Response to consultation
Nominally at least, the consultation period is closed for Family Procedure (Amendment No. X) Rules 2015, Part 3A - Children and vulnerable persons: participation in proceedings and giving evidence
for commentary on the draft rules). My response is in; for those who want it in its gory detail, it can be found here
. This note provides only a summary of the draft, and then goes on to consider a factor that the Family Procedure Rules Committee (FPRC) seems to have neglected - namely, to look at the statutory or common law underpinning of the proposed reforms.
The draft rules seek to create a series of court duties: should a child participate in proceedings (r 3A(2)) and, if so, how (r 3A(3)); whether a party to, or a witness in, proceedings may have their participation diminished by what is not stated? Of 'diminished' the rules-makers are trying to question are they 'vulnerable'? If all this applies the court can provide the 'assistance' of 'measures' (r 3A(7)). This is what the draft does: the balance (r 3A(8)-(11)) provides the mechanism for all this.
However, judicial duties cannot be created by a rule. They are a matter of law. They create a balancing right that can be enforced, if need be, by prerogative order (obtained on judicial review).Of funding of 'measures' and 'intermediaries'
My response goes on to refer to the central aspect of the amendments: namely, 'measures' to be ordered by the court to assist - supposedly - children and the 'diminished' (draft r 3A(7)). 'Measures' include arrangements for video-link evidence, witnesses not seeing one another, help with communication, and participation 'with the assistance of an intermediary'.
This last term is not defined, but it could span a babysitter to enable a parent to go into court, a special advocate in closed material procedure cases provided by the Attorney-General, and all sorts and variety of intermediary in between. All this will make the scheme work, but who is to pay? Who indeed. With Re K & H (Children)  EWCA Civ 543
decided a month before the FPRC meeting that signed off the draft, you would think more might have been said on the subject.
All this needs a statutory foundation to define the measures, as does provision for their funding (eg for advocates to assist the court with cross-examination of vulnerable witnesses and other, now discretionary, bases for 'measures'; see the contrast between H v L & R  EWHC 3099 (Fam),  2 FLR 162
and Re K & H