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Evidence of children and vulnerable witnesses: Part 1

Date:8 DEC 2017
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Solicitor Advocate

Intimidated witnesses in family proceedings

This article (the first of two) considers the evidence of any witness in family proceedings where that evidence diverges from the general procedural rules (as explained below) for evidence in family proceedings. Such evidence will be from the following:

  • witnesses and parties who are adult and of full capacity, but whose evidence may be in some way be ‘diminished by [their] vulnerability’ (Family Procedure Rules 2010 (FPR 2010), rr 3A.4(1) and 3A.5(1));
  • children who give evidence in their own or others’ cases;
  • witnesses who are protected parties or otherwise lack mental capacity; and
  • witnesses with learning difficulties.
This article sets the scene for circumstances in which the court may order assistance for these children and vulnerable witnesses by ‘control’ (FPR 2010, r 22.1(1)) of the way the evidence is put before the court. A second will look at the particular measures available to the courts at common law and within the rules to provide this assistance for children and vulnerable witnesses. The two articles are prompted by the introduction on 27 November 2017 of FPR 2010 Pt 3A (for ‘Vulnerable persons: participation in proceedings and giving evidence’), but not for children, as will be seen. It is restricted to considering the law in relation to evidence (witnesses) as does the Youth Justice and Criminal Evidence Act 1999 (‘YJCEA 1999’) on which Pt 3A is based. Pt 3A deals also with participation for vulnerable adults in proceedings (r 3A.4 alongside FPR 2010, Pt 15 for protected parties; and see r 3A.6).
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Court’s power to ‘control the evidence’: the general rule

The objects of FPR 2010, r 22.1(1)(c) and Pt 3A together are, in relation to evidence generically, to control – or alter from the general rules for adducing of evidence – how the evidence (‘participation’ per r 3A.4 is not in question here) of a particular witness is put before the court. The general rule, unless the judge or magistrates order otherwise, is:

  • Evidence is oral at a final hearing (r 22.2(1)(a)), subject to the witness’s statement having been served by the party calling him or her (r 22.4(1)). The statement is treated as the witness’s evidence in chief (r 22.6(2)).
  • The witness must be available in court in person for cross-examination.
  • Other than at a final hearing, evidence is in writing only (r 22.2(1)(b), 22.7(1)) but application can be made for cross-examination of a witness (r 22.8(1)).

Anything which diverges from this for a witness or a party who is to give evidence and who is vulnerable, can only be by direction of the court under FPR 2010 rr 22.1(1)(c) or as a ‘measure’ under r 3A.8. These measures are under common law as set down and summarised, for example, in YJCEA 1999, Pt 2 and in FPR 2010, Pt 3A. That court direction is likely to be for a special, or particular, measure to assist the witness (subject (1) to funding and (2) to court order). A description of the particular measures available to family courts for assistance of children and vulnerable witnesses will be dealt with in the next article.

Children’s evidence: as witness or as party

Part 3A does not deal with evidence of children; whereas, for example, YJCEA 1999 Pt 2 deals at the same time, and according the same special measures for, the evidence of children and of other vulnerable witnesses.

Children’s evidence must be dealt with here. Plainly it may be an important component of family proceedings (and see Evidence in family proceedings by David Burrows (2016, Family Law/LexisNexis)). Important sources for review of children’s evidence (whether as witnesses or as parties) include:
  • Re W (Children) (Abuse: Oral Evidence) [2010] UKSC 12, [2010] 1 FLR 1485
  • 'Guidelines in relation to children giving evidence in family  proceedings of December 2011', Family Justice Council [2012] Fam Law 79
  • Re E (A Child) (Evidence) [2016] EWCA Civ 473, [2017] 1 FLR 1675

‘Measures’, but no funding…

Each of these witnesses – whether covered by Pt 3A or by common law – may be entitled, if the court so decides, to particular measures directed by the court whether at common law as explained by Lady Hale in, for example, Re A (Sexual Abuse: Disclosure) [2012] UKSC 60, [2013] 1 FLR 948 or as summarised in FPR 2010 (eg rr 3A.8(1), 22.3) and under court control (FPR 2010, r 22.1(1)).

A major problem for vulnerable adult witnesses (children, if made parties, will mostly have legal aid) is that little headway will be made with any of this till proper funding is resolved. There is no mention made of particular legal aid funding (see eg Legal Aid, Sentencing and Punishment of Offenders Act 2012, Sch 1) in civil or family proceedings for those who lack mental capacity or who have learning difficulties (two categories of witness categorised as ‘vulnerable’ in YJCEA 1999 Pt 2 and FPR 2010, Pt 3A). Funding is needed for all but the richest of parties: first to provide for special measures with cost implications (intermediaries, video-link etc); and, second, for expenses of the parties for assessment of vulnerability and of the cost of any special measure.

Measures:  ‘control’ of evidence in family proceedings

Evidence in family proceedings is controlled by FPR 2010, r 22.1 (which is derived directly from Civil Procedure Rules 1998, r 32.1) and by certain provisions in the case management rules (FPR 2010, rr 1.4 and 4.1). These together give family courts the power to ‘control evidence’ and in particular to give directions as to how evidence is to be adduced before a family court. These powers apply to children and all vulnerable witnesses; and to the range of measures available at common law but not referred to in r 3A.8(1) (see next article). Part 3A, for example, makes no provision for the common law remedies referred to by Lady Hale in Re A (Sexual Abuse: Disclosure) (at [36], cited below).

Specifically, in terms of control of evidence, FPR 2010 r 22.1 is as follows:

'22.1 Power of court to  control evidence

(1) The court may control the evidence by giving directions as to –…

(c) the way in which the evidence is to be placed before the court.'

