Hearing from children
and evidence of vulnerable witnesses: working group
Last summer’s interim report from the ‘vulnerable witnesses
and children’ working group has now produced its
Report of the Vulnerable Witnesses and Children Working Group February 2015 (published in March 2015 by Judiciary of England and Wales). To its original title must now be added ‘intimidated witnesses’ (as will be
explained). Of family procedure’s three hot topics – vulnerable witnesses,
transparency and legal aid (funding) only the witnesses aspect is considered,
though each might be thought to be interrelated – especially children and
transparency and legal aid and intimidated witnesses. For example where
children are parties to proceedings legal aid will not be an issue; whereas for
many ‘vulnerable’ individuals legal aid will by no means be guaranteed; and for
‘intimidated witness’ there may be a call for the Attorney-General to be
involved.
The interim report of the working group can be found at
here.
My own response to that interim report is
here.
The report
The report combines judicial concerns in relation to
children meeting judges in the family courts and – which is not necessarily the
same thing (as the report stresses) – children giving evidence in court; and
the need ‘to address the wider issue of vulnerable people giving evidence in
family proceedings’ (para 1). The report draws attention to practices in the
criminal courts where – as Roderic Wood emphasised in
H v L and R [2006] EWHC 3099 (Fam), [2007] 2 FLR 162 – the rules
and prevailing procedures are much more appropriate to children. It singles out
(para 8) the illuminating comments on children evidence of Lord Judge LCJ in
R v Barker [2010] EWCA Crim 4, at paras
[38]–[43]. (It is difficult to suggest a more helpful starting point for the
Group’s work than what was said by Lord Judge.)
The report points out (para 10) that ‘particularly in public
law’ (
sic) the adults as well as the
children ‘are frequently “vulnerable witnesses”’ (a cross-reference is given
here which leads nowhere’). Unfortunately no attempt is made in the text of the
report or in the draft rule to define what is meant by this. For example,
reference is made (para 13) to the recent
Re
K and H (Children: Unrepresented Father: Cross-Examination of Child) [2015]
EWFC 1, [2015] 1 FLR (forthcoming and reported at
[2015] Fam Law 276) His Honour Judge Bellamy sitting as a Deputy High Court judge; yet the
issue in that case was not the particular vulnerability of a witness but the
appropriateness of a judge cross-examining a witness for the father applicant
and the funding of an advocate (by HMCTS or perhaps the Attorney-General) to
carry out that examination for the court (Matrimonial and Family Proceedings
Act 1984, s 31G(6)(b)).
Did the Working Group intend to look at the particular
funding issues which
Re K and H
throws up? ‘Funding’ is touched upon as ‘a matter of concern and some
controversy’ (para 20). Its ‘ad hoc’ nature is said to be ‘unsatisfactory’.
But no recommendations are made by the Group as to how funding controversies
might be resolved in the particular instances which arise; and, for example, no
reference to the role which the Attorney-General (looked to by Roderic Wood J
in
H v L) might perform in assisting
the court.