Sir James Munby, President of the Family Division, has circulated the Interim Report of the
Children and Vulnerable Witnesses Working Group for consultation, discussion and comment. Any observations should be sent to his Assistant Private Secretary, Jo Wilkinson, by email to
Joanna.wilkinson@judiciary.gsi.gov.uk.
1. Introduction and aims: The Working Group (WG) (headed by Hayden J
and Russell J[1])
was set up by Sir James Munby, President of the Family Division with the
following aims which were set out in the
12th “View from the President’s Chambers” published on 4th June 2014:
‘First, it is time to review the Family Justice Council’s
April 2010
Guidelines for Judges Meeting
Children who are Subject to Family Proceedings
[2010] 2 FLR 1872,
particularly in the light of the Court of Appeal’s recent decision in
Re KP (Abudction: Child's Objections)
[2014] EWCA Civ 554, [2014] 2 FLR (forthcoming and reported at [2014] Fam Law
945).
Secondly, it is time to review the Family Justice Council’s
Working Party’s December 2011
Guidelines in
Relation to Children Giving Evidence in Family Proceedings
[2012] Fam Law
79. Those Guidelines were prepared following the decision of the Supreme Court
in
Re W (Children) (Abuse: Oral
Evidence)
[2010] UKSC 12, [2010] 1 FLR 1485. Since then we have had the
decision of the Supreme Court in
Re LC
(Reunite: International Child Abduction Centre Intervening)
[2014] UKSC 1, [2014]
1 FLR 1486.
Thirdly, there is a pressing need for us to address the
wider issue of vulnerable people giving evidence in family proceedings,
something in which the family justice system lags woefully behind the criminal
justice system. This includes the inadequacy of our procedures for taking
evidence from alleged victims, a matter to which Roderic Wood J drew
attention as long ago as 2006:
H v L and
R
[2006] EWHC 3099 (Fam), [2007] 2 FLR 162. As HHJ Wildblood QC
observed in
D v K and B (By Her Guardian)
[2014] EWHC 700 (Fam), [2014] Fam Law 1094, para 6(ii), processes which we
still tolerate in the Family Court are prohibited by statute in the Crown
Court. We must be cautious before we rush forward to reinvent the wheel. A vast
amount of thought has gone into crafting the arrangements now in place in the
criminal courts: see for example, in addition to the Criminal Procedure Rules,
the Criminal Practice Directions [2013] EWCA Crim 1631, CPD 3D-3G, the Judicial
College’s Equal Treatment Bench Book, Lord Judge’s Bar Council Annual Law
Reform Lecture 2013,
The Evidence of
Child Victims: the Next Stage
, the Criminal Bar Association’s DVD, A
Question of Practice, and the relevant ‘toolkits’ on ‘The Advocate’s Gateway’,
funded and promoted by the Advocacy Training Council:
www.theadvocatesgateway.org/toolkits. We need to consider the extent to which
this excellent work can be adapted for use in the Family Division and the
Family Court.’
2. In
respect of the first aim the President proposed that there should be reform and
further guidance of the procedure for judges communicating with children, which
will provide the framework to allow a recognition of the place of children and for
the “Voice of the Child” to be heard in all family court proceedings in which
children are involved; and it anticipated a ministerial announcement on the
subject.[2]
3. The
second and third tasks are intertwined. As can be seen from the guidance already
available for criminal cases in the
Advocate’s
Gateway
toolkits - children are self-evidently “vulnerable witnesses”.[3]
4. Preliminary observations: As observed by the President the family
courts and the advocates who appear in those courts lag behind the criminal
justice system both in their approach to, and provision for, vulnerable
witnesses. To reproduce or to duplicate the comprehensive and outstanding work
done by the Advocates Training Council (ATC) and others contained in their
report published in 2011, would simply lead to further delay when the intention
is to build on the work that has already been done. The working group set up by
the ATC in 2009, which produced the report in 2011, met over 20 months and
heard from diverse bodies, individuals and experts in various disciplines
connected with the subject of vulnerable witnesses, including intermediaries, child/adolescent
psychiatrists, members of the judiciary, officials from the Ministry of Justice
and the Crown Prosecution Service, police officers and social workers. Their evidence-based
and consultative approach ensured that their Report and its recommendations
have a sound factual and expert basis, and which broadly apply to the family
justice system and on which we should build.
5. The
application of the principles contained in the report has proved to be
successful in the criminal justice system, and it is that practical application
which this working group will adapt to use in the family justice system. In
particular, the provision of training for advocates and support for witnesses
who are in need of support to give their evidence. These two have substantial
benefits; the optimisation of conditions in which the best evidence can be
given and the more effective and efficient use of court time. Both of those
benefits coincide with, and militate for, a greater likelihood of a fair and
just hearing and outcome for all the parties in each case.[4]
6. The
practical application of the work of the ATC to the family justice system is
already underway in the form of general guidance for family lawyers and
advocates being prepared by the
Advocates’
Gateway
as a toolkit for use in family proceedings. The guidance is in
draft form and is due to be published this autumn (October 2014). Should the
reforms suggested below be put in place the membership of Penny Cooper and
Joyce Plotnikoff on this WG will assist in any modification or amendment to the
family advocates toolkit as they are both instrumental in producing the
guidance for the ATC.
