Application no 34209/96, 2 July 2002, confirm that these requirements can be satisfied even where, for good reason, the accused is not physically present at the questioning. Here the good reason is to further the interests of justice by adopting a system that will assist truthful child witnesses to give their evidence to the best of their ability….


A child or other vulnerable witness is entitled to protection from cross-examination by an alleged assailant of a young person under YJCEA 1999 s 34. In family proceedings comments of Lady Hale in the Supreme Court can be referred to in support of this proposition, as to the present position at common law. In Re W (Children) (Abuse: Oral Evidence) (above) Lady Hale spoke of ‘special measures by analogy’, and made reference to the way family courts might make use of special measures:


[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. The important thing is that the questions which challenge the child’s account are fairly put to the child so that she can answer them, not that counsel should be able to question her directly. One possibility is an early video’d cross examination as proposed by Pigot [ie Report of the Advisory Group on Video Evidence (1989). Another is cross-examination via video link. But another is putting the required questions to her through an intermediary. This could be the court itself, as would be common in continental Europe and used to be much more common than it is now in the courts of this country.


However, said Lady Hale, private family children proceedings created particular pressures, such that allegations are being pressed by one parent against the other; the child is rarely a party with the protection of a guardian or legal representation.


[29] In principle, the approach in private family proceedings between parents should be the same as the approach in care proceedings. However, there are specific risks to which the court must be alive. Allegations of abuse are not being made by a neutral and expert local authority which has nothing to gain by making them, but by a parent who is seeking to gain an advantage in the battle against the other parent. This does not mean that they are false but it does increase the risk of misinterpretation, exaggeration or downright fabrication. On the other hand, the child will not routinely have the protection and support of a Cafcass guardian. There are also many more litigants in person in private proceedings. So if the court does reach the conclusion that justice cannot be done unless the child gives evidence, it will have to take very careful precautions to ensure that the child is not harmed by this.


Measures available in family courts


In Re A (Sexual Abuse: Disclosure) [2012] UKSC 60, [2013] 1 FLR 948 Lady Hale explained how family law was already plentifully provided with means to protect vulnerable witnesses. For example, there are ways for child witnesses to avoid direct ‘courtroom confrontation’; and this could be extended ‘to other vulnerable witnesses’ (as in the case of Re A: Re A involved disclosure of the statements made by a vulnerable young adult witness (‘X’) to social workers about the child A; and the likely later calling of X to give evidence during A’s fathers claim for contact with A):


[36] It does not follow, however, that X will have to give evidence in person in these proceedings.… If any party wishes to call X to give oral evidence, up to date medical evidence can be obtained to discover whether she is fit to do so. There are many ways in which her evidence could be received without recourse to the normal method of courtroom confrontation. Family proceedings have long been more flexible than other proceedings in this respect. The court has power to receive and act upon hearsay evidence. It is commonplace for children to give their accounts in videotaped conversations with specially trained police officers or social workers. Such arrangements might be extended to other vulnerable witnesses such as X. These could include the facility to have specific questions put to the witness at the request of the parties. If she is too unwell to cope with oral questioning, the court may have to do its best with her recorded allegations….


Alternatively questioning could be set up in such a way as to avoid face-to-face confrontation between the party to proceedings and the vulnerable witness:


[36] … On the other hand, oral questioning could be arranged in ways which did not involve face to face confrontation. It is not a requirement that the father be able to see her face. It is, to say the least, unlikely that the court would ever allow direct questioning by the father, should he still (other than in this court) be acting in person. The court’s only concern in family proceedings is to get at the truth. The object of the procedure is to enable witnesses to give their evidence in the way which best enables the court to assess its reliability. It is certainly not to compound any abuse which may have been suffered.


Justice for an alleged abuser


The position of the alleged abuser or ‘accused’ – like K’s brother and father of the children in Re S (Children) [2016] EWCA Civ 83 (because special measures could not be fixed for a young person witness (K) against the father, her mostly hearsay evidence was accepted by the judge and in the light of her refusal to give oral evidence); or the father in Re A (Sexual Abuse: Disclosure) [2012] UKSC 60, [2013] 1 FLR 948 – must not be forgotten. They too have rights. European Convention 1950 Art 6(1) guarantees a fair trial; and, in the case of criminal proceedings Art 6(3)(d) intends that all persons charged with a criminal offence should, as a minimum, have the right:


(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;


In R (D (a Minor)) v Camberwell Green Youth Court (above) the House of Lords held that the provisions of the 1999 Act did not infringe Art 6(3)(d) rights, so long as means were found to ensure that an accused or other party could put questions to challenge the evidence of an opposing party’s witness.


Fairness will be served – and as far as possible European Convention 1950 Art 6 complied with – if any measures in family proceedings can achieve the equivalent of YJCEA 1999 Part 2. And this is especially so where – as with care proceedings – the consequences of the process are as close to those in a criminal trial as can be in family proceedings (as occurred in Re S (above) and as Gloster LJ made clear in her dissenting judgment in that case).


Sir James Munby and plans for family courts reform


Sir James Munby, President of the Family Division, has courted some controversy – and beyond family law legal circles – with his announcement, at a bar lawyer’s dinner at Middle Temple Hall on 26 February 2016, of the next phase of his reform plans for family courts ( Continued reforms are needed. This note summarises the President’s ideas, and proposes other priorities for family law.


Sir James outlined his plans in four main areas. First he emphasised his concern for children’s involvement in the court process: both as to their ‘jig-saw’ identification where law reports about their family have been published in his push for ‘transparency’; and also as to how they might be involved in the process itself. He highlighted the fact that the proposed reforms for vulnerable individuals in family proceedings – joined with proposals for children’s involvement in proceedings – are stalled on a spoke of ‘decisions by officials and ministers on various funding and other resources issues’.


Secondly, there is a real need – for litigants in person and parties generally – for administrators (which includes the President) to ‘strive constantly to improve, to streamline and to simplify the system’. To emphasise this point he says ‘we need an entirely new set of rules’. The present rules are ‘fit only for the bon fire’, he say (he seems to overlook that Family Procedure Rules Committee is responsible for drafting the rules, and is chaired by him, though its minutes show he rarely attends the Committee’s meetings).


