The first article in this series of two dealt with circumstances where particular arrangements might be appropriate for children and vulnerable as witnesses in family proceedings. This article looks at the type of measure which the court can provide for such witnesses; and at how these measures are dealt with in common law and under statutory provision. As mentioned at the end of this article, the funding of assessment for, and thus the effective operation of, such measures is not something the Lord Chancellor and his Ministry of Justice seems fully – or at all? – to have put their minds to.
In Re (D (a minor)) v Camberwell Green Youth Court  UKHL 4,  1 WLR 393, Lady Hale explained that the existing common law remedies for children and vulnerable witnesses are, for the most part, summarised and authoritatively set out in Youth Justice and Criminal Evidence Act 1999 ('YJCEA 1999') Pt 2. YJCEA 1999 and its supporting guidance 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’) set out the respective definitions of vulnerable and intimidated witnesses (ss 16 and 17, and including children under 18). They explain the ‘special measures’ available under the Act and at common law to help witnesses give their best evidence set out in YJCEA 1999, ss 23-30 (as explained below). An abbreviated version of ‘measures’ for vulnerable adults (only) in family proceedings appears in FPR 2010, r 3A.8(1).
Divergence from the general rule for giving evidence in family proceedings and the call for ‘control’ (or where Pt 3A applies, a participation direction) arises from the extent to which the court directs measures (as summarised in the table below) to help vulnerable witness to maximise the quality of their evidence.
The criterion for the court in diverging from the general rule and in directing any measure to assist with evidence, relates to maximising quality of a vulnerable witness’s evidence. The common law has long had a variety of measures available to it to help with this (see Lady Hale in Re D (a minor)) v Camberwell (above)).
To avoid the ‘normal…of court-room confrontation’ and to maximise the quality of a witness’s evidence Lady Hale described common law measures in family proceedings (‘long more flexible than other proceedings in this respect’). In Re A (Sexual Abuse: Disclosure)  UKSC 60,  1 FLR 948 Lady Hale (at ) summarised particular forms of assistance to vulnerable witnesses as follows:
Terminology in relation to children and vulnerable witnesses is derived from YJCEA 1999, Pt 2 (mostly in ss 16 and 17): children and adults defined as eligible for assistance. Court directions are for a ‘special measures direction’ under YJCEA 1999, s 19 (in criminal proceedings) and a participation direction (FPR 2010, r 3A.8(1)) specifically for adults in family proceedings. The terminology in YJCEA 1999, Pt 2 is explained in the ABE guidance; and procedurally, for criminal proceedings, ‘special measures’ is dealt with in Criminal Procedure Rules 2015 (SI 2015/1490), Pt 18 and its practice directions.
‘Control’ under r 22.1(1)(c) (set out in first article) depends on which of the measures available to the courts judges and magistrates allow. Screens have long been permitted in court proceedings; and that video-conferencing is available in family courts is already confirmed by FPR 2010, r 22.3 and PD22A.
‘Special measures’, ABE guidance and Part 3A ‘measures’
The ABE guidance sets out and discusses use of the various ‘special measures’ available under YJCEA 1999, ss 23 to 30 (at paras 5.2 to 5.8); and application for witness anonymity at para 5.12. The ‘special measures’ available for direction under YJCEA 1999 s 18(1)(a) are:
preventing a witness from seeing a party, by ‘screen or other arrangement’ (YJCEA 1999 s 23);
allowing a witness to give evidence by live link (s 24; ie video-link or other means for a witness, absent from the hearing room, to give evidence: s 24(8));
hearing a witness’s evidence to the exclusion of others (ie in private, which is normally the case in children proceedings) (s 25);
video recorded evidence (s 27);
questioning a witness through an intermediary (s 29);
using a device to help a witness (eg because deaf or mute) to communicate (s 30).
