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Meta Title :The Children and Vulnerable Witnesses Working Group – Essential Update
Meta Keywords :family law, The Children and Vulnerable Witnesses Working Group, transparency, voice of the child, vulnerable witness
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Aug 13, 2014, 06:45 AM
Article ID :106749
The President’s12th 'View from the President’s Chambers', published on 4 June 2014,
introduced two working groups which were to produce their interim reports by 31 July 2014; the Children and Vulnerable Witness Working Group and the Financial
Remedies Working Group (who are working on the new Money Arrangements Programme
- the MAP). Those reports have now been
released and contain a lot of reading for the family practitioner. There is a wealth of content and we are
producing essential updates designed to give family law professionals a neat
summary of the need-to-know points. In a nutshell
The President’s 12th View set out three main aims
for the Children and Vulnerable Witnesses Working Group headed by Hayden J and
Russell J. The Working Group has now published an interim report, a summary of which is set out below. When:
12 August 2014 - The
report was circulated.
Further consultation is now to take place, with Family
Division Judges and the Family Justice Counsel, followed by a wider
consultation once the draft rules have been refined.
Late October 2014
- It is intended that the proposed rule changes are to be put before the Family
Procedure Rule Committee (FPRC) . The Working Group is scheduled to meet again in
early October for further discussion of the draft rules.
Beginning of 2015
- The aim is to have the changes in place by the beginning of 2015.
1. Review of the Family Justice Council’s April
2010 Guidelines for Judges Meeting Children who are Subject to Family
Proceedings  2 FLR 1872
Practitioners will be aware of the MoJ announcement made on 24 July 2014 that children are to be given the opportunity to meet and communicate
with the professionals involved with their case. This is to include Cafcass workers, social
workers, the judges and legal representatives.
The report refers to the Rt Hon Simon Hughes MP's speech to the Family
Justice Young People's Board 'Voice of the Child' conference, which can be read
2. Review of the
Family Justice Council’s Working Party’s December 2011 Guidelines on Children
Giving Evidence in Family Proceedings  Fam Law 79
3. Review of the
issue of vulnerable people giving evidence in family proceedings
The second and third issues to be tackled by the working
group have a considerable amount of overlap, children are inherently vulnerable
witnesses. The report therefore
addresses both these issues together.
The intention is to build upon the work done by the Advocacy
Training Council (ATC) as set out in their 2011 report, Raising
the Bar. The principles contained in
the report have been successful in the criminal justice system, and the Working
Group intend to adapt those principles for use in the family justice system. This is to include the provision of training
for advocates as well as support for witnesses to give their evidence where
The benefits of this are considered to be creating the
optimum conditions for the giving of evidence and a more effective and
efficient use of court time, both of which promote a greater likelihood of a
The Advocates’ Gateway is preparing a toolkit for use in
family proceedings containing general guidance for family lawyers and advocates. This is currently in draft format and is due
to be published in October 2014.
The report details efforts made by some judges on their own
initiative to assist vulnerable witnesses, His Honour Judge Clive Heaton QC is
specifically thanked for his contributions.
The fact that judges have needed to take these steps is cited as a
further illustration of the need for a formal procedure across the family
Work so far
The Working Group took some time to consider whether the term
'vulnerable witnesses' is the most appropriate one, but concluded that it
remains appropriate for the term to be used.
The group also considered whether reform needs to be focused
on public law, as parents in care cases are often vulnerable, and on private
law cases involving domestic abuse.
Attention was drawn to the cases where domestic abuse victims face cross-examination
by the alleged abused directly, rather than by an advocate, due to the
unavailability of public funding. See
the President’s judgment in Q
v Q; Re B; Re C  EWFC 31,  2 FLR (forthcoming) on this and other related issues. However reform is to apply to all family
cases from the outset.
The review of the guidance for judges seeing children will be
taking place alongside the consideration of the reforms for vulnerable
witnesses. There is a pilot scheme currently taking place
in York where any child over the age of 10 is to be given the opportunity to
see the judge. The progress of this
pilot scheme will be reported back to the Working Group.