‘Settlement conferences’ – broadly formal attempts at in-court mediation – are to be developed for children proceedings (many would say, not before time). And then judges might become involved at a ‘pre-proceedings’ stage. Will judges become social workers and attend case conferences? I wonder how many of Sir James’s fellow judges were involved in a discussion of that idea?


Finally, what is the ‘function and purpose of the family courts’? Sir James answers the ‘function’ question by saying the court must move to a digital future with much of its work being done on-line and thus outside the court arena. Part of this would be re-writing of the rules – so far as ‘we still need them’ – in ‘plain English’. But of ‘purpose’: save for judges involved at a ‘pre-proceedings’ stage, Sir James says little; and I must touch on this below.


A family court for the 21st century


If I had been drafting Sir James’s speech I would have included: mediation; the purpose of a family court; clarity of drafting; dealing with children and vulnerable individuals; and IT.


Mediation, as a topic, does not feature in Sir James’s speech; yet as a priority over litigation, or as a parallel means of resolving disputes by agreement, mediation is essential to any contested process of family breakdown. It must be a firm part of any family law reform process.


The first purpose of courts is adjudication on contested issues: without an issue there would be no need to go to court (except the administrative throw back in family courts of divorce). Thus, where mediation leaves unresolved issues, the court will be involved in adjudication on facts or law or both; but it is important to be clear (1) that that is what judges do; and (2) that they only become involved when someone – an applicant – asks them; not, for example, as part of some social work, or other therapeutic, process relating to children or separating couples.


A fair means of adjudication which is accessible must be the first purpose of a court system. This demands clarity in law drafting. Procedural rules must be developed which can be understood by any averagely intelligent lay person; though the law can be complex and cannot always be reduced to a lowest common denominator linguistic factor. Judges, like Sir James, must always recall that rules are there as much to regulate judges and case management as to regulate the way that the parties’ dispute proceeds to judgment. Rules will always be an essential component of fairness and of the rule of law.


Vulnerable individuals and hearing children are two separate aspects of reform, but are coupled here for economy of space. Some effective rules must be developed (family law is 16 years behind criminal law); but the present draft (Family Procedure Rules (Amendment No X) 2015 must be clearer. For its main consumers (children and abused individuals) it will be a poor advertisement for clarity in law drafting. What are they to make of, for example, ‘special measures’ which apply to them where their evidence may be ‘diminished’? If they understand what that means, how then are they to secure payment for the measures?


Many ideas are at large for involving information technology in forms of court process. What has happened to the online dispute resolution (‘ODR’) report ( of February 2015? ODR ideas need development within the family courts system. Their importance for mediation and resolution of disputes cannot be put too high. But the role for personal involvement – especially in family breakdown – remains. Technology cannot replace individual mediators, legal advice and the role of judges where discretion and legal principle must be balanced.


Today is D-day for reply to consultation on Amendment X to Family Procedure Rules 2010 (; and see

I have an extension till 9 October 2015 (because I asked for info as to papers Family Procedure Rules Committee considered at their 15 June meeting when Amendment X was signed off). I am sure time would be extended for other consultees who want to reply.

It is such an important subject for those affected; and for the progress of justice in civil and family courts. If anyone is willing to send their replies to me at I’d be most grateful.

David Burrows

25 September 2015


Funding for intermeddling, and where will it come from?

It is now C-Day[1] 14. No draft ‘Explanatory Note’ to Amendment X (‘Amendment X’: Family Procedure Rules 2010 ‘Part 3A: … vulnerable persons: participation in family proceedings and giving evidence’ ( No draft explanatory note has been produced to accompany the draft regulations; and the practice direction, to which the rules refer – and on which, says Ministry of Justice, they will consult separately – is yet to be seen by anyone outside Family Procedure Rules Committee and the Ministry of Justice civil servants.

Specialist children lawyers and other child law professionals will want to know – if they do not already – what ‘intermediaries’ are (Pt 3A r 3A.7(1)), and how they are to be paid. The term ‘intermediary’ is not defined in Part 3A, nor – as far as I can see – at anywhere in FPR 2010. It must include – surely? – people working with disable of all sorts (the deaf, dumb or blind (often social workers or other professionals employed by charities, which also need to be paid – see eg; those who treat hospitalised or otherwise immobilised, parties and who must help conduct the trial and case management proceedings from a bedside; lawyers in special advocate or closed material procedure cases etc. Most critical of all to the success of any vulnerable witnesses court scheme is how is intermeddling to be funded: on its own – ie without statutory intervention – it does not pay for itself.

‘Vulnerable’ individuals

Draft rule 3A.1(1) is – I think – an attempt, by another euphemism, to define ‘vulnerable’ as applied to parties and witnesses in family courts proceedings. The term is used to describe those individuals (other than children) who are covered by Amendment X. However the term does not appear in the body of Part 3A. Instead, we are told, Part A refers (as relevant here)

… to proceedings where— … (b) the participation of a party in the proceedings is likely to be diminished; or (c) the quality of evidence given by a party or witness is likely to be diminished.

The rule makers seem too coy to say so, but I believe r 3A.1(1) grapples for a word which is other than; but where has it come from. First see the heady prose of John Donne, late in his life, in Meditation XVII[2] (

PERCHANCE he for whom this bell tolls may be so ill as that he knows not it tolls for him.  And perchance I may think myself so much better than I am, as that they who are about me, and see my state, may have caused it to toll for me, and I know not that. [When]  The church …buries a man, that action concerns me; all mankind is of one author, and is one volume; when one man dies, one chapter is not torn out of the book, but translated into a better language; and every chapter must be so translated; [as] therefore the bell that rings to a sermon, calls not upon the preacher only, but upon the congregation to come; so this bell calls us all: but how much more me, who am brought so near the door by this sickness.

