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Family analysis: The Family Procedure Rules Committee (FPRC) has made recommendations arising from the final report of the Vulnerable Witnesses & Children Working Group (VWCWG). A consultation has been opened on proposed changes to the Family Procedure Rules 2010 (FPR 2010) regarding vulnerable witnesses and children, in particular a new Pt 3A.
Family Procedure Rule Committee consultation, August 2015
The VWCWG published its final report on 17 March 2015. The report included a set of draft model rules. The VWCWG asked the FPRC to consider whether, and if so how, their recommendations and draft rules could be implemented. The FPRC has considered the draft rules and made some amendments. The FPRC now seek comments on the revised set of draft rules and a consultation has been set up.
What was the VWCWG tasked to do?
In June 2014 the VWCWG was established by Sir James Munby, President of the Family Division, to:
The VWCWG published an interim report with initial recommendations in August 2014. The interim report was subject to extensive consultation across the family justice system. The consultation responses informed the final report of the VWCWG which was published on 17 March 2015.
What are the VWCWG's recommendations?
The VWCWG final report recommended:
What has the FPRC been asked to do?
The VWCWG has asked the FPRC to consider whether, and if so how, the recommendations and draft rules in the VWCWG final report can be implemented.
What are the key recommendations of the FPRC that family practitioners should take note of?
The FPRC supports the implementation of the VWCWG proposals by means of a new rule designed to emphasise the importance of the participation of children and vulnerable persons at all stages of family proceedings, in particular during early case management.
In practice, what is proposed is a new part to the FPR 2010, ie: Pt 3A: Children and Vulnerable Persons: Participation in proceedings and giving evidence. The draft new FPR 2010, Pt 3A covers issues regarding children and vulnerable parties.
Before any amendments to FPR 2010, SI 2010/2955 can be finalised, a consultation must take place in accordance with the provisions of the Courts Act 2003, s 79(1)(a).
Will there be any other amendments to FPR 2010?
Practical details of the courts' consideration of the draft FPR 2010, Pt 3A will be addressed in a new Practice Direction that will be formulated by the President of the Family Division. This is not the subject of consultation.
The FPRC are considering amendments to other provisions in FPR 2010, SI 2010/2955 consequential on the creation of FPR 2010, Pt 3A.
What are the consultation questions that practitioners should focus on?
The VWCWG is seeking views on the draft new FPR 2010, Pt 3A and on specific questions in relation to the following topics:
United Nations Convention on the Rights of the Child (UNCRC)
There is a need to reflect UNCRC, art 12 and the right of a child to express a view if they wish and are old enough (see also ZH (Tanzania) v SSHD  UKSC 4,  1 FCR 221). There is provision in children proceedings for the court to consider the attendance of the child under FPR 2010, SI 2010/2955, 12.14.
UNCRC, art 12 provides that:
The consultation questions for practitioners to consider in relation to UNCRC, art 12 are:
The overriding objective, in accordance with FPR 2010, SI 2010/2955, 1.1, is to enable the court to deal with cases justly having regard to any welfare issues involved. Dealing with a case justly includes, so far as practicable:
FPR 2010, SI 2010/2955, 1.1 does not refer to children. Some FPRC members raised concerns that this is an omission and would like to see the overriding objective updated to reflect the need to consider children within proceedings.
The consultation questions for practitioners to consider in relation to FPR 2010, SI 2010/2955,1.1 and the overriding objective are:
Draft FPR 2010, Pt 3A sets out that the court has discretion to make directions where a vulnerable witness or party's participation in proceedings is 'likely to be diminished'. The VWCWG considered how best to establish when this rule applies and also considered further criteria but, on balance, felt that a more high level description was required to make sure that the court has control and can make decisions on eligibility without being restricted by any specific criteria.
The consultation questions for practitioners to consider in relation to eligibility are:
In addition to eligibility, the VWCWG says that the special measures in draft FPR 2010, 3A.7(1) must be used appropriately in order to make sure the court complies with the overriding objective (FPR 2010, SI 2010/2955, 1.1) and makes best use of available resources. For example, the current provision of intermediaries at court in family proceedings is at the discretion of the judiciary and requires agreement from Her Majesty's Courts and Tribunals Service (HMCTS) before funding is provided. Consequently, new rules need to reflect this arrangement and support the most appropriate use of such a provision.
Draft FPR 2010, 3A.5 states that the court must consider whether the quality of evidence given by a party or witness is likely to be diminished and, if so, whether it is necessary to make one or more directions in order to assist the party or witness give evidence. Draft FPR 2010, 3A.6 sets out a list of factors that the court must have regard to. Draft FPR 2010, 3A.6(j), 3A.7(4) and 3A.11(2) deal with the availability of measures. Draft FPR 2010, 3A.4 makes similar provision about a party's participation in proceedings.
The VWCWG welcome views on whether additional safeguards are required to make sure that the measures are used appropriately and in accordance with available resources.
The consultation questions for practitioners to consider in relation to special measures are:
Factors the court is to have regard to
The VWCWG has noted that reference to a party's or witness's employment is not contained in the list of factors the court is to have regard to in draft FPR 2010, 3A.6.
The consultation questions for practitioners to consider in relation to factors the court is to have regard to are:
What action should lawyers take in light of the consultation and the proposed draft FPR 2010, Pt 3A?
The consultation runs from 3 August 2015 until 5 pm on 25 September 2015. Practitioners are invited to respond to the above questions and provide any comments that they may have on draft FPR 2010, Pt 3A.
Comments should be sent to:
Kirstie Gibson, solicitor in the Lexis®PSL Family team.
This News Analysis was first published in Lexis®PSL Family.
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