If a witness is found to be vulnerable – a child or one of the classes of witness referred to at the beginning of this article, they may be eligible for assistance by direction from the court, known as ‘measures’ or, in the language of YJCEA 1999, Pt 2, ss 23-30. Such special measures are widely used in criminal proceedings. They are available in family proceedings as Lady Hale explains in Re A  (Sexual Abuse: Disclosure), but are rarely used. To an extent they have now been proposed for vulnerable adults under Pt 3A, and subject to funding. Measures for evidence for children – such as recorded evidence under ABE guidance (see below) – still depends on common law as represented by YJCEA 1999, Pt 2, and as explained by Lady Hale in Re D (a  minor)) v Camberwell Green Youth Court [2005] UKHL 4, [2005] 1 All ER 999.

YJCEA 1999 Pt 2 and achieving best evidence

One of the principal sources for operation of the common law in family proceedings is replication of the measures available under YJCEA 1999, Pt 2, ss 23-30; though already FPR 2010, r 22.3 (video conferencing) has some assistance. Evidence under YJCEA 1999 for children and vulnerable and intimidated witnesses is explained by Achieving Best Evidence in Criminal Proceedings Guidance on  interviewing victims and witnesses, and guidance on using special measures, March 2011, Ministry of Justice (‘ABE guidance’); and a guide for those collecting evidence from children and vulnerable witnesses is provided by Vulnerable and Intimidated Witnesses A  Police Service Guide, March 2011, Ministry of Justice.

The procedures recommended in the ABE guidance have been commended by Supreme Court and again by Court of Appeal and Family Division judges. For example, in a passage quoted by McFarlane LJ in Re E (A Child) (Evidence) [2016] EWCA Civ 473, [2017] 1 FLR 1675, at [47] and [48], Lady Hale said of children’s evidence in Re W (Children) (Abuse: Oral Evidence):

'[27] … The court must factor in what steps can be taken to improve the quality of the child's evidence and at the same time to decrease the risk of harm to the child. These two aims are not in opposition to one another. The whole premise of Achieving Best Evidence and the special measures in criminal cases is that this will improve rather than diminish the quality of the evidence to the court. It does not assume that the most reliable account of any incident is one made from recollection months or years later in the stressful conditions of a courtroom…. A family court would have to be astute both to protect the child from the harmful and destructive effects of questioning and also to evaluate the answers in the light of the child's stage of development.

[28] The family court will have to be realistic in evaluating how effective it can be in maximising the advantage while minimising the harm. There are things that the court can do but they are not things that it is used to doing at present. It is not limited by the usual courtroom procedures or to applying the special measures by analogy.'

Direct cross-examination is not essential (R v Lubemba & Ors [2014] EWCA (Crim) 2064), so long as questions are fairly put to a child witness (this requirement is available now, regardless of Pt 3A; and could be copied in adult proceedings: see eg H v D (Appeal – Failure of Case Management) [2017] EWHC 1907 (Fam), Peter Jackson J); or questions could be put through an intermediary. Lady Hale continued in Re W:

'[28] … The important thing is that the questions which challenge the child's account are fairly put to the child so that she can answer them, not that counsel should be able to question her directly. One possibility is an early video'd cross examination as proposed by [the Pigot Report]. Another is cross-­examination via video link. But another is putting the required questions to her through an intermediary. This could be the court itself, as would be common in continental Europe and used to be much more common than it is now in the courts of this country.'

Vulnerable witness and the common law

Re W (Children) (Abuse: Oral Evidence) and Re E (A Child) (Evidence) dealt specifically with a child’s evidence. The ABE guidance applies equally to all ‘victims and witnesses’ – child and adult alike – who may be entitled to help to achieve their best evidence by measures available to the common law and FPR 2010. For example, of a vulnerable adult witness (‘X’) in Re A (Sexual  Abuse: Disclosure) [2012] UKSC 60, [2013] 1 FLR 948, Lady Hale said:

'[36] It does not follow [from her directing that X should give evidence], however, that X will have to give evidence in person in these proceedings.… If any party wishes to call X to give oral evidence, up to date medical evidence can be obtained to discover whether she is fit to do so. There are many ways in which her evidence could be received without recourse to the normal method of courtroom confrontation. Family proceedings have long been more flexible than other proceedings in this respect. The court has power to receive and act upon hearsay evidence. It is commonplace for children to give their accounts in videotaped conversations with specially trained police officers or social workers. Such arrangements might be extended to other vulnerable witnesses such as X. These could include the facility to have specific questions put to the witness at the request of the parties. If she is too unwell to cope with oral questioning, the court may have to do its best with her recorded allegations….'

Questioning could be set up in such a way as to avoid face-to-face confrontation between the party to proceedings and the vulnerable witness. Lady Hale continued:

'[36] … On the other hand, oral questioning could be arranged in ways which did not involve face to face confrontation. It is not a requirement that the father be able to see her face. It is, to say the least, unlikely that the court would ever allow direct questioning by the father, should he still (other than in this court) be acting in person. The court's only concern in family proceedings is to get at the truth. The object of the procedure is to enable witnesses to give their evidence in the way which best enables the court to assess its reliability. It is certainly not to compound any abuse which may have been suffered.'

As explained at the beginning of this article, FPR 2010, r 22.1(1)(c) and Pt 3A together to control – or alter from the general rules for adducing of evidence – how the evidence a particular witness is put before the court. This will be by court order measures. The directions which provide these measures for children and vulnerable witnesses will be considered in the next article.