… The bell doth toll for him, that thinks it doth; and though it intermit again, yet from that minute, that that occasion wrought upon him, he is united to God.  Who casts not up his eye to the sun when it rises?  But who takes off his eye from a comet, when that breaks out? who bends not his ear to any bell, which upon any occasion rings?  But who can remove it from that bell, which is passing a piece of himself out of this world?
And then the well-known passage:
No man is an island, entire of itself; every man is a piece of the continent, a part of the main; if a clod be washed away by the sea, Europe is the less, as well as if a promontory were, as well as if a manor of thy friend’s or of thine own were; any man’s death diminishes me, because I am involved in mankind, and therefore never send to know for whom the bell tolls; it tolls for thee.

‘Likely to be diminished’

Any man’s death ‘diminishes’ me. Is that what is, subliminally, in the drafter’s mind when he sought to describe vulnerable individuals proceedings. ‘Vulnerable’ has always been the preferred description; but for now it is proposed to be ‘diminished’; and not by anything…; just ‘diminished’.  We are not told by what, or why or how this word is to be understood.

[1] Fourteen working days till – nominally at least – the Ministry of Justice period on their vulnerable individuals in family courts consultation runs out

[2] Nunc lento sonitu dicunt, morieris: Now this bell tolling softly for another, says to me, Thou must die.


Consultation on draft amendment rules

So what is this consultation all about? First the facts: Family Procedure (Amendment No X) Rules 2015 are out for consultation. Comment is invited by 25 September 2015. Family Procedure Rules 2010 are proposed to be amended by adding Part 3A – Children and vulnerable persons: participation in proceedings and giving evidence. No explanatory note accompanies the draft; and we are told that the practice direction (as proposed by the rules) is yet to be published. Ministry of Justice say that the practice direction will be consulted upon separately. Yes, they really do say that.

Part 3A starts with an ‘interpretation’ rule, which leaves out more than it says (and see ‘clarity’ (below)): for example:

  • The term ‘vulnerable person’ referred to in the title to Part 3A is not used again, still less is it defined; though it is implied by the concept of participation or evidence being ‘likely to be diminished’ (see eg rr 3A.4(1) and 3A.5(1)).
  • What is meant by ‘proceedings where a child is involved’ is not explained (eg is it as a witness, as a party, or any proceedings which concern a child; or is it 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? If something is ‘diminished’ it can only be by reference to something else (eg ‘The strength of my argument is diminished by your comments upon it)? The word ‘diminished’ can have no meaning in the absence of the qualifier ‘by’?
  • Ability to ‘participate in the proceedings’ (r 3A.2 and 3.A.3) is not defined: what proceedings? What does ‘participate’ mean in this context (eg is it the same as ‘involved’?)?
  • Is ‘case management’ meant to mean something different from the term as it applies in Civil Procedure Rules 1998 Part 3 and FPR 2010 Part 4?
  • ‘Intermediaries’ are one of the ‘measures’ promised to be available by the draft; yet this term is not defined and who is going to pay for these intermediaries?

The draft rules impose on the court a duty to consider whether (r 3A.2), and if so how (r 3A.3), a child should ‘participate in proceedings’. If a child is to participate r 3A.3(2) sets out the ‘case management’ directions which the court should consider and what these directions should contain.

Rules 3A.4 and 3A.5 move away from children, and consider the ‘participation’ and ‘evidence’ of a party to proceedings (presumably intended to apply to a ‘vulnerable’ individual), and whether this ‘is likely to be diminished’ (but by what? – see above). The rules set out what case management directions may be necessary.

Rule 3A.6 tells the court to what it must have regard when it considers making case management directions in relation to the previous three rules. Rule 3A.7 sets out ‘measures’ (referred to in earlier rules) for protection of the children or vulnerable parties or witnesses concerned (eg evidence by video link; assistance from an intermediary etc. Rules 3A.8 and 3A.9 asserts when the rules apply (‘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 (FPR 2010 rr 3A.10) in respect of a child or a party; but what does a witness, or child not a party do to activate the rules? A party applies under FPR 2010 Part 18 (r 3A.9(3)). Reasons for its decision must be recorded by the court (r 3A.11).

Ground rules: clarity, ‘simple expression’ and vulnerable persons

FPRC make the rules in exercise of its powers under Courts Act 2003 ss 75 and 76. Section 75(5) requires that any power to make these rules must be

(5) … 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.

If these amendment rules do not come up to that – admittedly subjective – standard, then they may be unlawful from the start. Section 75(5) broadly complies with Lord Bingham’s first rule of his ‘Rule of law’ ( that –

… the law must be accessible and so far as possible intelligible, clear and predictable. This seems obvious: if everyone is bound by the law they must be able without undue difficulty to find out what it is, even if that means taking advice (as it usually will), and the answer when given should be sufficiently clear that a course of action can be based on it.

Given that Part 3A’s main consumers will be ‘vulnerable’ individuals and some children, special allowance should be made for their understanding and difficult circumstances at the time of having to read and have ‘access’ to these rules. The new rules must not be drafted only for the understanding of lawyers.

Background and context for the rules

H v L and R [2006] EWHC 3099 (Fam) [2007] 2 FLR 162 emphasised how backward were some of their procedural rules for dealing with children and vulnerable individuals – known predominantly in most civil proceedings contexts as ‘protected parties’ and witnesses. In that case Roderic Wood J considered how he could protect X, a 20 year old who was to be cross-examined by the father of the child in the case (X’s half-sister) whom, X alleged, had abused her when she was nine. Said the judge, she –

[3] … was a borderline anorectic, and a suicide risk. Thus the question of by whom she should be cross-examined was of particular import, although I do not believe that the resolution of the issue of who should cross-examine such a witness in other cases is dependent on the existence of such features of vulnerability (both physical and psychological).

He examined how this was done in criminal trials including under Youth Justice and Criminal Evidence Act 1999 s 35 and concluded:

[25] I would invite urgent attention to creating a new statutory provision which provides for representation in circumstances analogous to the existing statutory framework governing criminal proceedings as set out in [YJCEA 1999]…. I can see no distinction in policy terms between the criminal and the civil process. Logic strongly suggests that such a service should be made available to the family jurisdiction. If it is inappropriate for a litigant in person to cross-examine such a witness in the criminal jurisdiction, why not in the family jurisdiction?

And that is where the law still stands in family proceedings.

