Family Law

Linda Hunting
Research & Development Coordinator, Advocacy Training Council

It will be three years next April since the then Attorney General The Rt Hon Dominic Grieve QC spoke at a special reception to mark the launch of The Advocate’s Gateway. The event showcased what was then a new website for advocates providing easy and free access to practical guidance for working with witnesses and defendants who have additional needs. Until then, there had never been a single online resource which brought together the best of research and practice in relation to vulnerable witnesses and defendants. Crucially, the website is free for all users and has benefited from the ongoing support of the Advocacy Training Council, the management committee and other volunteers.

Mr Grieve’s keynote address spoke of the experiences of vulnerable people in our courts and the need for a changing landscape. He greatly welcomed the development of the website. ‘Advocates try to be experts in their own discipline but this is a complex area,’ he explained. ‘The website is very helpful in disseminating good practice and I think the judiciary will find it extremely useful as well.’ This came at a pivotal time in the aftermath of such high-profile cases as the Jimmy Savile sexual abuses, the abduction of April Jones, the Gary McKinnon case, and the murder of a British family in the French alps – all of which involved child witnesses or adults with special needs. The treatment of witnesses in criminal cases was under public scrutiny.

The Advocate's Gateway and the family courts

Whilst the criminal procedure rules, practice directions and case law have moved on at a pace in the last few years, the President of the Family Division has noted that the family court is lagging woefully behind. In November 2014 The Advocate’s Gateway published a toolkit, ‘Vulnerable Witnesses and Parties in the Family Courts’ to help plug this gap and consultation responses to a new Family Procedure Rules on vulnerable witnesses and parties are being considered.

Three years on, and the time has been busy for Professor Penny Cooper-Chair of the Management Committee of The Advocate’s Gateway, and the Advocacy Training Council (ATC) who host and facilitate the website. In particular, the interest in TAG, as it is now fondly referred to by practitioners and alike has grown immensely. The site has developed as the ‘go to’ for anyone who works with vulnerable people. This has led to the continued need to produce up to date, research-based practical guidance and expand our suite of toolkits.

Updated toolkits

December 2015 sees the publication of updated toolkits, edited by practitioner and academic specialists. Each updated toolkit is now fully indexed and contains the latest examples of good practice. Toolkits currently available from 1a through to 7 published in 2011/12 will now be replaced with six new toolkits.  These will cover topics such as: learning disability, case management and hidden disabilities. Professor Cooper said:

‘TAG is constantly developing to reflect the latest practice and most up to date research. Since the toolkits were originally published there have been marked changes such as an increase in the use of intermediaries and ground rules hearings including in family cases. Judges also frequently require advocates to write out and collaborate on their proposed cross-examination questions. As well as reflecting these changes, the new toolkits are designed to be more easily navigable and more widely applicable across all the courts and tribunals. These resources remain free for everyone and will continue to be regularly updated.’

The titles of the new toolkits are as follows:

1a Case Management When a Witness or Defendant is Vulnerable

2 General Principals from Research, Policy and Guidance: Planning to Question a Vulnerable Person or Someone with Communication Needs

4 Planning to Question Someone with a Learning Disability

5 Planning to Question Someone with ‘Hidden’ Disabilities: Specific Language Impairment, Dyslexia, Dyspraxia, Dyscalculia and AD(H)D

6 Planning to Question a Child or Young Person

7 Additional Factors Concerning Children Under 7 (or Functioning at a Very Young Age)

Good practice examples

A five-year-old was sent a series of photo letters to be shared with her by her foster carers, preparing her for each step pre-trial and at trial.

A child with autism struggled to make sense of livelink. His need for space and his behaviour when stressed meant that bringing counsel to the livelink room for questioning would not have helped. The livelink room was cleared of all risky or distracting objects; all microphones in the court room were switched off when not in use to reduce background noise; the picture-in-picture was covered with a small towel so he did not need to see himself on screen; sound and vision were switched off for frequent brief breaks; blinds were drawn so light levels were stable.

At the pre-trial visit the intermediary asked the court usher to play the role of the advocate and gave him a list of neutral questions about the child’s recent visit to the beach. The usher then questioned the child over the live link and the child was able to practise responding to questions using this method and was then also familiar with the intermediary’s support for communication during questioning.

A statement was printed in large plain font onto tinted paper for someone with dyslexia.

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The style of the more recently published toolkits such as Toolkit 16 Intermediaries step by step and Toolkit 17 Vulnerable Witnesses and Parties in the Civil Courts is down to listening to feedback from practitioners. Professor Cooper said, ‘We are always keen to respond to practitioner feedback and to increase the ease of access for busy practitioners. More and more we see that toolkits are being accessed at on tablets in a wide variety of cases, including family matters. The revised toolkits are more easily navigable and of significance to advocates across all areas of practice’.

Support from all has been very strong, this has been in part thanks to the judicial endorsement the toolkits have received. To date, the toolkits have been cited as best practice by members of the judiciary such as The Rt Hon Sir Brian Leveson in his review of the efficiency in criminal proceedings earlier this year. Sir James Munby, President of the Family Division, also gave commendation for the toolkits in his 12th View from the President's Chamber: The process of reform: next steps last year, and in his keynote address at the TAG International Conference Addressing Vulnerability in Justice Systems held in June at the Law  Society. It was Sir Munby’s interest in the work of TAG that led to Professor Cooper sitting on the family court's children and vulnerable witness group and her involvement in the development of a new draft Family Procedure Rules for vulnerable witness and parties (consultation responses are currently under review).

Since the launch of the website the toolkits have been used in thousands of criminal cases, family cases and tribunals. The Court of Protection is now also actively considering its approach to vulnerable witnesses and parties. As Toolkit 2 reminds us: 

‘The most significant factor in effective communication with a vulnerable person or somebody with communication needs is the questioner’s ability to adopt an appropriate manner and tailor questions to the needs and abilities of the individual (Agnew et al, 2006; Bull, 2010; Powell et al, 2013), enabling the person to understand questions and give answers that he or she believes to be correct.’

The new toolkits will be available to download from today, 14 December 2015, at wwww.theadvocatesgateway.org.