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Read It Here First
07 AUG 2015

Draft rules for vulnerable persons in family proceedings

David Burrows

Solicitor Advocate

@dbfamilylaw

Consultation of draft amendment rules

Family Procedure (Amendment No X) Rules 2015 are out for consultation, comments invited by 25 September 2015 (and see ('consultation, a postscript' (below)). Family Procedure Rules 2010 are proposed to be amended by adding Part 3A - Children and vulnerable persons: participation in proceedings and giving evidence. The draft rules have been produced with such speed that no explanatory note, or any draft practice direction (as proposed by the rules) is included, and errors in proof reading are obvious. The reader - who may him/herself be a 'child or vulnerable person' - is expected (at least at this stage) to work out what the draft is all about.

After looking at the content of the draft rules, this article will proceed:
  • by urging clarity of procedural law upon Family Procedure Rules Committee (FPRC), especially in this field of law;
  • by an examination of the background to the consultation and context of the draft rules;
  • by asking whether these rules are truly compliant with the common law; and, alongside that
  • by urging on FPRC a non-Alsationised approach (a term to be explained) to civil and family law reform; and
  • it will add some notes on consultation rules.
Framework of the draft amendments

Part 3A starts with an 'interpretation' rule, which leaves out more than it says (and see 'clarity' (below)): for example:
  • The term 'vulnerable person' referred to in the title to Part 3A is not used again, still less is it defined; though it is implied by the concept of participation or evidence being 'likely to be diminished' (see, eg, rr 3A.4(1) and 3A.5(1)).
  • What is meant by 'proceedings where a child is involved' is not explained (eg is it as a witness, as a party, or any proceedings which concern a child, or is it intended to be the same as 'participation' as set out in r 3A.2(2)?)
  • Participation of a party or their evidence 'is likely to be diminished' is stated by rr 3A.1(1), (3A.41) and 3A.5(1); but 'diminished' by what? If something is 'diminished' it can only be by reference to something else (eg 'The strength of my argument is diminished by your comments upon it)'? The word 'diminished' can have no meaning in the absence of the qualifier 'by'?
  • Ability to 'participate in the proceedings' (r 3A.2 and 3A.3) is not defined: what proceedings? What does 'participate' mean in this context (eg is it the same as 'involved'?)?
  • Is 'case management' meant to mean something different from the term as it applied in Civil Procedure Rules 1998 Part 3 and FPR 2010 Part 4?
The draft rules impose on the court a duty to consider whether r 3A(2), and, if so, how (r 3A.3) a child should 'participate in proceedings'. if a child is to participate r 3A.3(2) sets out the 'case management' directions which the court should consider and what these directions should contain.

Rules 3A.4 and 3A.5 move away from children, and consider the 'participation' and 'evidence' of a party to proceedings (presumably intended to apply to a 'vulnerable' individual), and whether this 'is likely to be diminished' (but by what? - see above). The rules set out what case management directions may be necessary.

Rule 3A.6 tells the court to what it must have regard when it considers making case management directions in relation to the previous three rules. Rule 3A.7 sets out 'measures' (referred to in earlier rules) for protection of the children or vulnerable parties or witnesses concerned (eg evidence by video link; assistance from an intermediary; and see comments of Lady Hale at the conclusion of Re A (Sexual Abuse: Disclosure) [2012] UKSC 60, [2013] 1 FLR 948). Rules 3A.8 and 3A.9 asserts when the rules apply ('as soon as possible after the start of proceedings: r 3A.8(1)); and what an application must include. The court can proceed on its own initiative (FPR 2010 rr 3A.10) in respect of a child or a party; but what does a witness, or child not a party do to activate the rules? A party applied under FPR 2010 Part 18 (r 3A.9(3)). Reasons for its decision must be recorded by the court (r 3A.11).

It is not clear why these amendments are added at '3A' (this numbering concept, in itself, may need to be explained to those whom it concerns). It has elements which should cross-refer to FPR 2010 Parts 15 (protected parties), 16 (representations of children), 22 and 23 (evidence in family proceedings); and even about costs (Part 28). Why not - as Civil Procedure Rules 1998 do - just add the rule at the end as Part 39, and cross-refer to Parts 15 etc as need be?