Meanwhile, in the criminal courts cross-examination of vulnerable witnesses may be limited (YJCEA 1999 s 22; and see Criminal Procedure Rules 2014 rr 29.8-29.13, especially r 29.9). As Simon Heaney explains in Safety measures: vulnerable witnesses, [2015] June Family Law Journal at 7) and as Roderic Woods emphasises, civil and family lawyers trail a long way behind their criminal law colleagues.

The common law and the draft rules

The common law in 2015 bristles with judicial concern – especially House of Lords and Supreme Court – at any incursions into open court principles and exceptions to that principle (eg in relation to the giving of evidence: AG v Leveller (below) is a classic example). From Scott & Anor v Scott [1913] UKHL 2, [1913] AC 417 through Attorney General v Leveller Magazine Ltd [1979] AC 440 and R (ota Guardian News and Media Ltd) v City of Westminster Magistrates’ Court (Article 19 intervening) [2012] EWCA Civ 420, [2013] QB 618 to Kennedy v The Charity Commission [2014] UKSC 20 and A v British Broadcasting Corporation [2014] UKSC 25 exceptions to the common law open justice principle are explained. Children proceedings evidence may be covered by privacy rules (Administration of Justice Act 1960 s 12(1) and its jurisprudence); but evidence from vulnerable adults (see eg H v L & R and Lady Hale in Re A (above)) comes four-square within the ambit of open justice and where exceptions to the rule should apply.

If the common law open justice principle is to be altered for adults – the vulnerability of witnesses in some family proceedings surely cries out for this, as eg H v L & R shows? – then this alters fundamental rights of parties to proceedings. Fundamental rights can only be changed by express statutory provision (see eg R v Secretary of State for the Home Department, exp Simms [1999] UKHL 33; [2000] 2 AC 115 per Lord Hoffman) not by a rule. Some of the amendments proposed by the draft need statutory sanction.

Alsatianisation of family proceedings law and rules

In Richardson v Richardson [2011] EWCA Civ 79 Munby LJ said:

[53] The Family Division is part of the High Court. It is not some legal Alsatia where the common law and equity do not apply. The rules of agency apply there as much as elsewhere. But in applying those rules one must have regard to the context, and the relevant context here is the law of ancillary relief and, more particularly, as Mr Dyer has correctly said, the rules which apply where the question is whether an ancillary relief order should be set aside as between the husband and the wife’s estate. And in that context the relevant [rules of agency] are those to be found in the authorities [referred to earlier in this judgment].

‘Alsatia’ (Alsace was in the throes of the Thirty Years War at the time) was the name of a lawless area between Blackfriars, Fleet Street and the Thames (not far from the present Temple sets of chambers) where fugitives from the law in early seventeenth century London were said to be able to obtain sanctuary, and thus relief from prosecution.

The principles on which these new rules are based are partly derived from criminal proceedings; but in respect of civil proceedings generally the problems will apply there as well (as JX MX v Dartford & Gravesham NHS Trust & Ors [2015] EWCA Civ 96 shows, a case cited by Keehan J in Birmingham City Council v Riaz & Ors [2014] EWHC 4247 (Fam) (15 December 2014)).

It must make sense that all Divisions of the civil courts, the county court (now a single court) the Court of Protection and the bankruptcy courts all subscribe to, and incorporate into their respective rules, the new vulnerable individuals rules, rather than the family courts operating in their own Alsatia.


Letter to Editor, Family Law

Step one: work out how to pay your ‘intermediaries’

In ‘Safeguarding measures, intermediaries and vulnerable witnesses: foot notes from the trenches’ Gillian Geddes (‘GG’) discusses the proposed changes to Family Procedure Rules 2010 (‘FPR 2010’). She was writing before the draft rules – namely Family Procedure (Amendment No X) Rules 2015 ( were out. Their aim is to amend FPR 2010 by adding Part 3A – Children and vulnerable persons: participation in proceedings and giving evidence (‘Pt 3A’; and see ### update on this by David Burrows at [2015] Family Law ###).

GG deals only with a party whose participation is ‘likely to be diminished’ (as the draft rules term her client’s category: see Pt 3A r 3A.4):

Court’s duty to consider how a party can participate in the proceedings

3A.4.—(1) The court must consider whether a party’s participation in the proceedings is likely to be diminished and, if so whether it is necessary to make one or more directions in paragraph (2) to assist the party. ..

GG gives an example of one such party whose participation is diminished by her own disabilities. This must have been conducted under the current FPR 2010 case management rules (ie FPR 2010 rr 1.4, 4.1 and 12.12). GG’s article is illuminating on all this and shows how, already, the common law can respond to the sensitive handling of vulnerable witnesses. GG deals with an intimidated party’s ‘participation’ where she is said, according to Pt 3A, to be ‘diminished’. Alongside (1) intimidated parties, Pt 3A deals also with (2) children: their participation in proceedings and (3) their views; and (4) witnesses said to be ‘intimidated’.

The main part of GG’s article is to explaining how the ‘intermediary’ (per Pt 3A.7(1)) may be intended to work, by illustration from one case. Like FPRC she does not consider the effects on common law principles of what is proposed. Common law – and thus statutory – changes are inevitable.

FPRC’s powers are limited by Courts Act 2003 ss 75 and 76. The ‘measures’ proposed are likely to require primary legislation (and see eg closed material procedures, special advocates and public interest immunity: all implied by r 3A.7). Grubby things like how and by whom ‘intermediaries’ are to be paid, if by HMCTS, will certainly require primary legislation. Money and the implied in-roads into the common law (see discussion of this in eg Attorney General v Leveller Magazine Ltd [1979] AC 440 and Re A (Sexual Abuse: Disclosure) [2012] UKSC 60, [2013] 1 FLR 948) are clearly outside the rule-making powers of ss 75 and 76; and thus FPRC is left stranded.

