Judges hearing children

The Group reviews the existing guideline for judges in seeing children and finds them to be flawed. They point out (para 24) the importance of distinguishing between the fact that the judge is not intended to gather evidence; but should consider their wishes and feelings. So, says the Group, ‘There is a need for the evidence of children and young people to be put before the family court as it would be in criminal proceedings’ (para 26). The report concluded on this subject:

‘It is the view of the [Group: WG] that the Family Court has fallen behind the criminal courts in its approach to their evidence … Those young people that the WG heard from do not expect, or even want, the judge to do as they say; they want to know that they have been listened to and this perceived (and in many cases actual) defect cannot be cured with by meeting the judge or tribunal alone if at all. To hear a child must mean to hear her or his evidence and if the child/young person is not going to give oral evidence there must be provision for their evidence to be heard as directly as possible without interpretation by the court appointed officers or others.’

Of terminology: the Group preferred to retain its existing terms for the individuals involved, namely ‘children’ and ‘vulnerable witnesses’. To this they add ‘intimidated witnesses’ (para 30). This means incorporating into any definition of what is intended to be covered by the rules what exactly is meant by ‘witness’; and that it may include a party. Witnesses will in rare cases also involve those who are examined for the court (as in Re K and H: a father did not want to have to cross-examine his step-daughter who made the allegations against him which brought the case to court; and the judge said this was not the court’s role either). This will involve FPRC in the drafting of a careful definition of terms, which the Group’s drafting has so far evaded. Its present draft rule has no definition of to what the rule is addressed and as to exactly when it will apply (para 35(v)).

Rule changes

Given the nature of the subject-matter – children, intimidated and vulnerable witnesses often in proceedings where there will be no legal representation – the FPRC are urged to recall their pre-eminent statutory duties (as set out in Courts Act 2003, s 75(5)). Those duties are that their rule making powers should be used in such a way as to set out rules which ensure that ‘(a) the family justice system is accessible, fair and efficient, and’ that ‘(b) the rules are both simple and simply expressed’.

Quite apart from its uncertain grammar, the present draft is not ‘simple or simply expressed’ – certainly not by a standard which most lay readers (and indeed many lawyers) would understand. For example, the long sentences in the rules seem to leave its own drafter sometimes confused. The draft does not define what is the meaning of its own subject matter: namely (1) ‘vulnerable witnesses’, (2) ‘children’ (which will not be the same as the definition in Children Act 1989, s 105, since their understanding of the proceedings will be part of the definition) and ‘intimidated witnesses’. It leaves important matters vague ‘such other matters which appear to the court to be relevant’ (draft r 3B.1(3)(d)).

Much of the proceedings to which these new rules will be addressed will be lay people. The drafting of any rules must surely recognise this? One of the great advances with the drafting of Civil Procedure Rules 1998 was short sentences and a number of one sentence rules. The drafting of the proposed Family Procedure Rules 2010 Part 3B, as now presented, goes back to an earlier period of rule drafting.

It is sincerely to be hoped that the present drafters of the draft rules at para 35(v) will carefully reconsider their draft and reframe it with simplicity, clarity and aptness to the subject matter, and its lay readers, in mind.

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The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.