On the 27th November 2017 a new Part 3A of the Family Procedure Rules 2010 comes into force supplemented by a new Practice Direction 3AA. The purpose of the new Part 3A is twofold:
- to set out the court’s duties and powers in relation to assisting parties whose ability to participate in family proceedings may be diminished by reason of their vulnerability, and
- to assist parties and witnesses in family proceedings where the quality of their evidence is likely to be diminished by reason of their vulnerability.
The changes to the 2010 Rules are intended to improve the treatment of vulnerable witnesses and parties in family proceedings so as to ensure that a fair hearing takes place. The 2015 report of the Vulnerable Witnesses and Children Working Group found that the family justice system lagged behind the criminal justice system in its procedures for taking evidence from vulnerable witnesses. The new rules are said to be part of wider work that the Ministry of Justice is now undertaking to improve the treatment of vulnerable court users (including fresh training for court staff and investing in the court estate to improve facilities), drawing on lessons that have been learnt in criminal justice.
The Practice Direction makes it plain that it is the duty of the court and all parties to the proceedings to identify any party or witness who is a vulnerable person at the earliest possible stage of any family proceedings.
Rules 3A.4 and 3A.5 place a duty on the court to consider whether a party’s participation in the proceedings or the quality of their evidence is likely to be diminished by reason of vulnerability and, if so whether it is necessary to make one or more participation directions[1]. A ‘participation direction’ is defined in Rule 3A.1 as meaning either: (a) a general case management direction made for the purpose of assisting a witness or party to give evidence or participate in proceedings, or (b) a direction that a witness or party should have the assistance of one or more of the measures in rule 3A.8. These measures include the use of screens, participation in hearings or the giving of evidence by live link, providing a party or witness with a device to help communicate and intermediaries being used to assist a party or witness participate in the proceedings and/or give evidence.
General case management powers may include directions in relation to the structure and timing of the hearing, the formality of the language to be used in the court and even how the parties should be able to enter the court building and use different waiting areas[2].
Before making a participation direction, the court must consider any views expressed by the party or the witness about giving evidence. Where a party is a protected party (covered in Part 15 of the Rules) the court must consider any views expressed by the protected party’s litigation friend.
Rule 3A.7 is important as it sets out what factors the court must have regard to when deciding whether to make one or more participation directions. The reader is urged to consult the list in full. By way of summary, the court should have regard in particular to:
- the impact of any actual or perceived intimidation (by any other party, witness, family member or associates)
whether the party or witness suffers from a mental disorder or has a significant impairment of intelligence or social functioning, has a physical disability or physical disorder or is undergoing medical treatment - the issues arising in the proceedings including any concerns arising in relation to abuse
- whether a matter is contentious
- the age, maturity and understanding of the party or witness
- the social and cultural background and ethnic origins of the party or witness
- the domestic circumstances and religious beliefs of the party or witness
- any characteristic of the party or witness which is relevant to the participation direction which may be made
- whether any measure is available to the court and the costs of such measures
Further guidance on vulnerability is given at paragraph 3.1 of the Practice Direction. The court should also consider the ability of the party or witness to: (a) understand the proceedings and their role in them, (b) put their views to the court, (c) instruct their representative before, during and after the hearing, and (d) to attend the hearing without significant distress.
Paragraph 2.1 of the Practice Direction gives helpful guidance in respect of concerns arising in relation to ‘abuse’, and these are to include any of the following:
- domestic abuse (within the meaning given in Practice Direction 12J)
- sexual abuse
- physical and emotional abuse
- racial and/or cultural abuse or discrimination
- forced marriage or so called ‘honour based violence’
- female genital or other physical mutilation
- abuse or discrimination based on gender or sexual orientation
- human trafficking
Once a court decides that a vulnerable party, vulnerable witness or protected party should give evidence then there must be a ‘ground rules hearing’ prior to any hearing at which evidence is to be heard. This need not be a separate hearing to any other hearing in the case but at the ground rules hearing the court will make any necessary participation directions. Pertinent matters to which the court must consider at such a hearing are fully set out at paragraph 5 of the Practice Direction. For example, if a vulnerable party, vulnerable witness or protected party has previously given evidence in criminal proceedings and that evidence has been pre-recorded or they have given an interview which was recorded but not used in previous criminal proceedings or family proceedings then the court should consider those recordings being used in the family proceedings.
All advocates (including those who are litigants in person) are expected to be familiar with and to use the techniques employed by the toolkits and approach of the Advocacy Training Council[3].
What will this all mean in practice? The Rules do provide some assistance with regard to court resources. For example, if the family court makes a direction for a measure which is not available where the court is sitting, it may direct that the court will sit at the nearest or most convenient location where the family court sits and the measure is available. However, nothing in the rules gives the court power to direct that public funding must be available to provide a measure and the court cannot direct an officer of Cafcass to perform any new functions. And if the measure considered by the court to be necessary is not available then the court must set out clearly in its order the reasons for the non-availability.
In the author’s opinion, the new Rules and Practice Direction are essential reading for all family advocates and provide a very useful codification of the factors that the court must look at; particularly in public law cases where a high proportion of parents will be considered to be vulnerable parties. The only concern is whether court resources can currently match what is to be expected under the Rules. No doubt, time will tell.
[1] N.B. Rule 3A.4 does not apply to a child and Rules 3.A4 and 3A.5r do not apply to a party who is a protected party. Protected parties are provided for in Rule 3A.6 [2] See paragraph 4.2 of the Practice Direction [3] These can be found at www.theadvocatesgateway.org/toolkits
