This is an update to an article I published on Becket Chambers’ website in April 2022 entitled “Participation Directions in Family Proceedings, the Domestic Abuse Act 2021 and sexually explicit material.”
This article examines how Part 3A and Practice Direction 3AA of the Family Procedure Rules 2010 (“FPR”) and section 63 Domestic Abuse Act 2021 (“DAA”) have operated in practice as illustrated in the recent case of D v R  EWHC 406 (fam).
The background to the case of D v R was that the parties were in a relationship for 4 years, they had one child, who remained with the mother after the parties separated. The parties were unable to agree contact arrangements, and the father applied to court for a contact order. The mother raised allegations of domestic abuse during her relationship with the father. The court applied Practice Direction 12J, and decided that the mother’s allegations, if true, would make a difference to the type of contact order the court might make since the mother’s allegations were relevant to the determination of the child welfare issues that were before the court.
The court then directed that the case be listed for a fact finding hearing to hear evidence about the mother’s allegations, and determine which of them were true.
The mother’s allegations were of coercive and controlling behaviour, isolation from family and friends, emotional pressure to have a pregnancy termination, sexual coercion, some of which is said to have occurred in the presence of the child, and included intimate details of the parents’ relationship. The father denied all the allegations.
The court gave the mother permission to rely on video recordings she made covertly before the parties separated, as evidence of the father being a risk to the child in the event of contact with the child, but crucially there was no participation directions hearing to determine how best each party and witness could give their evidence to the court.
Part 3A of the Family Procedure Rules 2010 (“FPR”), which came into force on 31.1.22, imposes a duty on the court in cases where there are allegations of domestic abuse, to ensure that a party’s vulnerability is addressed by the use of ‘participation directions’ to enable that party to give their best evidence to the court. Participation directions are often referred to as ‘special measures’.
Unfortunately, in the case of D v R the court failed to hold a ground rules hearing and consider any participation directions, when it ought to have known the mother had distinct frailties which required such a hearing.
Rule 3A.2A “The Court’s duty to consider making participation directions: victims of domestic abuse” states as follows.
(1) Subject to paragraph (2), where it is stated that a party or witness is, or is at risk of being, a victim of domestic abuse carried out by a party, a relative of another party, or a witness in the proceedings, the court must assume that the following matters are diminished –
a) the quality of the party’s or witness’s evidence;
b) in relation to a party, their participation in the proceedings.
(2) The party or witness concerned can request that the assumption set out in paragraph (1) does not apply to them if they do not wish it to.
(3) Where the assumption set out in paragraph (1) applies, the court must consider whether it is necessary to make one or more participation directions.
FPR Rule 3A.7 sets out a list of matters to which the court must give consideration when deciding to make one or more participation directions:
a) the impact of any actual or perceived intimidation, including any behaviour towards the party or witness on the part of (i) any other party or other witness to the proceedings or members of the family or associates of that other party or other witness; or (ii) any members of the family of the party or witness;
b) whether the party or witness (i) suffers from mental disorder or otherwise has a significant impairment of intelligence or social functioning; (ii) has a physical disability or suffers from a physical disorder; or (iii) is undergoing medical treatment;
c) the nature and extent of the information before the court;
d) the issues arising in the proceedings including (but not limited to) any concerns arising in relation to abuse;
e) whether a matter is contentious;
f) the age, maturity and understanding of the party or witness;
g) the social and cultural background and ethnic origins of the party or witness;
h) the domestic circumstances and religious beliefs of the party or witness;
i) any questions which the court is putting or causing to be put to a witness in accordance with section 31(G) of the 1984 Act;
j) any characteristic of the party or witness which is relevant to the participation direction which may be made;
k) whether any measure is available to the court;
l) the costs of any available measure; and
m) any other matter set out in Practice Direction 3AA.