The ATC are willing to provide guidance and toolkits for
advocates in the family courts, and a further meeting is due to take place
regarding this in late September/early October 2014.
Proposals and initial
The Working Group (WG) have made the following initial
recommendations to assist judges in identifying and dealing with vulnerable
witnesses and to enable advocates to handle and question such parties and
reforms should apply to all family court cases from the outset.
should be a new mandatory rule in respect of Children and Vulnerable Witnesses
and Parties supplemented by practice directions (PD) and guidance approved by
vulnerable witness should remain in use as it is not desirable for the family
court procedure to become distanced or uncoupled from the practice and
procedure as it has developed in the criminal justice system. The term needs to
be extended to cover the parties as well as witnesses.
rule/s should be inserted in the Family Procedure Rules 2010 (FPR 2010) (as amended) at the earliest point of
the rules to emphasise the importance of the role of the child and the need to
identify the necessary support /special measures for vulnerable witnesses
and/or parties from the start of any proceedings, or at the earliest
should be a new Part 4 to the FPR 2010.
should require that the court/judge will recognise the role of the children
and/or needs of children at the outset of proceedings either as participants in
proceedings who should be given the opportunity of communicating with the
judge; and/or as witnesses and consider the how best to provide for their
participation and support.
should require that the court/judge will identify whether a party or witness is
vulnerable at the outset of the proceedings or their involvement in proceeding
(whichever is the sooner) and make provision for such support, special measures
or other assistance they may need to properly and fully participate in the
proceedings and to give best evidence.
should require that the all the advocates and representatives of the parties
must identify 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.
should require that all advocates and representatives of the parties must identify
if a party or witness is vulnerable and consider how best he or she can be
supported and assisted to give best evidence.
should be a requirement in the same terms for Litigants in Person.
should be a PD(4) based on the FJC guidance for judges seeing children, which
reflects the Court of Appeal’s decision in Re KP (Abudction: Child's Objections)  EWCA Civ 554,  2 FLR (forthcoming and reported at  Fam Law 945) and gives
consideration to the provisions of the Charter and the experience of the
addition there should be consideration of the status and nature of the contents
of the communication between judge and child.
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;
such as by amendment of the Public Law Outline or Child Arrangements Programme.
and practice direction should be drafted with reference to the existing Special
Measures Directions In the Case of Vulnerable and Intimidated Witnesses, and
the procedure and practice that have developed in the criminal courts pursuant
to the 1999 Act and the work of the ATC.
consideration should be given to the provisions for parties and witnesses in
cases of forced marriage (FM) and female genital mutilation (FGM). In FM cases
nullity hearings are in open court when the protected person is a vulnerable
witnesses who is likely to have to give evidence of a most intimate and
sensitive nature. In FGM cases the child and/or other witness are most likely
to need support and special measures for the same or similar reasons and such
support and assistance should be provided by the judge, court and advocates.
rule and PD and amendments to the existing PDs should be drafted by the WG in
consultation with the Family Justice Council (with its interdisciplinary
membership), Family Justice Young People’s Board, the judiciary and the drafts
sent for wider consultation to MoJ and HMCTS.
change should be implemented by way of training for the judiciary and
for the judiciary should be in the form of an additional module during Judicial
College training for Public and Private Law and online material both in respect
of judges seeing children and regarding vulnerable witnesses.
should be expected to attend for additional training (as criminal advocates
did); the ATC will provide additional and specific guidance for advocates in
family cases as part of the toolkit.
should identify the training and guidance needed in order that the ATC provide
it. The WG should seek the assistance of practitioners’ groups in developing
the areas of training and guidance.
In brief, changes to the Family Procedure Rules are coming
and practitioners must be prepared for these!
(1) This is only an interim report, and implementation of
the proposals is not expected until later this year/the beginning of 2015. Keep an eye on Family Law for further
(2) In the meantime, if you have any observations after reading the report send them to the President’s Assistant Private Secretary, Jo Wilkinson, by email to Joanna.firstname.lastname@example.org.
(3) Diarise for the end of October to check whether the
Working Group have produced a further report following their meeting in early
October and for the Advocates’ Gateway toolkit, also due in October.