Ground rules: clarity, 'simple expression' and vulnerable persons

The first line of text to the draft correctly states that FPRC make the rules in exercise of its powers under Courts Act 2003 ss 75 and 76. Section 75(5) requires that any power to make these rules must be

(5) ... exercised with a view to securing that--

(a) the family justice system is accessible, fair and efficient, and
(b) the rules are both simple and simply expressed

If these amendment rules do not come up to that - admittedly subjective - standard, then they may be unlawful from the start. Section 75(5) broadly complies with Lord Bingham's first rule of his 'Rule of law' (http://www.cpl.law.cam.ac.uk/past_activities/the_rule_of_law_text_transcript.php): that -

'... the law must be accessible and so far as possible intelligible, clear and predictable. This seems obvious: if everyone is bound by the law they must be able without undue difficulty to find out what it is, even if that means taking advice (as it usually will), and the answer when given should be sufficiently clear that a course of action can be based on it.'
Given that Part 3A's main consumers will be 'vulnerable' individuals and some children, special allowance should be made for their understanding and difficult circumstances at the time of having to read and have 'access' to these rules. They must not be drafted only for the understanding of lawyers, whom only very few (and mostly the better educated) can still afford to instruct.

Background and context for the rules

H v L and R [2006] EWHC 3099 (Fam), [2007] 2 FLR 162 emphasised how backward were some of their procedural rules for dealing with children and vulnerable individuals - known predominantly in most civil proceedings contexts as 'protected parties' and witnesses. In that case Roderic Wood J considered how he could protect X, a 20 year old who was to be cross-examined by the father of the child in the case (X's half-sister) whom, X alleged, had abused her when she was nine. Said the judge, she -

'[3] ... was a borderline anorexic, and a suicide risk. Thus the question of by whom she should be cross-examined was of particular import, although I do not believe that the resolution of the issue of who should cross-examine such a witness in other cases is dependent on the existence of such features of vulnerability (both physical and psychological).'
He examined how this was done in criminal trials under Youth Justice and Criminal Evidence Act 1999, s 5, and concluded:

'[25] I would invite urgent attention to creating a new statutory provision which provides for representation in circumstances analogous to the existing statutory framework governing criminal proceedings as set out in [YJCEA 1999] ... I can see no distinction in policy terms between the criminal and the civil process. Logic strongly suggests that such a service should be made available to the family jurisdiction. If it is inappropriate for a litigant in person to cross-examine and witness in the criminal jurisdiction, why not in the family jurisdiction?'

And that is where the law still stands in family proceedings.

Meanwhile, in the criminal courts, cross-examination of vulnerable witnesses may be limited (YJCEA 1999, s 22; and see Criminal Procedure Rules 2014, rr 29.8 - 29.13, especially r 29.9). As Simon Heaney explains in 'Safety Measures: Vulnerable Witnesses' [2015] June Family Law Journal at 7) and as Roderic Wood J emphasises, civil and family lawyers trail a long way behind their criminal law colleagues.

Article continues below...
Vulnerable witnesses working group

In July 2014 the Vulnerable Witnesses and Children Working Group (VWCWG) published a consultation paper (entitled an 'interim report') on 'children and vulnerable witnesses'. In response to the consultation the VWCWG published a report, which recommended rule changes (now overtaken by the present draft). The report draws attention to practices in the criminal courts where prevailing procedures are much more appropriate to children. It singles out the helpful comments on children evidence of Lord Judge LCJ in R v Barker [2010] EWCA Crim 4 and paras [38] to [43] (surely a helpful starting point for the subject of children's evidence?).

In June FPRC considered a draft statutory instrument in the following terms (in item 4):

'... Anne Herd [Ministry of Justice legal group: a civil servant] had drafted rules in the form of a draft statutory instrument. These had been drafted so as to be intra vires and in the Committee's usual drafting style. By virtue of clever drafting it was considered that the draft did not conflict with the overriding objective and did not create any new legal obligation. [Ryder LJ, who is reported here] emphasised the rules had been drafted without MoJ policy or ministerial input. Subject to the Committee's discussion, it was intended to issue the draft rules for consultation ...'
The committee seemed to accept the vires of the rules, but not to have considered whether the amendments are compliant with the common law. Why duties on the court do not create a 'new legal obligation' is unclear.

The common law and the draft rules

The common law in 2015 bristles with judicial concern - especially House of Lords and Supreme Court - at any incursions into open court principles and exceptions to that principle (eg in relation to the giving of evidence: AG v Leveller (below) is a classic example). From Scott & Anor v Scott [1913] UKHL 2; [1913] AC 417 through Attorney General v Leveller Magazine Ltd [1979] AC 440 and R (ota Guardian News and Media Ltd) v City of Westminster Magistrates' Court (Article 19 intervening) [2014] UKSC 20 and A v British Broadcasting Corporation [2014] UKSC 25 exceptions to the common law open justice principle are explained. Children proceedings evidence may be covered by privacy rules (Administration of Justice Act 1960, s 12(1) and its jurisprudence); but evidence from vulnerable adults (see, eg, H v L & R and Lady Hale in Re A (above)) comes four-square within the ambit of open justice and where exceptions to the rule should apply.