‘Duty’ on legal representatives and Jaffray rule

My first worry relates to drafting detail. GG says as a fact that it is proposed that the overriding objective is to be amended to emphasise what she perceives as a new ‘duty’ on ‘legal representatives and litigants in person (sic)’ to identify the ‘intimidated’ (how the rules describe ‘vulnerable’, of parties and witnesses. As I read the draft rules, it is – on the contrry – the court which has this ‘duty’ (rr 3A.4(1) and 3A.5(1)). I will leave research into whether the FPRC can itself create extra professional duties for now; but I am as certain as I can be that for a rule committee to create duties for subjects of the Crown (ie LiPs) without primary legislation would be of dubious vires. I will say no more say that the Jaffray rule surely applies here (Jaffray v The Society of Lloyds [2007] EWCA Civ 586: rules cannot change the jurisdiction of the court, still less the law. Rules can only regulate procedure which delivers the law and justice.)

GG’s sources for her assertion are not stated, so pending revelation of the sources, this ‘duty’ must be treated with scepticism.

Extension of overriding objective

The FPRC meeting of 15 June 2015, when consultation and amendment drafting was fully considered, say of plans for overriding objective only:

Overriding objective

Judge [HHJ] 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.

The paper which accompanies the consultation Draft Amendments to Family Procedure Rules, in one of its specimen consultee questions on reads:

The Committee recognises that, as currently drafted, the overarching [sic] objective [at FPR 2010 r 1.1) does not refer to children. Some committee members have raised concerns that this is an omission and would like to see the overriding objective updated to reflect the need to consider children within proceedings. (a) Should the overriding objective be amended so as to emphasise consideration by the court of participation by children in proceedings?

This raises two separate points:

  • Law – Children Act 1989 s 1 (not mentioned here) seems to cover the law; and, for that matter, whatever a ‘code’ like r 1.1 says, the law remains the starting point.
  • Procedure – a child’s ‘participation in proceedings’ is the issue here; and that surely should be considered is at r 3A.3 where it belongs. It cannot be left to the aspirations of r 1.1 principles?

Intermediary and participation of a party in proceedings

The main part of GG’s article is a discussion of one ‘intermediary’ case (per Pt 3A r 3A(7)); but, in the current state of legal aid law and family proceedings practice, real questions on intermediaries and their funding must precede the lengthy discussion introduced by GG.

The term ‘intermediary’ and what they are to do is one of the ‘measures’ available to the court in (Pt 3A r 3A.7(1)(d) and (e)) under Part 3A. What an intermediary actually is, how s/he is defined and what s/he is expected to do is not defined. Much is covered already in various statutory, common law and regulatory guises. Why does specific provision need to be made for family cases? Well, of course, it doesn’t. All it does is to make life more complicated for courts and parties, where proper case management training for judges might resolve a lot of the points. They already have their required duties and a set of powers in FPR 2010 rr 1.4 and 4.1. How much of what is said of case management for adult witnesses and parties in Pt 3A is outside those case management rules?

Whatever ‘intermediaries’ are, most of them will require to be paid. Only three weeks before the FPRC meeting the Court of Appeal poured a heavy shower on Lord Chancellor funding (Re K & H (Children) [2015] EWCA Civ 543 (22 May 2015)). On the facts of that case ‘help for a party … to be questioned in court with the assistance of an intermediary’ (r 3A.7(1)(e)) cannot be funded by the Lord Chancellor (eg under Matrimonial and Family Proceedings Act 1984 s 31G(6), mentioned in r 3A.6(1)(i) as a case management matter).

Funding of intermediaries

In Re D (A Child)(No 2) [2015] EWFC 2, Sir James Munby P gave ‘guidance’ as to funding, says GG. Yes, he did; and in Suffolk County Council v The Mother and ors (reported as Re R (translation of documents in proceedings)) [2015] EWFC B112 HHJ Roberts, Family Court sitting at Chelmsford made an order for LAA funding (but – crucially, I fear – the judge overlooked the fact that the payer party (ie Legal Aid Agency (‘LAA’)) was not a party to the process and thus that her order (as far as I can see) had no foundation; and see eg On a related point: in Re M (A Child) [2015] EWFC 71 (04 August 2015), Sir James Munby P explains briefly how a vulnerable party was not even spotted by the court (or her advisers?) for (say) EDF legal aid funding (Legal Aid Sentencing and Punishment of Offenders Act 2012 s 10(3)); and she was unable to pay the costs of her proceedings. If, as GG says, the Court of Appeal did not overrule Sir James’s guidance in Re D – meaning, in law? – he does so himself in Re M (§[12]).

The scheme will not work if it is not funded. I beg everyone to put this in bold across their response to the consultation. Detail of what is needed for funding and what statutory changes this requires – in my opinion – will be set out in detail on my blog; but in the meantime all practising family lawyers should please try to learn by heart the words of Collins J in IS v The Director of Legal Aid Casework & Anor [2015] EWHC 1965 (Admin) at §[40]. Of the classic intermediary – special advocates (on instructions from the Attorney-General (Attorney General’s Memorandum of 19 December 2001 [2002] Fam Law 229 (FCP at 2923 is one of the few printed sources of this), closed material procedures eg where a witness might be ‘diminished by a violent parent/partner on disclosure of documents or police information (see eg Re T (Wardship: Impact of Police Intelligence) [2009] EWHC 2440 (Fam), [2010] 1 FLR 1048, McFarlane J); and limited forms of public interest immunity (but see Browning v The Information Commissioner & Anor [2014] EWCA Civ 1050 (30 July 2014): of all this FPRC says nothing. Anonymity may be implied by r 3A.7(1); but how much notice have FRPC taken of the issues which that calls into question, even in private proceedings: see eg Attorney General v Leveller (above) with its tight limitation by our open justice principle? What of the ideas put up by Lady Hale in the classic recent Supreme Court vulnerable witness case: Re A [2012] (above)?

And so the funding questions go on. A reply from the FPRC secretariat on what the Committee considered on costings, and of party funding, is awaited; and in absence of that a FoI request will be made. GG does not cost the lengthy exercise she describes nor tells us by whom the case was paid; or, indeed, whether the expenditure on lawyers was covered.

Costing of new legislation

Most statutory schemes must be costed. The consultation document says:

[10] The Committee acknowledges that court rules cannot provide a requirement or entitlement to funding as this is within the competence of Parliament. In addition the Committee has had some general advice from the MoJ and HMCTS as to what provisions are available. In relation to eligibility the rules have been drafted to avoid situations where a child or vulnerable party/witness does not get assistance as a result of being outside a more tightly drawn set of criteria….