The measures set out in Rule 3A.8 “are those which –
(a) prevent a party or witness from seeing another party or witness;
(b) allow a party or witness to participate in hearings and give evidence by live link;
(c) provide for a party or witness to use a device to help communicate;
(d) provide for a party or witness to participate in proceedings with the assistance of an intermediary;
(e) provide for a party or witness to be questioned in court with the assistance of an intermediary; or
(f) do anything else which is set out in Practice Direction 3AA”.
Practice Direction 3AA entitled “Vulnerable Persons: Participation in Proceedings and Giving Evidence” sets out in paragraph 1.2 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 parties and the quality of the evidence of the parties and other witnesses is not diminished by reason of their vulnerability”.
The provisions of FPR Rule 3A and of Practice Direction 3AA were described by the Court of Appeal in Re S (Vulnerable Party: Fairness of Proceedings)  EWCA Civ 8 as being of “fundamental importance to the administration of family justice” (paragraph 38).
“These rules are well established and understood by judges and practitioners. Usually, where a ground rules hearing is convened, experienced advocates will agree on the correct process for which they will seek judicial approval. Of particular importance to many vulnerable witnesses will be the need for frequent breaks and also the need for straightforward questions, rather than several questions wrapped up in one. The judge will be careful to ensure that recommendations made in respect of a vulnerable witness are followed. Intermediaries will sit with the vulnerable witness and will interrupt if a question is considered to be too complicated, and will ask for breaks if deemed necessary. Judges will be careful to ensure that the ground rules established are adhered to. Advocates and judges, for whom digesting large amounts of documents quickly, and sitting for two or more hours without a break are commonplace, must be alive to the fact that most witnesses have never previously experienced the court process and that vulnerable witnesses may become overwhelmed by it.” (Paragraph 40)
The fact finding hearing in D v R took place online by video link over 4 days. During the hearing the parties, their legal representatives and the judge all had their video cameras switched on, so all the participants could see each other.
It was accepted by the parties that at no stage did any of the lawyers refer the court to the provision of the Part 3A of the FPR 2010 relating to vulnerable witnesses, and that the judge did not consider those provisions of the court’s own motion.
At the end of the hearing, the judgment of the court considered the reliability of the oral evidence of each witness, as well as the documentary evidence before the court. However, even during the judgment the court took no account of Part 3A of the FPR 2010 and the vulnerability of the mother as a result of the alleged domestic abuse. The court found the mother’s allegations not proven, and made an order for fortnightly contact at a contact centre. The mother appealed the outcome of this hearing.
In support of her appeal the mother filed evidence from her GP that she had worsening anxiety symptoms after giving evidence to the court, and that she found giving evidence distressing and very upsetting, which impacted the way she gave evidence. The implication being she was disadvantaged giving evidence as a victim of alleged domestic abuse, and ultimately not believed.
Two of the mother’s grounds of appeal concerned the court’s failure to hold a ground rules hearing and consider any participation directions for vulnerable witnesses under FPR Part 3A. The appeal came before Mrs Justice Theis DBE in February 2023.
FPR Rule 30.12(3) provides that appeals may only be allowed where the decision of the court below was wrong or there was a procedural irregularity, resulting in the decision being unjust. Court decisions may be wrong or procedurally unjust in the following circumstances:
i) Where there has been an error of law;
ii) Where the judge has failed to give due weight or given undue weight to significant evidence;
iii) Where the conclusion of the court has been reached on facts which were not justified on the evidence before the court;
iv) Where the court below used procedure which was irregular and unfair rendering its decision unjust; or
v) Where the court’s discretion has been used in a way that is unreasonable.
At the appeal hearing in D v R, Mrs Justice Theis referred to the case of A v A Local Authority and others  EWCA Civ 8, where Baker LJ said:
“41. We have focused on the issue of vulnerability in cases like the present involving parties or witnesses with limited understanding. There are other equally important provisions in Part 3A applying to victims or alleged victims of abuse and intimidation. All such provisions are a key component of the case management process which ensures compliance with the overriding objective of enabling the court to deal with cases justly. As King LJ observed in Re N (A Child)  EWCA Civ 1997 at :”
“Part 3A and its accompanying Practice Direction provide a specific structure designed to give effective access to the court, and to ensure a fair trial for those people who fall into the category of vulnerable witness. A wholesale failure to apply the Part 3 procedure to a vulnerable witness must, in my mind, make it highly likely that the resulting trial will be judged to have been unfair.”
