On 5 December 2020 the Family Law Bar Association and the Inns of Court College of Advocacy (ICCA) held a pilot session of the new Advocacy and the Vulnerable Training Programme for delegates at the family Bar. The programme has been developed with the objective of providing specialist advocacy training to family barristers, enabling them to gain the skills required to effectively question vulnerable adults and children in the Family Court.

The development of training for the criminal Bar

It has been well recognised that the criminal law has led the way in its approach to the evidence of vulnerable witnesses. Significant change in terms of the questioning of witnesses began in 2010 when in R v Barker the Court of Appeal established that cross-examination and the trial process must adapt to the needs of a child witness, not the other way around.

In 2011, the Advocacy Training Council’s report Raising the Bar – the Handling of Vulnerable Witnesses and Defendants in Court made practical recommendations including the training of barristers, which were subsequently endorsed by Joyce Plotnikoff and Dr Richard Woolfson in Young Witnesses in Criminal Proceedings: A Progress Report on Measuring Up.

In 2014, as a result of government plans for accreditation for advocates handling vulnerable witness cases, the Bar Council, under the leadership of Mrs Justice McGowan followed by Alistair MacDonald QC, set up a working group. The pan-profession group led by HHJ Rook QC went on to develop a national training programme for the criminal Bar, supported by the ICCA. The Advocacy and the Vulnerable Programme is founded on the principle that ‘recognising and dealing appropriately with vulnerability is a skill that can be taught’.

The criminal programme has been available nationally since 2016 and is recognised to have made a substantial contribution to the improvement in the ability of advocates to deal with young and vulnerable witnesses (Judicial Perceptions of the Quality of Criminal Advocacy, October 2018).

The Family Court perspective

For many years in the family courts, children were only exceptionally required to give evidence. In 2010, the Supreme Court decision of Re W removed the presumption against children being called and put in its place a balancing exercise requiring the court to consider competing factors relating to the interests of justice and the child’s welfare.

This led to the publication of the Family Justice Council Guidelines on Children Giving Evidence in Family Proceedings which made recommendations following the principles established by R v Barker.

In 2014, The Advocates’ Gateway published its toolkit Vulnerable Witnesses and Parties in the Family Courts. There remained, however, no coherent procedural regime for vulnerable or child witnesses. In the same year, Sir James Munby set up the Vulnerable Witness and Children Working Group, saying ‘there is a pressing need for us to address the wider issue of vulnerable people giving evidence in family proceedings, something in which the family justice system lags woefully behind the criminal justice system’ (12th View from the President’s Chambers).

The Working Group chaired by Mr Justice Hayden and Ms Justice Russell published its report the following year. It made detailed recommendations including proposed rule changes.

The introduction of Family Procedure Rule 3A and Practice Direction 3AA in November 2017 effected important reforms in respect of vulnerable adult parties and vulnerable adult and child witnesses. Central to the regime are core duties placed on the court, representatives and the parties to work together to ensure that parties and witnesses can fairly participate in proceedings without the quality of their evidence being diminished and without being put in fear or distress by reason of their vulnerability.

The family programme

The ICCA and FLBA have responded to increasing demand from members of the family Bar for specialist advocacy training in respect of the questioning of vulnerable witnesses.

The FLBA training programme has been founded upon the model developed for the criminal Bar and uses an adapted case study and harnesses the same 20 Principles of Questioning which underpin the entire course.

The 20 Principles were originally created by HHJ Sally Cahill QC, and subsequently refined and endorsed by Professor Michael Lamb and Professor Jacqueline Wheatcroft. The 20 Principles provide guidance to advocates in relation to preparation, conduct and questioning, recognising always that the approach to be take in any case will be dependent upon the particular vulnerabilities and needs of each witness or party.

The FLBA course benefits from an introduction by the President of the Family Division, Sir Andrew MacFarlane, and contributions from HHJ Bugg, HHJ Dancey and District Judge Watkins. The development of the FLBA materials would not have been possible without the hard work and dedication of many members of the family Bar as well as other professionals to whom the FLBA extends its sincere appreciation.

The FLBA would like also to extend its thanks and appreciation to the ICCA and, in particular, to the senior members of the Criminal Advocacy and the Vulnerable programme, without whose goodwill the development of the family training would not have been possible. Their ongoing commitment of their own free time to the training of facilitators for the family course and overseeing the quality assurance processes will be a vital aspect of the success of the programme.

What the training involves

The first stage of the training requires delegates to undertake preparatory work by accessing the course materials online. The materials include video, audio and written materials to assist advocates in developing their understanding of the legal framework in respect of vulnerable parties and witnesses as well as necessary advocacy skills. As part of their preparation delegates must submit written questions for three vulnerable witnesses in a fact-finding hearing.

Stage two is a three-hour face-to-face session (currently via video conferencing) delivered by trained FLBA facilitators, who have generously committed their time and energy to the project.

The third and final stage is the consolidation element. Delegates will view three videos, accessed via a Bar Council portal, demonstrating good practice examples of the cross-examination of the witnesses from the case study.

The Bar Council will retain a record of delegates who have successfully completed all three elements of the course.

The future

Feedback from the pilot session suggests that those attending the course should be prepared for a challenging and rewarding experience:

It was really interesting and enjoyable and I learnt a huge amount which I look forward to putting into practice.’ Sandria Murkin

Absolutely first rate course! Tough, really challenging one’s complacency, but taught so very well!’ Jane Rayson

The objective is to make the FLBA Advocacy and the Vulnerable training available to every member of the family Bar who wishes to undertake it via a staged national rollout. Challenges posed by the pandemic have meant that rollout currently remains in its early stages. So far, a small number of facilitators have been trained to deliver the programme. Further cohorts of facilitators will be trained in 2021 making the programme more widely accessible.

The FLBA will advertise delegate sessions as they become available.