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The Children and Vulnerable Witnesses Working Group – Essential Update

Date:13 AUG 2014

Jo Morris

The President’s12th 'View from the President’s Chambers', published on 4 June 2014, introduced two working groups which were to produce their interim reports by 31 July 2014; the Children and Vulnerable Witness Working Group and the Financial Remedies Working Group (who are working on the new Money Arrangements Programme - the MAP). Those reports have now been released and contain a lot of reading for the family practitioner. There is a wealth of content and we are producing essential updates designed to give family law professionals a neat summary of the need-to-know points.

In a nutshell

The President’s 12th View set out three main aims for the Children and Vulnerable Witnesses Working Group headed by Hayden J and Russell J. The Working Group has now published an interim report, a summary of which is set out below.

When:

12 August 2014 - The report was circulated.

Further consultation is now to take place, with Family Division Judges and the Family Justice Counsel, followed by a wider consultation once the draft rules have been refined.

Late October 2014 - It is intended that the proposed rule changes are to be put before the Family Procedure Rule Committee (FPRC) . The Working Group is scheduled to meet again in early October for further discussion of the draft rules.

Beginning of 2015 - The aim is to have the changes in place by the beginning of 2015.

The report:

The Children and Vulnerable Witnesses Working Group Interim Report

Summary of the report:

1. Review of the Family Justice Council’s April 2010 Guidelines for Judges Meeting Children who are Subject to Family Proceedings [2010] 2 FLR 1872

Practitioners will be aware of the MoJ announcement made on 24 July 2014 that children are to be given the opportunity to meet and communicate with the professionals involved with their case. This is to include Cafcass workers, social workers, the judges and legal representatives. The report refers to the Rt Hon Simon Hughes MP's speech to the Family Justice Young People's Board 'Voice of the Child' conference, which can be read here.

2. Review of the Family Justice Council’s Working Party’s December 2011 Guidelines on Children Giving Evidence in Family Proceedings [2012] Fam Law 79

3. Review of the issue of vulnerable people giving evidence in family proceedings

The second and third issues to be tackled by the working group have a considerable amount of overlap, children are inherently vulnerable witnesses. The report therefore addresses both these issues together.

Preliminary observations

The intention is to build upon the work done by the Advocacy Training Council (ATC) as set out in their 2011 report, Raising the Bar. The principles contained in the report have been successful in the criminal justice system, and the Working Group intend to adapt those principles for use in the family justice system. This is to include the provision of training for advocates as well as support for witnesses to give their evidence where needed.

The benefits of this are considered to be creating the optimum conditions for the giving of evidence and a more effective and efficient use of court time, both of which promote a greater likelihood of a fair hearing.

The Advocates’ Gateway is preparing a toolkit for use in family proceedings containing general guidance for family lawyers and advocates. This is currently in draft format and is due to be published in October 2014.

The report details efforts made by some judges on their own initiative to assist vulnerable witnesses, His Honour Judge Clive Heaton QC is specifically thanked for his contributions. The fact that judges have needed to take these steps is cited as a further illustration of the need for a formal procedure across the family justice system.

Work so far undertaken

The Working Group took some time to consider whether the term 'vulnerable witnesses' is the most appropriate one, but concluded that it remains appropriate for the term to be used.

The group also considered whether reform needs to be focused on public law, as parents in care cases are often vulnerable, and on private law cases involving domestic abuse. Attention was drawn to the cases where domestic abuse victims face cross-examination by the alleged abused directly, rather than by an advocate, due to the unavailability of public funding. See the President’s judgment in Q v Q; Re B; Re C [2014] EWFC 31, [2014] 2 FLR (forthcoming) on this and other related issues. However reform is to apply to all family cases from the outset.

The review of the guidance for judges seeing children will be taking place alongside the consideration of the reforms for vulnerable witnesses. There is a pilot scheme currently taking place in York where any child over the age of 10 is to be given the opportunity to see the judge. The progress of this pilot scheme will be reported back to the Working Group.

The ATC are willing to provide guidance and toolkits for advocates in the family courts, and a further meeting is due to take place regarding this in late September/early October 2014.

