We have a new Practice Direction 3AA which covers participation in proceedings for vulnerable person who will be required to give evidence, which is effective from February 2021
BRIEF SUMMARY OF IMPORTANT POINTS
It is essential to seek a Ground Rules Hearing as early as possible in the proceedings. It is important to raise this if your client is vulnerable, even if it has not been determined that they need the assistance of an intermediary, as they may be vulnerable in other ways. If a psychological assessment has taken place this will assist. However, in order to make this decision, it is important to look at the background and capabilities of the person. It therefore becomes important for a discussion to take place between Counsel and the Instructing Solicitor to decide on whether and how the client can best be assisted to give their best possible evidence. I would recommend that time is taken be-fore proceedings commence to have a conference with the client which would in normal circum-stances mean arranging a conference with the client preferably at the solicitor’s office, but in the current climate means, a telephone or preferably a zoom conference.
The practice direction gives guidance as to what needs to be considered to ensure that a vulnerable witness is enabled to participate fully. In order to assist the court it is recommended that the representative gives a brief outline to the Court of the ways in which the vulnerable person can be assist-ed. Para (1.4) and (Practice Direction 6). It will be a matter for the Court ( rules 1.1(2); 1.2 &1.4 and Part 3A FPR) to decide and to give directions for the participation of the vulnerable witness, which will include inter alia what support should be put in place; whether the witness should be recorded prior to hearing; the manner of cross examination (Practice Direction 5 – rule 3A.3 (1) FPR.
HERE IS THE PRACTICE DIRECTION IN FULL:
Practice Direction 3AA – Vulnerable persons: Participation in proceedings and giving evidence
Paras 1.1 to 6.1.
1. Preamble and interpretation
1.1 Part 3A FPR makes provision in relation to vulnerable persons (parties and witnesses), including protected parties, in family proceedings.
Rule 3A.4 FPR places a duty on the court to consider whether a party’s participation in the proceedings is likely to be diminished by reason of vulnerability and, if so whether it is necessary to make one or more participation directions (as defined in rule 3A.1 FPR). Rule 3A.4 FPR does not apply to a child or to a party who is a protected party.
Rule 3A.5 FPR places a duty on the court to consider whether the quality of evidence given by a party or witness is likely to be diminished by reason of vulnerability and, if so whether it is necessary to make one or more participation directions. Rule 3A.5 FPR does not apply to a party who is a protected party.
Rule 3A.6 FPR places a duty on the court to consider whether it is necessary to make one or more participation directions to assist a protected party in proceedings, or a protected party giving evidence.
1.2 This Practice Direction sets out the procedure and practice to be followed to achieve a fair hearing by providing for appropriate measures to be put in place to ensure that the participation of par-ties and the quality of the evidence of the parties and other witnesses is not diminished by reason of their vulnerability.
1.3 It is the duty of the court (under rules 1.1(2); 1.2 & 1.4 and Part 3A FPR) and of all parties to the proceedings (rule 1.3 FPR) to identify any party or witness who is a vulnerable person at the earliest possible stage of any family proceedings.
1.4 All parties and their representatives are required to work with the court and each other to ensure that each party or witness can participate in proceedings without the quality of their evidence being diminished and without being put in fear or distress by reason of their vulnerability as defined with reference to the circumstances of each person and to the nature of the proceedings.
1.5 In applying the provisions of Part 3A FPR and the provisions of this Practice Direction, the court and the parties must also have regard to all other relevant rules and Practice Directions and in particular those referred to in the Annex to this Practice Direction.
2. Factors to which the court has to have regard when considering the vulnerability of a party or witness mentioned: rule 3A.3(1) FPR
2.1 Rule 3A.3 FPR makes clear that when considering the vulnerability of a party or witness for the purposes of rule 3A.4 FPR (the court’s duty to consider how a vulnerable party other than a child can participate in the proceedings) or rule 3A.5 FPR (the court’s duty to consider how a vulnerable party or witness can give evidence), the court must have regard in particular to the matters set out in paragraphs (a) to (j) and (m) of rule 3A.7 FPR. Where rule 3A.7(d) refers to questions of abuse, this includes any concerns arising in relation to any of the following-
a) domestic abuse, within the meaning given in Practice Direction 12J;
b) sexual abuse;
c) physical and emotional abuse;
d) racial and/or cultural abuse or discrimination;
e) forced marriage or so called “honour based violence”;
f) female genital or other physical mutilation;
g) abuse or discrimination based on gender or sexual orientation; and
h) human trafficking.
3. Guidance about vulnerability: rule 3A.3(2) FPR
3.1 Rule 3A.3 FPR requires the court to have regard in particular to the matters set out in paragraphs (a) to (j) and (m) of rule 3A.7 FPR when considering the vulnerability of a party or witness other than a protected party. The court should require the assistance of relevant parties in the case when considering whether these factors or any of them may mean that the participation of any party or wit-ness in the case is likely to be diminished by reason of vulnerability. When addressing this question, the court should consider the ability of the party or witness to-
a) understand the proceedings, and their role in them, when in court;
b) put their views to the court;
c) instruct their representative/s before, during and after the hearing; and
d) attend the hearing without significant distress.