If the common law open justice principle is to be altered for adults - the vulnerability of witnesses in some family proceedings surely cries out for this, as, eg, H v L & R shows? - this alters fundamental rights (whatever the FPRC minute may say). Fundamental rights can only be changed by express statutory provision (see, eg, R v Secretary of State for the Home Department, exp Simms [1999] UKHL 33; [2000] 2 AC 115 per Lord Hoffman) not by a rule. Some of the amendments proposed by the draft need statutory sanction.

Alsatianisation of family proceedings law and rules

In Richardson v Richardson [2011] EWCA Civ 79 Munby LJ said (and as Munby J he had said much the same in A v A (St George Trustees Ltd, Interveners) [2007] EWHC 99 (Fam); [2007] 2 FLR 467 at [21] and in Whig v Whig [2007] EWHC 1856 (Fam); [2008] 1 FLR 453 at [59]):

'[53] The Family Divsion is part of the High Court. It is not some legal Alsatia where the common law and equity do not apply. The rules of agency apply there as much as elsewhere. But in applying those rules one must have regard to the context, and the relevant context here is the law of ancillary relief and, more particularly, as Mr Dyer has correctly said, the rules which apply where the question is whether an ancillary relief order should be set aside as between the husband and wife's estate. And in that context the relevant [rules of agency] are those to be found in the authorities [referred to earlier in this judgment].'
'Alsatia' (Alsace was in the throes of the Thirty Years War at the time) was the name of a lawless area between Blackfriars, Fleet Street and the Thames (not far from the present Temple sets of chambers) where fugitives from the law in early seventeenth century London were said to be able to obtain sanctuary, and thus relief from prosecution.

The principles on which these new rules are based are partly derived from criminal proceedings; but in respect of civil proceedings generally the problems will apply there as well (as JX MX v Dartford & Gravesham NHS Trust & ORs [2015] EWCA Civ 96 shows, a case cited by Keehan J in Birmingham City Council v Riaz & Ors [2014] EWHC 4247 (Fam) (15 December 2014)). So it must make sense that all Divisions of the civil courts, the county court (now a single court) the Court of Protection and the bankruptcy courts all subscribe to, and incorporate into their respective rules, the new rules - and any proposed changes in the common law - rather than the family courts operating in their own Alsatia.

Consultation: a postscript

The law on consultation was considered at Supreme Court level for the first time very recently in R (ota Mosley) v London Borough of Haringey [2014] UKSC 56. There is no duty at common law to consult; but there is a duty on a public body to 'act fairly'. This duty, says Lord Wilson, arises 'in a variety of ways'. Where the duty is non-statutory - as with these draft rules - its operation can be 'illumined by the doctrine of legitimate expectation':

'[23] ... irrespective of how the duty to consult has been generated, that same common law duty of procedural fairness will inform the manner in which the consultation should be conducted.

[24] Fairness is a protean concept, not susceptible of much generalised enlargement. But its requirements in this context must be linked to the purposes of consultation. In R (Osborne) v Parole Board [2013] UKSC 61, [2013] 3 WLR 1020, this court addressed the common law duty of procedural fairness in the determination of a person's legal rights. Nevertheless the first two of the purposes of procedural fairness in that somewhat different context, identified by Lord Reed in paras 67 and 68 of his judgment, equally underlie the requirement that a consultation should be fair.'
An issue may be whether the period from 3 August 2015 (a 'good time to bury bad news'?) to 25 September 2015 is a fair period for consultation. The Government's own 'consultation principles' (dated sometime after July 2008) (https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/255180/Consultation-Principles-Oct-2013.pdf) deal with 'timing of consultation' and suggest that the capacity of groups to respond should be taken into consideration. August should in any event be ignored, so that on that basis 18 day is allowed for this consultation. That may not be regarded as fair for such a topic, where so many aspects of law and procedure are affected and where some interest groups (eg family lawyers and judges) are on holiday.

Even if the proposed changes are indeed intra vires the FPRC; even if it is appropriate for family courts to go their separate Alsatianist ways; and even if the drafting is fully clear (ie intra vires Courts Act 2003, s 75(5), the period for consultation might yet be regarded as unfair which might quash the process.
The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.