FPR 2010, r 3A.1 defines a ‘participation direction’ as:
'(a) a general case management direction made for the purpose of assisting a witness [intended to be assisted by FPR 2010 Part 3A] to give evidence or participate in proceedings; or
(b) a direction that a witness or party should have the assistance of one or more of the measures in rule 3A.8'
FPR 2010 r 3A.8(1) lists a limited number of ‘measures’ for which, under the terms of FPR 2010, a ‘participation direction’ may be made:
(a) prevent a party or witness from seeing another party or witness;
(b) allow a party or witness to participate in hearings and give evidence by live link;
(c) provide for a party or witness to use a device to help communicate;
(d) provide for a party or witness to participate in proceedings with the assistance of an intermediary; [or]
(e) provide for a party or witness to be questioned in court with the assistance of an intermediary….
A summary of the various measures available at common law and summarised by statute and the rules can be represented as follows:
Screen to prevent witness seeing, or being seen, a party
YJCEA 1999 s 23; ABE guidance para B.9.1
Live-link (video-link or conferencing) for evidence and cross-examination
FPR 2010 r 22.3 and PD22A; YJCEA 1999 s 24; ABE B.9.4
Hearing a witness in private
YJCEA 1999 s 25; ABE B.9.12
YJCEA 1999 s 27; ABE B.9.17
Assistance of an intermediary
YJCEA 1999 s 29; ABE B.9.29; Criminal Procedure Rules 2015 Pt 18 and PD IF
Aids to communication
YJCEA 1999 s 30; ABE B.9.38
Cross-examination by pre-written questions
MFPA 1984 s 38G(6); H v D  (below)
FPR 2010 r 23.2
Judge/court assistance with examination of witness
MFPA 1984 s 38G(6)
Notes on these measures for children and to the evidence of vulnerable witnesses follow:
The court has power to order these measures, whether at common law or under Pt 3A. There are two fundamental conditions precedent to any special measures (or ‘participation’) direction being made: (1) assessment of the witness and (2) funding (where needed) of the measure (eg IT equipment; fees of intermediary or signing help for deaf or mute). The funding of assessment or payment for measures has not been thought through by HM Courts and Tribunal Service.
The rule-makers (Family Procedure Rules Committee) have no power to provide funding. The Ministry of Justice has power to recommend forms of funding to Parliament which – only – can provide new sources of funding. For the avoidance of any doubt on this – some might think a little gracelessly – r 3A.8(4) includes:
'(4) Nothing in these rules gives the court power to direct that public funding must be available to provide a measure.'
Assessment of a witness must precede any direction for special measures. This may be by the court doing the best it can (how many judges or magistrates will be happy with that?); or, by court order (if there is funding for assessment. (A recent assessment of a child’s understanding is provided by Re S (Child as Parent: Adoption: Consent)  EWHC 2729 (Fam) Cobb J (assessment of understanding to consent to adoption of a child mother with learning difficulties: to be the subject of a forthcoming article by David Burrows in Family Law). Such assessment, especially for children and for those who may be suffering from mental incapacity or learning difficulties, may be – must be, surely? – done professionally. And yet?...
Whatever may be the course available to the party who wishes to call the witness – for unlike in criminal proceedings where CPS can fund assessments and certain special measures – the assessment must be done with care, as explained by Sir Ernest Ryder, Senior President of Appeals, in the Court of Appeal in AM (Afghanistan) v Secretary of State for the Home Department  EWCA Civ 1123. For example the court must be aware of:
Though professional assistance must be required, for adults in private law proceedings nothing is said by Ministry of Justice as to who is going to pay. That is before the question of the cost of IT, equipment for recording evidence (eg of children or victims of domestic abuse), court video equipment (surely cannot be very expensive?), fees for an intermediary and so on is even touched upon.
At least one YJCEA 1999 ‘special measure’ available in open court proceedings – namely, getting judges and advocates to take off their gowns and wigs (for advocates who wear wigs) – while children or vulnerable witnesses give evidence (YJCEA 1999, s 26) – has no resources implications for the Lord Chancellor.