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Final report of the Children and Vulnerable Witnesses Working Group: An overview for practitioners

Date:18 MAR 2015
The final report of the Children and Vulnerable Witnesses Working Group has now been delivered and follows the Interim Report released back in August 2014.

The initial aim encapsulated in the President’s 12th View was for the Group to review the Family Justice Council’s April 2010 Guidelines for Judges Meeting Children who are Subject to Family Proceedings [2010] 2 FLR 1872, and to review the Family Justice Council’s Working Party’s December 2011 Guidelines on Children Giving Evidence in Family Proceedings [2012] Fam Law 79. There was also a need to address the wider issue of vulnerable people giving evidence in family proceedings as part of the reform and modernisation of the family court. The focus was:

The role of children and young people - the key here; how to ensure the voices of children and young people could be brought further to the fore in the family courts in a similar manner to criminal cases.

Vulnerable witnesses and parties - the need for a more effective and fairer approach to vulnerable and intimidated witnesses as seen in criminal cases together with the use of toolkits in order to assist advocates maintain best practice.

Funding - the issue of funding intermediaries and for the representation of vulnerable parties continues to be a matter of concern and controversy. If access to justice for vulnerable parties is not to be denied, this is a matter for urgent review and clarification.

The conclusions from the Interim report remain largely unaltered, and although the report is ‘final’ there will actually be another one to look out for by the end of July 2015 which will focus on best practice in evidence gathering from children and young people.

The recommendations from the final report are:

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1. The term 'vulnerable witnesses' should still be used however should be extended to include intimidated witnesses as it does in the criminal court.

2. Reform needs to focus on public law and on private law cases involving domestic abuse where the difficulties are most apparent. In all family proceedings the lack of appropriate support and assistance for witnesses, whether they are parties, the children and young people or interveners would amount to a denial of justice.

3. There should be two new Practice Directions (to be known as PD 3D and PD 3C) to stand alongside the new mandatory rule previously recommended. PD 3C will replace the 2010 Guidelines for judges seeing children and will reflect the Court of Appeal’s decision in Re KP [2014] EWCA Civ 554. PD 3C will include provisions setting out the status of the communication between judge and child; including when any meeting should take place; the persons who should be present and the purpose of any meeting.

PD 3D will make provision for the identification of vulnerable and intimidated witnesses and the arrangements to be put in place (such as the pre-recording of evidence).

4.The PDs should explicitly reference and approve the Advocate’s Gateway (TAG) following the procedure in the Criminal Practice Directions 2013.

5.There should be Open Days held at the family courts to increase public access and allow members of the public, including children and young people to see what is happening. Each Designated Family Judge should nominate a judge within their court to deal with and encourage ways of the public and schools having access to the courts and judges on the open days.

6.Modernisation and reform must include the direct evidence of children and support for the evidence of children to be heard at the youngest age appropriate for each child; including children of pre-school age. There must be provision for their evidence to be heard as directly as possible without interpretation by the court appointed officers or others.

7.There should be a new mandatory rule in respect of Vulnerable and Intimidated Witnesses/Parties and Children supplemented by practice directions and guidance approved by the President.

8.The new mandatory rule will be inserted in the Family Procedure Rules 2010 (as amended) as rule 3B after the existing rule 3 (which will then be known as rule 3A). The rule will:

– emphasise the importance of the role of the child in proceedings and the need to identify the necessary support and special measures for vulnerable witnesses or parties from the earliest opportunity;

– be part of the over-riding objective and a reference to it will be include in rule 1 at FPR 2010 r1.1(2) (d) (for the full draft rule see Appendix III);

– require that court considers the role of the child or young people and how best to put their direct evidence before the court. The application of the new PD 3C regarding the court seeing the child or young people will be considered at the outset of proceedings;

– require that the court to identify whether a party or witness is vulnerable at the outset of the proceedings or as soon as they become involved and make provision for any support, special measures or other assistance they may need to give best evidence;

– require that the all the advocates and representatives of the parties must identify if a party or witness is vulnerable or intimidated and consider how best he or she can be supported and assisted to give their best evidence 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.

9.There should be a requirement in the same terms for LiPs.

10.There should be training for all family judges in seeing children in the form of an additional module during Judicial College training for Public and Private Law and online material.

11.The Public Law Outline or Child Arrangements Programme should be amended to ensure the 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.

12.The rule and PDs will be drafted with reference to the existing Special Measures Directions In the Case of Vulnerable and Intimidated Witnesses and the Criminal Procedure Rules for ground rules hearings, due to be published in April 2015.

13.The new rule and PDs and amendments to the existing PDs should be drafted in consultation with the FJC, FJYPB, the judiciary and the drafts sent for wider consultation to MoJ and HMCTS.

14.Particular consideration should be given to the provisions for parties and witnesses in cases of forced marriage and female genital mutilation who are likely to be vulnerable witnesses requiring support and special measures.

15.Training of advocates is already in place and will go forward under the ATWG (Family) lead by Newton J.


The Working Group want the rule change to be in place when the Rules Committee can consider such changes later in spring 2015. 

They will prepare a further report to make recommendations as to best practice in evidence gathering from children and young people which will be provided by 30 July 2015.