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!