Supporting rules: the interim report of the Children and Vulnerable Witnesses Working Group

Supporting rules: the interim report of the Children and Vulnerable Witnesses Working Group

The interim report of the Children and Vulnerable Witnesses Working Group (CVWWG) has been published setting out its initial recommendations and its intention that proposed rule changes should be in place by January 2015.

What is the CVWWG?

The CVWWG, chaired by Hayden J and Russell J, was set up by the President of the Family Division following the major family law reforms in April 2014. The CVWWG was tasked with the following aims set out in the 12th  View from the President’s Chambers:

  • to review the Family Justice Council’s April 2010 guidelines for judges meeting children who are subject to family proceedings
  • to review the Family Justice Council’s December 2011 guidelines on children giving evidence in family proceedings
  • to address the wider issue of vulnerable people giving evidence in family proceedings including the inadequacy of the procedures in the Family Court for taking evidence from alleged victims

Initial recommendations and proposals

The CVWG has made recommendations as to the progress of reform, aimed at equipping judges to identify and handle vulnerable parties and witnesses, and advocates to handle and question such parties and witnesses, including:

  • that the reforms should apply to all Family Court cases from the outset
  • there should be a new mandatory rule in respect of children and vulnerable witnesses and parties supplemented by practice directions and guidance approved by the President
  • the term vulnerable witness should remain in use as it is not desirable for the Family Court procedure to become distanced or uncoupled from the practice and procedure as it has developed in the criminal justice system - the term needs to be extended to cover the parties as well as witnesses
  • the rule/s should be inserted in the Family Procedure Rules 2010  (FPR 2010) at the earliest point of the rules to emphasise the importance of the role of the child and the need to identify the necessary support /special measures for vulnerable witnesses and/or parties from the start of any proceedings, or at the earliest opportunity
  • there should be a new Part 4 to the FPR 2010
  • the rule should require that court/judge will recognise the role of the children and/or needs of children at the outset of proceedings either as participants in proceedings who should be given the opportunity of communicating with the judge; and/or as witnesses and consider the how best to provide for their participation and support
  • the rule should require that the court/judge will identify whether a party or witness is vulnerable at the outset of the proceedings or their involvement in proceeding (whichever is the sooner) and make provision for such support, special measures or other assistance they may need to properly and fully participate in the proceedings and to give best evidence
  • the rule should require that the all the advocates and representatives of the parties must  identify and consider how best the role of the child is to be recognised and/or provide for such assistance and support they need to give best evidence
  • the rule should require that all advocates and representatives of the parties must identify if a party or witness is vulnerable and consider how best he or she can be supported and assisted to give best evidence
  • there should be a requirement in the same terms for litigants in person
  • there should be a practice direction based on the Family Justice Council guidance for judges seeing children, that reflects the Court of Appeal’s decision Re KP [2014] EWCA Civ 554, gives consideration to the provisions of the Charter and the experience of the judiciary
  • in addition there should be consideration of the status and nature the contents of the communication between judge and child
  • the procedure, practice and guidance for provision of special measures, support and/or assistance for vulnerable parties or witnesses; including children to give their best evidence should from part of the existing practice directions where possible; such as by amendment of the Public Law Outline  (FPR 2010, PD 12A) or Child Arrangements Programme (FPR 2010, PD 12B)
  • the rule and practice direction should be drafted with reference to the existing special measures directions in the case of vulnerable and intimidated witnesses, and the procedure and practice that have developed in the criminal courts
  • particular consideration should be given to the provisions for parties and witnesses in cases of forced marriage and female genital mutilation
  • the rule change should be implemented by way of training for the judiciary and advocates
  • advocates should be expected to attend for additional training (as criminal advocates did)

When will the reforms come into effect?

It is intended that the rule changes will be in place by January 2015. The CVWG is due to meet in early October when the draft rules can be discussed.

The consultation process

In his 12th View the President said

‘The Working Party will need to build on the experiences of judges in the Family Division and the Family Court who have had to deal with these issues, particularly in the more recent past. But it is also vital that the Working Party taps into and incorporates in its thinking both the highly relevant and thought-provoking views of the Family Justice Young People’s Board and the inter-disciplinary expertise of the Family Justice Council.’

Hayden J is to liaise with Family Division judges and consult with them on both aspects of work being undertaken, children and communication with the judges hearing their cases and making the decisions about them; and vulnerable parties and witnesses.

Preliminary consultation as set out above will take place through the Family Justice Council on the drafts after that meeting with wider consultation taking place afterwards when more refinement of the drafts has taken place. Russell J will liaise with Family Justice Council.

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About the author:

Claire is a member of the LexisPSL Family team and has almost twenty years of experience as a family solicitor. She specialises in all aspects of private family work, including resolving issues relating to property, money, and children arising on relationship breakdown between married and unmarried couples.

Claire worked as a family solicitor at Hart Brown solicitors in Surrey. She was an accredited specialist with Resolution with particular expertise in the areas of advanced financial provision and pensions. She was also on the Law Society Family Law Panel.