“42. It does not follow, however, that a failure to comply with these provisions, whether through oversight or inadvertence, will invariably lead to a successful appeal. The question on appeal in each case will be, first, whether there has been a serious procedural or other irregularity and, secondly, if so, whether as a result the decision was unjust. We are alive to the fact that many witnesses will give their evidence in a way which falls short of the standard that they would have wished for, or their advocates had hoped. Sometimes, this may be because of the very nature of human frailty, at other times it may be because a witness was deliberately deflecting or obfuscating or, worse still, lying.”
Mrs Justice Theis also referred to other recent appeals that have highlighted the importance of the need to comply with FPR Part 3A and PD3AA: K v L and M  EWHC 3225 (Fam), GK v PR  EWFC 106, and CM v IP  EWHC 2755 (Fam), which had all allowed appeals based on procedural irregularity where the court had failed to with its duty to consider the vulnerability of a party or witness, and hold a ground rules hearing to consider what, if any, participation directions should be made.
Mrs Justice Theis expressed the court’s regret that neither of the parents legal representatives in the court below had drawn the court’s attention to FPR Part 3A and PD3AA. She went on to say that:
(1) A party or witness who is, or is at risk of being, a victim of domestic abuse (as defined in s1 DAA) is to be assumed to be a vulnerable witness or party.
(2) Where that applies the court must consider whether it is necessary to make one or more participation directions.
Mrs Justice Theis allowed the mother’s appeal, set aside the (non) findings of the court below, and remitted the matter to be heard by a different judge to consider the extent to which it was necessary and, if so, to what extent there needs to be a re-hearing and what, if any, adjustments need to be made to the orders relating to supervised contact, on the following grounds:
(1) No ground rules hearing took place before the fact-finding hearing. The issue was not even considered. The relevant rules are clear, they place a mandatory obligation on the court to consider vulnerability.
(2) As this issue was not considered by the court it left a lacuna in the procedural safeguards that are in place for a vulnerable witness.
(3) The court did not separately address or consider the participation directions that could have been made to enable a vulnerable party to give evidence, irrespective of whether they were required or not. The court simply did not get to that stage. No thought was given to whether the father’s camera should have been switched off, whether there could have been a different way to ask questions or manage how they were asked, and when and how breaks were taken.
(4) This was not a straightforward case and the allegations involved intimate details of the parties relationship.
(5) As to the issue of the video evidence and how it was managed during the mother’s oral evidence, no consideration was given as to how that could best be done, what the options were and what the impact would be on the mother. The detailed guidance given by Mrs Justice Knowles in Re M: Private Law Children Proceedings: Case Management: Intimate Images  EWHC 986 (Fam) at paragraphs  –  was not referred to.
(6) The combination of the wholesale failure to consider FPR Part 3A in this case together with the lack of any reference or proper consideration of the mother’s vulnerability in the judgment and the impact of that omission, has the consequence that the hearing was unfair and the conclusions reached cannot remain in place.
Mrs Justice Theis made it clear that the outcome of that appeal had no bearing on what the eventual outcome of that father’s application or any further fact finding would be. It may, or may not, reach the same conclusion, but the importance will be that the process is fair and in accordance with the procedural safeguards in place.
D v R emphasises the need for practitioners dealing with private law family cases where domestic abuse is raised as a relevant issue, to ensure that the court addresses FPR Part 3A and how vulnerable witnesses can participate in fact finding hearings, and depending on the allegations in the case, at final hearings too, well in advance of such hearings. This is clearly not something that can be left to the first day of such hearings.