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Proposals and initial recommendations

The Working Group (WG) have made the following initial recommendations to assist judges in identifying and dealing with vulnerable witnesses and to enable advocates to handle and question such parties and witnesses:

That the reforms should apply to all family court cases from the outset.
There should be a new mandatory rule in respect of Children and Vulnerable Witnesses and Parties supplemented by practice directions (PD) and guidance approved by the President.
The term vulnerable witness should remain in use as it is not desirable for the family court procedure to become distanced or uncoupled from the practice and procedure as it has developed in the criminal justice system. The term needs to be extended to cover the parties as well as witnesses.
The rule/s should be inserted in the Family Procedure Rules 2010 (FPR 2010) (as amended) at the earliest point of the rules to emphasise the importance of the role of the child and the need to identify the necessary support /special measures for vulnerable witnesses and/or parties from the start of any proceedings, or at the earliest opportunity.
There should be a new Part 4 to the FPR 2010.
The rule should require that the court/judge will recognise the role of the children and/or needs of children at the outset of proceedings either as participants in proceedings who should be given the opportunity of communicating with the judge; and/or as witnesses and consider the how best to provide for their participation and support.
The rule should require that the court/judge will identify whether a party or witness is vulnerable at the outset of the proceedings or their involvement in proceeding (whichever is the sooner) and make provision for such support, special measures or other assistance they may need to properly and fully participate in the proceedings and to give best evidence.
The rule should require that the all the advocates and representatives of the parties must identify 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.
The rule should require that all advocates and representatives of the parties must identify if a party or witness is vulnerable and consider how best he or she can be supported and assisted to give best evidence.
There should be a requirement in the same terms for Litigants in Person.
There should be a PD(4) based on the FJC guidance for judges seeing children, which reflects the Court of Appeal’s decision in Re KP (Abudction: Child's Objections) [2014] EWCA Civ 554, [2014] 2 FLR (forthcoming and reported at [2014] Fam Law 945) and gives consideration to the provisions of the Charter and the experience of the judiciary.
In addition there should be consideration of the status and nature of the contents of the communication between judge and child.
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; such as by amendment of the Public Law Outline or Child Arrangements Programme.
The rule and practice direction should be drafted with reference to the existing Special Measures Directions In the Case of Vulnerable and Intimidated Witnesses, and the procedure and practice that have developed in the criminal courts pursuant to the 1999 Act and the work of the ATC.
Particular consideration should be given to the provisions for parties and witnesses in cases of forced marriage (FM) and female genital mutilation (FGM). In FM cases nullity hearings are in open court when the protected person is a vulnerable witnesses who is likely to have to give evidence of a most intimate and sensitive nature. In FGM cases the child and/or other witness are most likely to need support and special measures for the same or similar reasons and such support and assistance should be provided by the judge, court and advocates.
The new rule and PD and amendments to the existing PDs should be drafted by the WG in consultation with the Family Justice Council (with its interdisciplinary membership), Family Justice Young People’s Board, the judiciary and the drafts sent for wider consultation to MoJ and HMCTS.
The rule change should be implemented by way of training for the judiciary and advocates.
Training for the judiciary should be in the form of an additional module during Judicial College training for Public and Private Law and online material both in respect of judges seeing children and regarding vulnerable witnesses.
Advocates should be expected to attend for additional training (as criminal advocates did); the ATC will provide additional and specific guidance for advocates in family cases as part of the toolkit.
The WG should identify the training and guidance needed in order that the ATC provide it. The WG should seek the assistance of practitioners’ groups in developing the areas of training and guidance.
In brief, changes to the Family Procedure Rules are coming and practitioners must be prepared for these!

To do:

(1) This is only an interim report, and implementation of the proposals is not expected until later this year/the beginning of 2015. Keep an eye on Family Law for further updates.

(2) In the meantime, if you have any observations after reading the report send them to the President’s Assistant Private Secretary, Jo Wilkinson, by email to Joanna.wilkinson@judiciary.gsi.gov.uk.

(3) Diarise for the end of October to check whether the Working Group have produced a further report following their meeting in early October and for the Advocates’ Gateway toolkit, also due in October.

(4) Check out our MAP Essential Update!

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