Natalie Cross summarises important guidance on the approach to be taken to vulnerable witnesses and parties in the Family Courts.
On 2nd September 2019 Vulnerable Witnesses and Parties in the Family Courts – Toolkit 13 was published. It is 64 pages long and contains really useful information and guidance for us including helpful examples of “good practice”.
Its objective is to maximise the opportunity for vulnerable witnesses (VW) to give effective evidence.
It is directed that all advocates, including LIP, are expected to be familiar with the toolkit. (PD3AA para 5.7)
These are the type of factors that might lead to the conclusion that a party or a witness is a VW (Rule 3A.7):
- Impact of actual or perceived intimidation
- Significant impairment of intelligence or social functioning
- Mental disorder
- Physical disability or disorder v) Undergoing current medical treatment/medication
- Issues in the proceedings including abuse eg sexual, physical, domestic, racial, sexual orientation, FMH, forced marriage, honour related issues, human trafficking
- Whether the matter is contentious
- Age, maturity, understanding
- Social and cultural background and origins
Children are automatically VWs.
It is clear from the above that many of those giving evidence in care proceedings are likely to be VW by the very nature of the case.
The Court should consider the issue at the earliest opportunity.
Applying for a Participation Direction
The application should include:
- Why the person would benefit from assistance
- Measures likely to maximise the quality of evidence
- And why they would assist
Participation directions can be given at this stage including:
- Directions on structure/timing of the hearing
- Formality of language to be used
- How VW and parties enter/leave the building
- Live link
- Use of devices eg tablet or timeline
If the Court decides that a witness is vulnerable it MUST move to decide whether participation directions are necessary and if so identify what is required at a GRH.
Ground Rules Hearing - GRH
This is a hearing to consider the conduct of the advocates and parties in relation to the evidence of VW and putting the necessary support in place which might include:-
- What time of day questioning should take place
- Will questions be submitted in advance to the Judge
- What topics will be covered
- Will VW who has been ABE interviewed see their interview in advance
- How should questions be put to assist understanding eg short questions; simple language
- How long will questioning last
- Who will conduct questioning eg one advocate on behalf of all parties
- Conduct of cross-examination eg avoidance of repetition; questions agreed in advance
- Pre-recorded evidence
- Who may be present eg support worker
- Oath arrangements
- Scheduled breaks
- Communication aids
- Where will VW give evidence eg at home; in a suitable location nearby
- If the VW is to attend court, provision of separate entrance waiting room
The advocates and the court will also need to consider the balance between protective measures for the VW against the effect that these measures will have upon the weight that will be given to the evidence.
This article serves as a summary only. Family Procedure Rules 2010 Part 3A, Practice Direction 3AA and the Toolkit are essential reading.