Family Law

The Ministry of Justice has today (23 February 2017) published a report on the cross-examination of vulnerable and intimidated witnesses in private family law.

This research study explores how the family judiciary manage cases with the cross-examination of vulnerable or intimidated witnesses by alleged perpetrators of abuse, and establishes what, if any, further provisions could be considered to support them in doing so.

Currently in private family law proceedings, litigants in person are able to cross-examine other parties in the case, including vulnerable or intimidated witnesses. Vulnerable witnesses may include individuals with a mental health issue or physical disability, and an intimidated witness refers to people whose evidence is likely to be diminished due to fear or distress.

The President of the Family Division, Sir James Munby, and others have raised concerns about the current protections available for vulnerable witnesses in the family court. This issue has been further highlighted since legal aid reforms introduced in April 2013 removed most private law cases from the scope of legal aid and increased the proportion of litigants in person in the family court.

This research aimed to complement the work of the Family Procedure Rule Committee, which has been considering whether and how to implement the recommendations of the President’s Children and Vulnerable Witnesses Working Group to provide additional protections for vulnerable witnesses.

The report presents the findings from an in-depth qualitative study based on 21 interviews with family judges and a workshop with representatives from external organisations.

The primary solution put forward by research participants was as follows:

• The provision of publicly funded advocates to be appointed for the purposes of cross-examination.
• The introduction of routine vulnerability assessments in all private law cases. This would outline which provisions are required to protect vulnerable witnesses, including the option of a paid advocate.
• The need for more consistent and fit-for-purpose special measures such as screens and video links across family courts.
• Providing separate entrances, exits and waiting areas for vulnerable witnesses and alleged perpetrators.

As part of the Prisons and Courts Bill, family courts in England and Wales are to be given the power to put an end to victims and vulnerable witnesses being cross-examined by their attackers. The Bill was unveiled today by the Justice Secretary Elizabeth Truss. 

The full report, Alleged perpetrators of abuse as litigants in person in private family law: The cross-examination of vulnerable and intimidated witnesses, is available to download here.

See also the consultation issued on new draft Practice Direction 3AA.