“…how the courts treat those who are exposed and weak is a barometer of our moral worth as a society. Many of those we encounter in the criminal and family courts are from troubled backgrounds and have suffered a lifetime of disadvantage, prejudice and abuse” – Mr. Justice Green
Few people feel self-assured when asked to give evidence in Court. Given a courtroom is a novel environment, it is natural to feel slightly stressed and nervous before appearing before a judge or magistrate.
The Family Court environment is designed to be as harmonious and agreeable as possible. Hearings are held in private and often in a meeting room as opposed to a court. However, for vulnerable witnesses, the Family Court process can be frightening and lonely. It may feel as if control of their life and family relationships are being eroded, and they cannot protect themselves from other’s decisions.
Over twenty years ago, the issue of vulnerable witnesses in the Criminal Courts was examined, leading to the Youth and Criminal Justice Act being passed, which is still in force today. In 2014/15, the then President of the Family Division, the Right Honourable Sir James Munby, undertook a review of protecting vulnerable witnesses in the Family Courts. The Children and Vulnerable Witnesses Working Group was created, which resulted in the Family Procedure Rules being amended to make specific provision for vulnerable parties and witnesses.
Recognizing the distress faced by vulnerable witnesses, in September 2019 the Civil Justice Council (CJC) launched a consultation on vulnerable witnesses and parties in civil proceedings with the publication of Vulnerable witnesses and parties within civil proceedings: Current position and recommendations for change (the Consultation Paper).
With this consultation and the procedural changes anticipated to follow from it, vulnerable witnesses in civil litigation will finally receive recognition and protection, which will improve their access to justice.
Defining ‘vulnerable witness’
A witness or party may be vulnerable due to mental or physical disability/disorder, impairment of intellectual or social functioning, fear or distress.
In 2010, extensive research was carried out regarding the source of the difficulties vulnerable court users faced. They include:
- Trouble understanding questions asked in Court
- The use of complex and legal language
These issues were found to adversely affect a person’s demeanour in Court and in the case of Family Court users, result in those with learning disabilities or mental/physical health problems feel excluded from the process.
The protective measures used in the Family Courts for vulnerable witnesses
The Family Courts will often hear cases involving domestic violence, sexual abuse, and addiction. These matters are not restricted to public law cases such as care proceedings, they are prevalent in private family disputes involving divorce, financial settlements, and child arrangements.
Despite new rules provided by the 2017 amendments to the Family Procedure Rules, a witness could still be cross-examined by the Defendant, who may have subjected them to abuse.
Subsequently in October 2017 Practice Direction 12J of the Family Court Rules (which covers fact-finding hearings in private law contact disputes), was revised and now states that the fact-finding hearing or other hearing can be an inquisitorial (or investigative) process, which at all times must protect the interests of all involved and that: “The Judge should be prepared where necessary and appropriate to conduct the questioning of the witnesses on behalf of the parties, focusing on the key issues in the case.”
The draft Domestic Abuse Bill
Former British Prime Minister, Theresa May will always be remembered as the leader who tried and failed to deliver Brexit. However, she was committed to reforming domestic abuse laws and in January 2019 her government release a paper; “Transforming the Response to Domestic Abuse Consultation Response and Draft Bill”.
The paper detailed proposals to significantly enhance the assistance and protection afforded to victims in domestic abuse cases in the criminal and family courts, stating that:
“We recognise that family court proceedings can be incredibly difficult for victims, and over the past year we have taken several steps to improve the family court process for vulnerable people in the family justice system”
The draft Domestic Abuse Bill sets out several procedural changes designed to protect victims of domestic violence appearing in court, including:
- Removing the need for the victim to prove fear or distress in regard to the eligibility for special measures.
- Prohibiting cross-examination of a victim by their abuser. A person convicted, given a caution or charged with a specified offence or against whom an “on notice” protective injunction has been made will not be allowed to cross-examine a victim or alleged victim in any family proceedings. Furthermore, the Court will have the discretion to prevent cross-examination by a party if either a quality (of evidence) condition or significant distress condition were met.
A Joint Select Committee has been appointed to scrutinise the Bill. Its first report, released in June 2019, expressed concern that at the potential for inconsistency in application of the proposed measures (set out in b) because too many victims of domestic abuse would only receive protection at the discretion of the Court. The Joint Select Committee instead recommend that the mandatory ban is extended so that it applies where there are other forms of evidence of domestic abuse, as in the legal aid regime threshold.
The Domestic Violence Abuse Bill with significantly add on to the protections already available to vulnerable witnesses in the Family Court. It makes further recommendations regarding advancing domestic abuse protection, including the appointment of a dedicated Domestic Abuse Commissioner and placing a mandatory duty on councils to offer a secure, safe place for fleeing victims and their children.
British Prime Minister, Boris Johnson, has stated he is fully committed to reintroducing the Bill in the Queen’s Speech, occurring in mid-October.
With latest reports showing domestic killings at a five-year high, the passing of the Domestic Abuse Bill cannot come soon enough and must not be delayed by Brexit squabbles.
National Centre for Domestic Violence (NCDV) – 0800 970 20 70
Refuge – 0808 2000 247 (24 hours)
Women’s Aid 0808 200 0247 (24 hours)
ManKind – 01823 334 244
Galop LGBT Domestic Abuse Helpline – 0800 999 5428
If you require advice on any of the issues mentioned in this article, please call us on 020 3372 5125 to make an appointment.
1 Rosie McLeod, Cassie Philpin, Anna Sweeting, Lucy Joyce and Roger Evans, Court Experience of adults with mental health conditions, learning disabilities and limited mental capacity, Ministry of Justice Research Series (London: Ministry of Justice, July 2010)
1Rule 3A and Practice Direction 3AA