4. Participation directions: participation other than by way of giving evidence
4.1 This section of the Practice Direction applies where a court has concluded that a party’s participation in proceedings (other than by way of giving evidence) is likely to be diminished by reason of vulnerability, including cases where a party might be participating in proceedings by way of asking questions of a witness.
4.2 The court will consider whether it is necessary to make one or more participation directions, as required by rule 3A.4. The court may make such directions for the measures specified in rule 3A.8. In addition, the court may use its general case management powers as it considers appropriate to facilitate the party’s participation. For example, the court may decide to make directions in relation to matters such as the structure and the timing of the hearing, the formality of language to be used in the court and whether (if facilities allow for it) the parties should be enabled to enter the court building through different routes and use different waiting areas.
5. Participation directions: the giving of evidence by a vulnerable party, vulnerable witness or protected party
5.1 This section of the Practice Direction applies where a court has concluded that a vulnerable party, vulnerable witness or protected party should give evidence. In reaching its conclusion as to whether a child should give evidence to the court, the court must apply the guidance from relevant caselaw and the guidance of the Family Justice Council in relation to children giving evidence in family proceedings.
Ground rules hearings
5.2 When the court has decided that a vulnerable party, vulnerable witness or protected party should give evidence there shall be a “ground rules hearing” prior to any hearing at which evidence is to be heard, at which any necessary participation directions will be given-
a) as to the conduct of the advocates and the parties in respect of the evidence of that person, including the need to address the matters referred to in paragraphs 5.3 to 5.7, and
b) to put any necessary support in place for that person.
The ground rules hearing does not need to be a separate hearing to any other hearing in the proceedings.
5.3 If the court decides that a vulnerable party, vulnerable witness or protected party should give evidence to the court, consideration should be given to the form of such evidence, for example whether it should be oral or other physical evidence, such as through sign language or another form of direct physical communication.
5.4 The court must consider the best way in which the person should give evidence, including considering whether the person’s oral evidence should be given at a point before the hearing, recorded and, if the court so directs, transcribed, or given at the hearing with, if appropriate, participation directions being made.
5.5 In all cases in which it is proposed that a vulnerable party, vulnerable witness or protected party is to be cross-examined (whether before or during a hearing) the court must consider whether to make participation directions, including prescribing the manner in which the person is to be cross-examined. The court must consider whether to direct that-
a) any questions that can be asked by one advocate should not be repeated by another without the permission of the court;
b) questions or topics to be put in cross-examination should be agreed prior to the hearing;
c) questions to be put in cross-examination should be put by one legal representative or advocate alone, or, if appropriate, by the judge; and
d) the taking of evidence should be managed in any other way.
5.6 The court must also consider whether a vulnerable party, vulnerable witness or protected party has previously-
a) given evidence, and been cross-examined, in criminal proceedings and whether that evidence and cross-examination has been pre-recorded (see sections 27 and 28 of the Youth Justice and Criminal Evidence Act 1999); or
b) given an interview which was recorded but not used in previous criminal or family proceedings. If so, and if any such recordings are available, the court should consider their being used in the family proceedings.
5.7 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. The toolkits are available at www.theadvocatesgateway.org/toolkits. Further guidance for advocates is available from the Ministry of Justice at http://www.justice.gov.uk/guidance.htm.
6. Matters to be included in an application form for directions: rule 3A.10(2) FPR
6.1 An application for directions under Part 3A FPR should contain the following information, as applicable:
a) why the party or witness would benefit from assistance;
b) the measure or measures that would be likely to maximise as far as practicable the quality of that evidence;
c) why the measure or measures sought would be likely to improve the person’s ability to participate in the proceedings; and
d) why the measure or measures sought would be likely to improve the quality of the person’s evidence.
As noted at paragraph 1.5, in applying the provisions of Part 3A FPR and the provisions of this Practice Direction, the court and the parties must also have regard to all other relevant rules and Practice Directions and in particular-
• Part 1 FPR (Overriding Objective);
• Part 4 FPR ( General Case Management Powers);
• Part 12 FPR and Practice Direction 12J
• Part 15 FPR (Representation of Protected Parties) and Practice Direction 15B (Adults Who May Be Protected Parties and Children Who May Become Protected Parties in Family Proceedings);
• Part 18 FPR (Procedure for Other Applications in Proceedings);
• Part 22 FPR (Evidence);
• Part 24 FPR (Witnesses, depositions generally and taking of evidence in Member States of the European Union);
• Part 25 FPR (Experts) and the Experts Practice Directions;
• Rule 27.6 FPR and Practice Direction 27A (Court Bundles);
• Part 30 FPR (Appeals) and Practice Direction 30A (Appeals).
It is hoped that the above brief summary and the new Practice Direction are clear, but if further guidance or assistance is required then do not hesitate to contact Chambers who will arrange for a member to give further advice.