7. In
addition some judges have already taken steps to use assist vulnerable
witnesses of their own initiative[5];
the use of intermediaries and of the pre-recorded oral evidence have been
examples of provision of support that has been brought to the working groups
attention. This further illustrates the need for the introduction of procedure
and practice across the family justice system to provide for a fair hearing,
allowing those who are parties, both children and adults to be able to
participate in the hearing in a manner that best meets their needs by ensuring
that the evidence they give is the best evidence achievable.
8. Work so far undertaken: The working group held its first meeting on
8
th July 2014. The WG discussed the terms of reference and the
time-table for taking the work of reform forward. The consultative process will
not be as wide as that undertaken by the ATC working party as there is no need
to duplicate their work. Once the framework for reform has been identified and
provisional documents have been prepared they will be sent out for consultation
by as wide a constituency as possible (see below). The proposed rule change/s
will go to the Family Procedure Rule
Committee (FPRC) in late October, as the
aim is to have changes in place by the beginning of 2015 (see below –time
table).
9. “Vulnerable
witnesses”: discussion.
There was discussion regarding the use of the term
“vulnerable witnesses” and whether another description should be used. There
was concern that the term brought with it implications of physical or medical
vulnerability to the exclusion of other disadvantages or need for support for
witnesses.
10. The WG considered whether it may be necessary
to focus on reform in public law and on private law cases involving domestic
abuse where the difficulties maybe most acute; for it is evident that the
respondent parents in care cases are often vulnerable[6]
(many with mental health or learning difficulties and the rising number of
parents who need translators/interpreters to participate in proceedings) or the
potential unfairness in cases where the victims of abuse are being
cross-examined by their abuser where public funding is no longer available for
respondents[7].
11. The review of the guidance for judges seeing
children will take place along side the preparation of reforms and guidance for
vulnerable witnesses (and others) and
children as witnesses.[8] The review will include the
Family Justice Council (FJC) guidance in respect of
children giving evidence.[9]
12. On 22nd July 2014 Russell J had a
very constructive meeting with Haddon-Cave J (who had chaired the working group
which prepared the 2011 report on vulnerable witnesses referred to at
4 above) and Green J (who Chairs the
ATC). The ATC is open to providing such guidance/toolkits and training for
advocates in the family courts as is identified by the WG going forward. There
will be a further meeting in respect of this in late September or early October
2014.
13. Proposals
& Initial recommendations:
Following this initial work the following
recommendations as to the progress of reform are made; these reforms are
contiguously aimed at equipping judges to indentify and handle vulnerable
parties and witnesses and equipping advocates to handle and question such
parties and witnesses;
i. That the
reforms should apply to all family court cases from the outset.
ii. There should be a new mandatory rule in
respect of Children and Vulnerable Witnesses and Parties supplemented by
practice directions (PD) and guidance approved by the President.
iii. The term vulnerable witness should remain in
use as it is not desirable for the family court procedure to become distanced
or uncoupled from the practice and procedure as it has developed in the
criminal justice system. The term needs to be extended to cover the parties as
well as witnesses.[10]
iv. The rule/s should be inserted in the Family
Procedure Rules 2010 (FPR) (as amended)
at the earliest point of the rules to emphasise the importance of the role of
the child and the need to identify the necessary support /special measures for
vulnerable witnesses and/or parties from the start of any proceedings, or at
the earliest opportunity.
v. There should be a new Part 4 to the FPR.
vi. The rule should require that court/judge
will recognise the role of the children and/or needs of children at the outset
of proceedings either as participants in proceedings who should be given the
opportunity of communicating with the judge; and/or as witnesses and consider
the how best to provide for their participation and support.
vii. The rule should require that the court/judge
will identify whether a party or witness is vulnerable at the outset of the
proceedings or their involvement in proceeding (which ever is the sooner) and make
provision for such support, special measures or other assistance they may need
to properly and fully participate in the proceedings and to give best evidence;
viii. The rule should require that the all the advocates
and representatives of the parties must
identify and consider how best the role of the child is to be recognised
and/or provide for such assistance and support they need to give best evidence.
ix. The rule should require that all advocates
and representatives of the parties must identify if a party or witness is
vulnerable and consider how best he or she can be supported and assisted to
give best evidence.
x. There should be a requirement in the same
terms for Litigants in Person.
xi. There should be a practice direction (4) based on the FJC guidance for
judges seeing children, which reflects the Court of Appeal’s decision
Re
KP
[2014] EWCA Civ 554, gives
consideration to the provisions of the Charter and the experience of the
judiciary.
