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Edward Bennett
Edward Bennett
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Vulnerable individuals and children in family proceedings
Date:12 OCT 2015
Solicitor Advocate
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 (see here 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) [2015] 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 [2006] EWHC 3099 (Fam), [2007] 2 FLR 162 and Re K & H (above).

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My response to the consultation proceeds by examining the rules with detailed commentary thereon, but before it does so it alludes to the rules' main failings (apart from the question of their statutory vires):

  • FPRC are trying to deal with two quite separate subjects: children and their part in proceedings and/or seeing the judge, and vulnerable individuals (parties and witnesses) taking part in family proceedings. These must be separated.
  • The term 'diminished', in context, is of limited meaning.
  • How are their central features (intermediaries) to be funded?
  • How will their requirements, especially for evidence, work where the open justice principle applies in family proceedings?
  • There is no point in family lawyers inventing the wheel: all civil jurisdictions must sign up to a fresh set of rules (so far as they are needed) to cover the subject.
The way forward

The way forward for the FPRC on vulnerable individuals and children could be relatively simple:

  1. To draft rules that deal specifically for children to be heard (this is a separate subject for which the existing and proposed draft rules do not clearly provide);
  2. That application can be made by vulnerable individuals (which may include individuals under the age of 18) to have their evidence dealt with by intermediary or other specific means (video etc) broadly, as in draft r 3A(7);
  3. To ensure by slight amendment (or reference in practice direction) that case management directions take account of the special needs of vulnerable individuals.
Case management and marshalling of evidence in the case of children and vulnerable individuals can be left in the appropriate parts of the rules: Parts 4, 16 and 22-24, and r 12.12. Statutory provision must be made for any funding requirements of these three factors, including funding of the need identified by Roderic Wood J and HHJ Bellamy in H v L & R and Re H & K at first instance. And as soon as Parliamentary time permits, statutory provision must empower funding arrangements and, if truly still needed, statutory duties must be created.

Until these simple principles are met, accepted and translated into simple rules (as required by the Courts Act 2003, s 75(5)) the draft rules should be consigned to history and the job done on a principled and legal basis. Oh, and yes: all these amendment rules must apply across the spectrum of civil proceedings in all courts, tribunals and magistrates' courts.
The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.