In particular, read Toolkit 10 (Identifying Vulnerability in Witnesses and Defendants), and then Toolkit 13. By all means, go on and read all the Toolkits; all are essential reading for family lawyers. Any vulnerable client, and indeed anyone who is vulnerable and attending or appearing in the family courts, needs these measures brought in to safeguard him or her right now.
The guidance from case law is mounting up, see especially: Re M (A Child)  EWCA Civ 1905; Wiltshire Council v N  EWHC 3502 (Fam); Re C (A Child)  EWCA Civ 128; Re X (A Child: Evidence)  EWHC 3401 (Fam),  2 FLR 456; Re A (Vulnerable Witness)  EWHC 1694 (Fam); and Re A (Vulnerable Witness: Fact Finding)  EWHC 2124 (Fam). The Vulnerable Witnesses and Children Working Group (WG) set up by Sir James Munby, President of the Family Division last year and led by Hayden and Russell JJ reported in detail on this issue in February 2015 and, at the time of writing, is expected to produce a further report this summer (see www.judiciary.gov.uk). In its February report, the working group said:
“It is now time to review the Family Justice Council’s Working Party’s December 2011 Guidelines on Children Giving Evidence in Family Proceedings  Fam Law 79…prepared following the decision of the Supreme Court in In re W (Children) (Family Proceedings: Evidence)  UKSC 12;  1 WLR 701...there is now a need 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.”
The working group therefore now proposes reform and modernisation in how the family justice system treats vulnerable witnesses (including parties), and revised rules and Practice Directions on these issues are planned for publication in autumn 2015 and the early 2016 respectively.
Why are changes needed?
Recently in public law proceedings, I represented a mother who has such severe speech problems that professionals cannot understand her. She also has physical difficulties and so cannot write. She had been in a relationship for years with a partner who had been seriously abusing her and their children. When she went to the police to complain of her partner’s behaviour, she was sent away as the police did not understand her and could not take a statement. At one point, when she and the father separated, and both cross-applied for residence orders for the children, no safeguarding measures were used at court and the father was asked to speak on her behalf. Shared residence orders were made, my client was subsequently persuaded to resume the relationship and the abuse continued. Finally, the disclosures from her children began; first by her young daughter (age 5), then by her son. Care proceedings followed. Two ground rules hearings, an intermediary and novel safeguarding measures were used, all of which led to a complete alteration in the way the fact-finding hearing was conducted to enable my client’s evidence to be understood. Her account was heard and believed and finally, after years of abuse, serious findings were made against the father. The beneficial impact on my client was clear to see.
What is shocking to learn is that the criminal justice system has had its own safeguarding measures for vulnerable witnesses in place for many years already (see Counsel, June 2015, “Clear Direction”, Professor Penny Cooper). We family practitioners know that there are at least as many, if not more, such vulnerable witnesses and/or parties in our cases.
Proposals for change
The working group proposes a revised overriding objective, and a new Pt 3B in the Family Procedure Rules 2010, which is due to be published for consultation this summer. This will state (in summary):
“3B.1. (1) For the purposes of this part a party or witness in family proceedings must be considered entitled to assistance on the grounds of age, incapacity or on the grounds of fear or distress
(2) For the purpose of this part a party or a witness is entitled to assistance when –
(a) that person is under the age of 18 at the time of the hearing;
(b) the court considers that the ability of the person to participate in the proceedings will be diminished by reason of any of the circumstances falling within r 3B.1 (3); and/or
(c) the quality of the evidence of the party or witness is likely to be diminished by reason of any of the circumstances falling within r 3B.1 (3)
(3) The circumstances are that the part or witness –
(a) suffers from a mental disorder or otherwise has a significant impairment of intelligence or social functioning;
(b) the nature and circumstances of the allegations with which the party or witness is concerned;
(c) the age of the party or witness;
(d) such other matters which appear to the court to be relevant, namely –
i) the social and cultural background and ethnic origins of the person;
ii) their domestic circumstances and religious beliefs;
iii) medical treatments they are undergoing or disabilities from which they might suffer;
(e) any behaviour towards the party or witness on the part of
i) any other party to the proceedings;
ii) any other family members of that person;
iii) any family members or associates of other parties to the proceedings.
(4) In determining whether a party or witness is entitled to assistance the court must consider any views expressed by that person.
(5) When this part applies -
(a) the court should give directions for the provision of measures, including “special measures,” on an application or on its own initiative for any of the following measures –
i) preventing a party or a witness from seeing the other party or parties;
ii) allowing a party or a witness to participate in hearings and to give evidence by live link;
iii) using a device to help a party or witness to communicate;
iv) providing for a party to participate in proceedings through an intermediary;
v) providing for a party or witness to be questioned through an intermediary;
vi) admitting recorded video evidence;
b) where the court can exercise any power it has to give, vary or discharge a direction a measure to help a party or witness give evidence.
3B.2. (1) The court must take every reasonable step at the first opportunity, and in any event in cases where the PLO applies at the first case management hearing or in private law cases at the FHDRA, to decide whether, as part of its duties under rr 1.1 (2) (d) &1.4 and the application of PD 3B, it should give directions to provide for measures to assist a party or a witness to participate in proceedings and to improve the quality of their evidence –…”
Be in no doubt. We are on the brink of a sea change in how family proceedings are to be conducted in future. We will have to reflect back on previous cases in which vulnerable parties were involved, and ask ourselves, did we do our best for these people? Did they really understand the issues, the evidence, and what we and the court were all saying to them? Were we fair on them? The prospects for a vulnerable party of a final decision in public law cases are extremely serious. So also are the potential final decisions in Child Arrangement Order applications, forced marriage applications, injunctive applications, financial remedy proceedings and other private law matters.
After all, in our daily practice, what is it that most of us want at the conclusion of each set of proceedings? Even if the final decision is not what our client wanted or what we ourselves might have decided, I suspect I am not alone in being able to live with the decision if the judge or tribunal reached it having provided a reasonable analysis of all the relevant evidence, and having allowed all the parties to be able fully to participate in the process and to give their best evidence. We want a fair process.
At a recent conference on Addressing Vulnerability in Justice Systems, run by The Advocate’s Gateway (TAG) team including Professor Penny Cooper, practitioners were informed that training about these measures would be rolled out “in the next 2-3 years”. However, the President, Mr Justice Green, Charles Geekie QC and many eminent others spoke about the urgent need for family advocates to press for these safeguarding measures to be put in place now in all instances which involve a vulnerable witness or party. In Counsel in July, Alistair MacDonald QC wrote that “people…take the view that society is equitable, tolerant and fair”. He wrote of the critical importance of the rule of law. Everyone should be equal before the law.”
So please, read the guidance, and demand these safeguarding measures where and when they are needed. Vulnerable witnesses also deserve to be equal before the law.
Contributor Gillian Geddes, counsel, 2-3 Hind Court