xii. In addition there should be consideration of
the status and nature the contents of the communication between judge and
child.
xiii. The procedure, practice and guidance for provision
of special measures, support and/or assistance for vulnerable parties or witnesses;
including children to give their best evidence should from part of the existing
PDs where possible; such as by amendment of the Public Law Outline or Child Arrangements
Programme.
xiv. The rule and practice direction should be
drafted with reference to the existing Special Measures Directions In the Case
of Vulnerable and Intimidated Witnesses, and the procedure and practice that have
developed in the criminal courts pursuant to the 1999 Act and the work of the
ATC.
xv. Particular consideration should be given to
the provisions for parties and witnesses in cases of forced marriage (FM) and
female genital mutilation (FGM). In FM cases nullity hearings are in open court
when the protected person is a vulnerable witnesses who is likely to have to
give evidence of a most intimate and sensitive nature. In FGM cases the child
and/or other witness are most likely to need support and special measures for
the same or similar reasons and such support and assistance should be provided
by the judge, court and advocates.
xvi. The new rule and PD and amendments to the
existing PDs should be drafted by the WG in consultation with the FJC (with its
interdisciplinary membership), FJYPB, the judiciary and the drafts sent for
wider consultation to MoJ and HMCTS.
xvii. The rule
change should be implemented by way of training for the judiciary and advocates.
xviii. Training
for the judiciary should be in the form of an additional module during
Judicial College training for Public and Private
Law and online material both in respect of judges seeing children and regarding
vulnerable witnesses.
xix. Advocates should be expected to attend for
additional training (as criminal advocates did); the ATC will provide
additional and specific guidance for advocates in family cases as part of the
toolkit.
xx. The WG should identify the training and
guidance needed in order that the ATC provide it. The WG should seek the
assistance of practitioners’ groups in developing the areas of training and
guidance.
14. Timetable: It is the aim of the WG that the rule change will be in place by
January 2015. Proposed rules will have to go the FPRC by the end of October
2014 to adhere to the proposed timetable. The WG is due to meet in early
October when the draft rules can be discussed.
15. Consultation: In his view the President said:
“The Working Party will need to
build on the experiences of judges in the Family Division and the Family Court
who have had to deal with these issues, particularly in the more recent past.
But it is also vital that the Working Party taps into and incorporates in its
thinking both the highly relevant and thought-provoking views of the Family
Justice Young People’s Board and the inter-disciplinary expertise of the Family
Justice Council.”
16. Judicial
Liaison:
Hayden J will liaise with Family Division
Judges and consult with them on
both aspects of work being undertaken, children and communication with the
judges hearing their cases and making the decisions about them; and vulnerable
parties and witnesses.
17. Preliminary consultation as set out above will take place through the
FJC (including with expert members of the Council) on the drafts after that
meeting with wider consultation taking place afterwards when more refinement of
the drafts has taken place.Russell J to liaise with FJC and arrange consultation with FJC experts.
AH
& AHR
July 2014
Appendix I
Membership
of the Working Group
The Hon Mr Justice Hayden
The Hon Ms Justice Russell
Luke Berry (FJYPB)
Her Honour Judge Sally Cahill QC
Melanie Carew (Cafcass Legal)
Alex Clark (Office of PFD/Secretary FJC)
Professor Penny Cooper (Advocates Gateway)
Rhian Davies (Cafcass Cymru)
Marie Gittins (FJYPB)
His Honour Judge Clive Heaton QC
Caroline Little (FJC solicitor)
Joe Murphy (MoJ)
Rebecca Musgrove (FJYPB)
Joyce Plotnikoff (Advocates Gateway)
Greg Watkins (HMCTS)
Malek Wan Daud (FJC barrister)
Jo Wilkinson (Office of PFD)
Acknowledgements
In
addition to the members of the working group the authors would like to thank
the following for the time and assistance they have given:
Mr Justice Haddon-Cave
Mr Justice Green
Professor Penny Cooper
Melissa Elsworth
Appendix II
Bibliography
of some suggested source material
Legislation/Guidance
Children (Admissibility of Hearsay Evidence)
Order 1993
Children
Act 1989
Children
Act 2004 (Part 2)
Coroners
and Justice Act 2009
Equality
Act (Disability) Regulations 2010
Equality
Act 2010
Family
Law Act 1996
Protection
from Harassment Act 1997
Criminal
Justice and Court Services Act 2000 (CAFCASS)
Family
Justice Council (2011) ‘Guidelines in Relation to Children Giving Evidence in
Family Proceedings’
http://www.judiciary.gov.uk/wp-content/uploads/JCO/Documents/FJC/Publications/Children+Giving+Evidence+Guidelines+-+Final+Version.pdf
Matrimonial and Family Proceedings Act 1984
Family
Procedure Rules 2010
Human
Rights Act 1998
Youth
Justice and Criminal Evidence Act 1999
