Rhys Taylor, 36 Family and 30 Park PlaceJonathan Galbraith, Mathieson Consulting2020 has thus far proved to be a memorable year for all the wrong reasons, but nonetheless it remains an interesting one...
Peter Mitchell QC, 29 Bedford RowStock Options and Restricted Stock Units (RSUs) are frequently encountered by the Family Court when dividing property on divorce or dissolution of a Civil Partnership....
When the mother and father separated they made cross applications for residence orders in respect of their two children, aged 2 and 3. A fact-finding hearing took place to determine the mother's allegations that: the father had taken her to Pakistan and abandoned there for 6 months; that she had been controlled by the paternal family; confined to the house and exploited by being made to doing excessive housework.
Peter Jackson J found that while the mother, no doubt experienced a lack of independence and support from the paternal family, it would be an exaggeration to regard her as having been enslaved as she had claimed. On the evidence the allegation that she had been assaulted on three occasions was made out. Although the mother had freely travelled to Pakistan, she had only intended to go for a short while and once she decided to leave it was clear that the paternal family prevented her from doing so.
During the hearing a number of witnesses gave evidence through an interpreter but concerns arose regarding the statements taken from the witnesses in English, which they did not speak. The procedural irregularities were potentially unfair to the parties and witnesses. Peter Jackson J recorded basic principles in cases where these circumstances arose:
(1) An affidavit or statement by a non-English-speaking witness must be prepared in the witness's own language before being translated into English.
(2) There must be clarity about the process by which a statement has been created. In all cases, the statement should contain an explanation of the process by which it has been taken: for example, face-to-face, over the telephone, by Skype or based on a document written in the witness's own language.
(3) If a solicitor has been instructed by the litigant, s/he should be fully involved in the process and should not subcontract it to the client.
(4) If presented with a statement in English from a witness who cannot read or speak English, the solicitor should question its provenance and not simply use the document as a proof of evidence.
(5) The witness should be spoken to wherever possible, using an interpreter, and a draft statement should be prepared in the native language for them to read and sign. If the solicitor is fluent in the foreign language then it is permissible for him/her to act in the role of the interpreter. However, this must be made clear either within the body of the statement or in a separate affidavit.
(6) A litigant in person should where possible use a certified interpreter when preparing a witness statement.
(7) If the witness cannot read or write in their own native language, the interpreter must carefully read the statement to the witness in his/her own language and set this out in the translator's jurat or affidavit, using the words provided by Annexes 1 or 2 to the Practice Direction.
(8) Once the statement has been completed and signed in the native language, it should be translated by a certified translator who should then either sign a jurat confirming the translation or provide a short affidavit confirming that s/he has faithfully translated the statement.
(9) If a witness is to give live evidence either in person or by video-link, a copy of the original statement in the witness's own language and the English translation should be provided to them well in advance of the hearing.
(10) If a statement has been obtained and prepared abroad in compliance with the relevant country's laws, a certified translation of that statement must be filed together with the original document.