Family Law

• For a summary and key points of the below report see: The Children and Vulnerable Witnesses Working Group – Essential Update

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.

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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.’

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

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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

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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

International Instruments/Guidance

Council of