Family lawyer organisation, Resolution, has issued two joint notes to assist family lawyers in England and Wales ahead of the end of the Brexit transition/implementation period at 11 pm on 31 December...
The role of children
and young people - the key here; how to ensure the voices of children and
young people could be brought further to the fore in the family courts in a
similar manner to criminal cases.
and parties - the need for a more effective and fairer approach to
vulnerable and intimidated witnesses as seen in criminal cases together with
the use of toolkits in order to assist advocates maintain best practice.
Funding - the
issue of funding intermediaries and for the representation of vulnerable
parties continues to be a matter of concern and controversy. If access to
justice for vulnerable parties is not to be denied, this is a matter for urgent
review and clarification.
The conclusions from the Interim report remain largely
unaltered, and although the report is ‘final’ there will actually be another
one to look out for by the end of July 2015 which will focus on best practice
in evidence gathering from children and young people.
The recommendations from the final report are:
1. The term 'vulnerable witnesses' should still be used however should be extended to
include intimidated witnesses as it does in the criminal court.
2. Reform needs to focus on public law
and on private law cases involving domestic abuse where the difficulties are
most apparent. In all family proceedings the lack of appropriate support and
assistance for witnesses, whether they are parties, the children and young
people or interveners would amount to a denial of justice.
3. There should be two new Practice
Directions (to be known as PD 3D and PD 3C) to stand alongside the new
mandatory rule previously recommended. PD 3C will replace the 2010 Guidelines
for judges seeing children and will reflect the Court of Appeal’s decision in Re KP  EWCA Civ 554. PD 3C
will include provisions setting out the status of the communication between
judge and child; including when any meeting should take place; the persons who
should be present and the purpose of any meeting.
PD 3D will make provision for
the identification of vulnerable and intimidated witnesses and the arrangements
to be put in place (such as the pre-recording of evidence).
4.The PDs should explicitly reference and approve
the Advocate’s Gateway (TAG) following the procedure in the Criminal Practice
5.There should be Open Days held at the family
courts to increase public access and allow members of the public, including
children and young people to see what is happening. Each Designated Family
Judge should nominate a judge within their court to deal with and encourage
ways of the public and schools having access to the courts and judges on the
6.Modernisation and reform must include the direct
evidence of children and support for the evidence of children to be heard at
the youngest age appropriate for each child; including children of pre-school
age. There must be provision for their evidence to be heard as directly as
possible without interpretation by the court appointed officers or others.
7.There should be a new mandatory rule in respect
of Vulnerable and Intimidated Witnesses/Parties and Children supplemented by
practice directions and guidance approved by the President.
8.The new mandatory rule will be inserted in the
Family Procedure Rules 2010 (as amended) as rule 3B after the existing rule 3
(which will then be known as rule 3A). The rule will:
– emphasise the importance of the role of the child
in proceedings and the need to identify the necessary support and special
measures for vulnerable witnesses or parties from the earliest opportunity;
– be part of the over-riding objective and a
reference to it will be include in rule 1 at FPR 2010 r1.1(2) (d) (for the full
draft rule see Appendix III);
– require that court considers the role of the
child or young people and how best to put their direct evidence before the
court. The application of the new PD 3C regarding the court seeing the child or
young people will be considered at the outset of proceedings;
– require that the court to identify whether a
party or witness is vulnerable at the outset of the proceedings or as soon as
they become involved and make provision for any support, special measures or
other assistance they may need to give best evidence;
– require that the all the advocates and
representatives of the parties must identify if a party or witness is
vulnerable or intimidated and consider how best he or she can be supported and
assisted to give their best evidence 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.
9.There should be a requirement in the same terms
10.There should be training for all family judges
in seeing children in the form of an additional module during Judicial College
training for Public and Private Law and online material.
11.The Public Law Outline or Child Arrangements
Programme should be amended to ensure 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.
12.The rule and PDs will be drafted with reference
to the existing Special Measures Directions In the Case of Vulnerable and
Intimidated Witnesses and the Criminal Procedure Rules for ground rules
hearings, due to be published in April 2015.
13.The new rule and PDs and amendments to the
existing PDs should be drafted in consultation with the FJC, FJYPB, the
judiciary and the drafts sent for wider consultation to MoJ and HMCTS.
14.Particular consideration should be given to the
provisions for parties and witnesses in cases of forced marriage and female
genital mutilation who are likely to be vulnerable witnesses requiring support
and special measures.
15.Training of advocates is already in place and
will go forward under the ATWG (Family) lead by Newton J.
The Working Group want the rule change to be in place when
the Rules Committee can consider such changes later in spring 2015.
They will prepare a further report to make
recommendations as to best practice in evidence gathering from children and
young people which will be provided by 30 July 2015.