I can see no evidence in the minutes of the committee being aware of any contact within Ministry of Justice with LAA on all this. FPRC considered endorsement onto the case management order of the court’s reasons for any decision (not what the X version says). A piqued Sir James is minuted as saying: ‘Orders should also record where a measure was needed but resources were not available to provide it.’ The draft rules do not say this either.

The draft is opaque to say the least. The minuted may explain a little what the FPRC members though they were doing; for the present draft r 3A.11(2) says:

(2) If a direction for a measure is considered by the court to be necessary but the measure is not available to the court, the court must set out in its order the reasons why the measure is not available.

It will be interesting to see what the final rules say. Will Sir James’s comment find its way into a practice direction, or someone’s case management judgment? And how is the court to know that resources are not available, especially in a Children Act 1989 Part 1 and 2 (‘private law’) case?

Without guaranteed funding – and this requires co-operation from the Lord Chancellor and the Treasury – I cannot see the intermediary aspect of all this taking off. The VW&CWG started by expecting to make one new rule to cover all this. Now they have 11. They need a good bit more, to help those whom family courts should be helping; and they need primary legislation.

The present draft will not butter many intermediaries’ parsnips (especially where they are lawyers). And without funding, most of the ‘measures’ (Pt 3A r 3A.7(1)) which involve intermediaries will remain still-born (save for Munby P’s endorsement of ‘no money to pay an intermediary’ on his order). That helps no ‘intimidated’ witness.

A clear definition of what an intermediary is, some statutory provision to confirm departure from the common law and open assertions on state funding: this would be a good start. It remains a ‘start’, since on the sine qua non of funding, FPRC cannot be said even to have reached ‘Go’.


Hearing from children and vulnerable witnesses in the family courts: working group

Current procedural reforms in the family courts and the Court of Protection are looking in particular at three issues; though not necessarily with any real sense of the interrelation of the three:

• The treatment of ‘vulnerable witnesses and children’
• ‘Transparency’ (by which is meant the extent to which proceedings in the courts should be held in private); and
• Legal aid.

Each subject is interdependent and should be of concern to both courts. That which is of immediate concern to the courts’ administrators – who are also in many instances also the judges of the court – is that of ‘vulnerable [and intimidated] witnesses and children’. The two – or three even (as explained below) – separate subjects are bracketed together, though each raise different questions; and, surely, they require different solutions? For example where children are parties to proceedings legal aid will not be an issue; whereas for many ‘vulnerable’ individuals legal aid will by no means be guaranteed; and for ‘intimidated witness’ there may be a call for the Attorney-General to be involved.

A working group (chaired by two judges) set up by Sir James Munby P has recently reported on these two subjects: Report of the Vulnerable Witnesses and Children Working Group February 2015 (published in March 2015 by Judiciary of England and Wales). The Group accepted its own ‘conclusions’ (yes really – para [27]). It proposes a draft set of rule changes which it commends to the Family Procedure Rules Committee (‘FPRC’).

The interim report of the working group can be found at . My own response to that interim report is at .

The report

The report combines judicial concerns in relation to children meeting judges in the family courts and – which is not necessarily the same thing (as the report stresses) – children giving evidence in court; and the need ‘to address the wider issue of vulnerable people giving evidence in family proceedings’. The report draws attention to practices in the criminal courts where – as Roderic Wood emphasised in H v L and R [2006] EWHC 3099 (Fam) [2007] 2 FLR 162 – the rules and prevailing procedures are much more appropriate to children. It singles out the illuminating comments on children evidence of Lord Judge LCJ in R v Barker [2010] EWCA Crim 4 at paras [38] to [43]. (It is difficult to suggest a more helpful starting point for the Group’s work than what was said by Lord Judge.)

The report points out (para [10]) that ‘particularly in public law’ (sic) the adults as well as the children ‘are frequently “vulnerable witnesses”’ (a cross-reference is given here which leads nowhere’; yet no attempt is made in the text of the report or in the draft rule to define what is meant by this. For example reference is made (at para [13]) to the recent 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; yet the issue in that case was not the particular vulnerability of a witness but the appropriateness of a judge cross-examining a witness for the father applicant and the funding of an advocate to carry out that examination for the court (Matrimonial and Family Proceedings Act 1984 s 31G(6)(b)).

Did the Working Group intend to look at the particular funding issues which Re K and H throws up? ‘Funding’ is touched upon as ‘a matter of concern and some controversy’ (para [20]). Its ‘ad hoc’ nature is said to be ‘unsatisfactory’. But no recommendations are made by the Group as to how funding controversies might be resolved in the particular instances which arise; and, for example, no reference to the role which the Attorney-General (looked to by Roderic Wood J in H v L) might perform in assisting the court.

The Group reviews the existing guideline for judges in seeing children and finds them to be flawed. They point out (para [24]) the importance of distinguishing between the fact that the judge is not intended to gather evidence; but should consider their wishes and feelings. So, says the Group, ‘There is a need for the evidence of children and young people to be put before the family court as it would be in criminal proceedings’ ([26]). The report concluded on this subject:

It is the view of the [Group: WG] that the Family Court has fallen behind the criminal courts in its approach to their evidence…. Those young people that the WG heard from do not expect, or even want, the judge to do as they say; they want to know that they have been listened to and this perceived (and in many cases actual) defect cannot be cured with by meeting the judge or tribunal alone if at all. To hear a child must mean to hear her or his evidence and if the child/young person is not going to give oral evidence there must be provision for their evidence to be heard as directly as possible without interpretation by the court appointed officers or others.

Of terminology: the Group preferred to retain its existing terms – ‘children’ and ‘vulnerable witnesses’, with addition to the latter of ‘intimidated witnesses’ ([30]). This means incorporating into any definition to what the proposals are intended to cover as a ‘witness’ includes a party, and may involve witnesses who are examined for the court (as in Re K and H). It will involve FPRC is a careful definition of terms (a question which the Group’s drafting has so far evaded: its draft rule has no definition of to what the rule is addressed and as to exactly when it will apply (para [35](v)).

Rule changes

Given the nature of the subject-matter the FPRC are urged to recall their pre-eminent statutory requirement (as set out in Courts Act 2003 s 75(5)): that their rule making powers should be used in such a way as to set out rules which ensure that ‘(a) the family justice system is accessible, fair and efficient, and’ that ‘(b) the rules are both simple and simply expressed’. Quite apart from its poor grammar, the present draft is not by a standard which most lay readers (and indeed many lawyers) would understand ‘simple or simply expressed’. For example, the long sentences seem to leave its own drafter confused; it does not define what is the meaning of the subject matter: namely (1) ‘vulnerable witnesses’, (2) ‘children’ (which will not be the same as the definition in Children Act 1989 s 105) and ‘intimidated witnesses’; and it leaves important matters vague ‘such other matters which appear to the court to be relevant’ (draft r 3B.1(3)(d)). (One of the great advances with the drafting of Civil Procedure Rules 1998 was short sentences and a number of one sentence rules. The drafting of the proposed Family Procedure Rules 2010 Part 3B goes back to an earlier unreconstructed period of rule drafting.)

It is sincerely to be hoped that the present drafters of the [35](v) will carefully reconsider their draft and reframe it with simplicity, clarity and aptness to the subject matter in mind. The words of Lord Judge LCJ at [38] in R v Baker (above) provide an excellent starting point.


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

The consultation document can be found at

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.


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


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.


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)


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.


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.


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.


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 ###.


  • 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 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.


  • 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 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?


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] response by 3 October 2014

[2] ie broadly within the terms of the Cabinet office guidance on consultation documents of 5 November 2013

[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;

[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’


[26] eg report in Independent of 5 October 2014


Funding family proceedings

In Q v Q (No 2) [2014] EWFC 31 (06 August 2014), Sir James Munby P considered, amongst other things, the extent to which certain family litigation seemed to him to demand that particular litigation expenses be paid for by state funding (and see ). An earlier hearing in Q is reported as Q v Q [2014] EWFC 7 (and see for comment on complexity of family proceedings, legal aid and the earlier Q v Q). This raises questions as to whether the court has power to order funding from another public body (eg Ministry of Justice which is responsible for HM Courts and Tribunal Service (HMCTS) and Legal Aid Agency (‘LAA’)): and if so how individuals might be entitled to such funding apply for it.

If the court or any other agency has no power to arrange funding, are any indirect powers available to the court to enable a case to be funded? For example, in a case considered by Sir James (H v L and R [2006] EWHC 3099 (Fam) [2007] 2 FLR 162) the judge, Roderic Wood J, was able to ask the Attorney-General to instruct an advocate to cross-examine (in place of an alleged sex offender) the young woman witness who accused him of abuse.

Funding or costs; and of what

In any consideration of legal aid and costs the following need to be distinguished:

(1) Funding and costs (and see ) – Funding is what must be found to pay for a case (often in advance). Costs is what a party may be ordered to pay to another party at the end of the case (governed by Senior Courts Act 1981 s 51).

(2) Expenses and lawyers remuneration – The funding aspects of the cost of a case contains two components: (a) payment for legal representation (income for lawyers, also called ‘remuneration’: eg Civil Legal Aid (Remunerations) Regulations 2013) and (b) payment of the expenses in the case (eg court fees, witness expenses, expert’s fees, assessment of parents etc).

Legal aid concerns the funding of proceedings; and mostly (when granted) covers both expenses and remuneration for lawyers.

Recent case law

Recent Court of Appeal and High Court judge judgements resolve themselves into two main categories:

(1) Those where the issue before the court on judicial review was the lawfulness of a LAA decision, or failure to decide:
• R (on the application of T) v Legal Aid Agency & ors [2013] EWHC 960 (Admin), Collins J (26 April 2013) – LAA decision to limit expenditure on assessment quashed
• M v Director of Legal Aid Casework & Ors [2014] EWHC 1354 (Admin), Coulson J (2 May 2014) – LAA decision on merits criteria unlawfully applied (case of information disclosure to CPS) remitted for reconsideration
• JG v Lord Chancellor and ors [2014] EWCA Civ 656 (21 May 2014) – LAA decision not to fund expert’s fee declared unlawful
• Gudanaviciene v Director of Legal Aid Casework and the Lord Chancellor [2014] EWHC 1840 (Admin) (13 June 2014), Collins J (decisions to refuse (in immigration cases) quashed
• R (ota The Public Law Project) v The Secretary of State for Justice, the Office of the Children’s Commissioner (intervener) [2014] EWHC 2365 (Admin) (15 July 2014), Divisional Court consisting of Moses LJ, Collins, Jay JJ) – residence test in 2014 amendment Order illegal

(2) Those where judges have made comment on the non-availability of legal aid funding, but where their comments are obiter and not decisive of any issue before the court:

• Re Jones (Alleged Contempt of Court) [2013] EWHC 2579 (Fam), Sir James Munby P
• Kinderis v Kineriene [2013] EWHC 4139 (Fam), Holman J
• Q v Q [2014] EWFC 7, Sir James Munby P
• Re AB (A Child: Temporary Leave To Remove From Jurisdiction: Expert Evidence) [2014] EWHC 2758 (Fam), HHJ Bellamy sitting as a High Court Judge
• Q v Q (No 2) [2014] EWFC 31 (06 August 2014), Sir James Munby P

If the above are representative of the present position of the case law in relation to legal aid then the decisions made by the courts relate only (and this is probably all that they can do) to reversing LAA decisions, or otherwise sending back LAA decision-maker’s decisions to them for reconsideration. The exception to this is ota PLP, which is known to be under appeal.

By contrast the decisions under (2) above (and a lot of the comment in the cases in (1)) represent the views of judges (mostly supportive of a legal aid scheme); but it does not change the underlying statute law.

Funding of the cases in Q v Q (No 2)

Q v Q (No 2) is in the second group of cases. The matter which was of concern to the President was whether justice could be done in any of three cases if certain legal expenses and remuneration for one or more of three fathers (‘F’) was not covered by legal aid. In Q v Q the father is a convicted rapist and speaks no English; F in Re B is alleged by the mother to have been raped by him, which he denies; and F in Re C awaits trial (as at 6 August 2014) on charges – denied by him – of rape of the mother. Sir James was asked to make case management decisions on the case (the issue before the court); and in the course of so doing, he made a variety of comments on funding positions of the respective fathers. These included that the state should (could?) be required to fund aspects of the case. The purpose of this article is to seek to identify to what extent and how this can be done. In various ways legal aid had been limited or denied; but the issue of any LAA decisions was not before Sir James on the day of the case management hearing.

Public funding outside the legal aid scheme

The grant of funding by the tax-payer, in general terms and subject to points considered below, is a matter for statute law alone, starting from Legal Aid Act 1949. It is not open to the common law to make provision in advance for funding of litigation (save in the case of costs allowances in certain family proceedings). There is very little scope, in any event, for funding of private cases by another party to proceedings. Indeed one of the few statutory provisions for other party funding is provided for in LASPOA 2012 ss 49-51 (by amendment to Matrimonial Causes Act 1973). These provisions are part of LASPOA 2012 Part 2, which do make certain provision for private funding of cases (eg success fees and damages based agreements for costs); but there is no statutory provision for private or public funding by courts (beyond Matrimonial Causes Act 1973 s 22ZA (legal services orders)) in Part 2.

Sir James’s discussion (starting at para 46 in Q v Q (No 2)) for court awarded public funding from HMCTS starts from the premise that the court is a public authority (Human Rights Act 1998 s 6(3)(a)). It is prevented from acting in a way incompatible with European Convention 1950 (HRA s 6(1)). European Convention 1950 Art 6 guarantees the right of practical and effective access to the court; and in the case of a litigants in person whether this is achievable without legal assistance (Airey v Ireland (1979) 2 EHHR 533) (para 48). It is the court which decides whether appointment of an expert is necessary (CFA 2014 s 13(6)); and if their attendance at court is required then it may be for the court to bear the cost (paras 56 and 57). Similarly, if legal representation is needed for the court to discharge its duty under MFPA s 31G(6), then appropriate representation must be provided at the expense of HMCTS (paras 69, 79).

If this is to done then tax-payer’s money must be found. Judges have no budget of their own. And there is a mass of statutory material (LASPOA 2012, delegated legislation and ministerial guidance) providing for such public funding as the present Government are prepared to allow. (Such legal aid as there is and the extent to which LASPOA 2012 s 10 (exceptional case determinations) applies is for separate consideration.) Against this back-ground it is not obvious how, in the absence of enforceable common law provision, funding by HMCTS is to be achieved.

Three indirect possibilities suggest themselves and, subject to the need for much more research, are put forward here:

(1) Application direct to HMCTs for funding

The logic of Sir James’s judgement is that if certain conditions as to means, merit and lack of alternative funding (private or legal aid) are met, then application can be made direct to HMCTS, perhaps by reference to the family court office in which the case is proceeding.

On Sir James’s suggested approach, merit would probably be dictated by the terms of case management directions. With those directions the applicant would then have to show (a) that s/he had no source of private funding; (b) that legal aid was not available; (c) that the judge had directed assistance and (d) that his/her means – perhaps by reference to a legal aid means determination (Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013) – justified assistance.

It would be for HMCTS to identify a fund from which payment could be made; and if they refused judicial review of their decision would lie (as against LAA but with no statutory back-bone for the applicant) to the Administrative Court.

An inevitable question which then arises is: does Q v Q (No 2) and Sir James’s obiter comments, alongside the existing scheme – however that scheme may be perceived by judges – create any form of legitimate expectation that funding will be provided by HMCTS? This area requires much further research. The President of the Family Division has an administrative function; but in that function does not lie the spending of taxpayer’s money. It is unlikely that, constitutionally, he can be said to be in a position legitimately to raise an actionable expectation. In general (see eg de Smith’s Judicial Review (7th Ed) Woolf et al Chapter 12) a legitimate expectation requires a decision-maker to have given the applicant a clear expectation that s/he will receive a benefit from a scheme or decision. A hope is not enough. This seems unlikely to be a fertile area for consideration, but it must be born in mind.


SCA 1981 s 70 (and an equivalent provision for county courts in in County Courts Act 1984 s 63) enables the court to appoint assessors:

70 Assessors and scientific advisers.
(1)In any cause or matter before the High Court the court may, if it thinks it expedient to do so, call in the aid of one or more assessors specially qualified, and hear and dispose of the cause or matter wholly or partially with their assistance.
(2)The remuneration, if any, to be paid to an assessor for his services under subsection (1) in connection with any proceedings shall be determined by the court, and shall form part of the costs of the proceedings.

FPR 2010 r 25.20 (tacked on at the end of the rules on expert evidence) explains how this is done; though application of ss 70 or 63 in the family court is not as clear as it might be. The assessor could be a person whose opinion – including decision-making – might assist the court. Their role in many ways would not be dissimilar to that of a jointly funded expert. The issue of costs remains (s 70(2)) above; but so far as the court has power to award costs against a third party (SCA 1981 s 51(3)), perhaps it could order assessor’s costs from public funds.

So far as I know this has not been done in family proceedings. If a way of funding the assessor direct from HMCTS can be found there is no reason why it should not be attempted.

Attorney General

In H v L and R [2006] EWHC 3099 (Fam) [2007] 2 FLR 162 Roderic Wood J and the Attorney General arranged for an advocate to the court to be appointed for the father limited to cross-examine a vulnerable witness for the mother. That was dealt with under the Attorney General’s Memorandum of 19 December 2001 [2002] Fam Law 229 (see eg Family Court Practice 2014 at 2869). This remains basis on which the Attorney General becomes involved in appointment of an advocate to the court.

The memo deals with appointment at paras 3-8, and in particular it stresses that and advocate to the court ‘represents no one’ (para 4); so that his/her role is limited to that professionally adopt by him/her not on instructions from any party. Request is made by the court to the Attorney General (para 9) or to the Official Solicitor to appoint an advocate (para 11-12). It is for the Attorney General to decide whether assistance will be provided and on what terms (para 10).