A recent amendment to the Family Procedure Rules has introduced new measures to help vulnerable or protected parties/witnesses to participate and give evidence in family proceedings.
New duties have been placed on the Court, the parties in the case and their legal representatives, to ensure that the voice of those who need help is properly heard.
But first, what is meant by vulnerable or protected people? A protected party is one who lacks capacity – this would require another whole blog to really explain, but to be as brief as I can, a person must be able to do all four of understanding information given to them, retaining and weighing up the information and then communicating their decision. Vulnerability covers a wide range of factors, as the Court now must consider:
The impact of actual or perceived intimidation towards the party or witness by their own family, or by another party or witness to the proceedings, or by members of the family or associates of that other party or witness.
Whether the party or witness suffers from a mental disorder or otherwise has a “significant” impairment of intelligence or social functioning, has a physical disability or disorder or is undergoing medical treatment.
The nature and extent of the information before the court.
The issues in the proceedings, including any concerns about abuse, which includes:
domestic abuse(“any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners or family members regardless of gender or sexuality. This can encompass, but is not limited to, psychological, physical, sexual, financial, or emotional abuse. Domestic abuse also includes culturally specific forms of abuse including, but not limited to, forced marriage, honour-based violence, dowry-related abuse and transnational marriage abandonment”);
sexual, physical and emotional abuse;
racial or cultural abuse or discrimination;
forced marriage or honour-based violence;
female genital or other physical mutilation;
abuse or discrimination based on gender or sexual orientation; and
Whether the matter is contentious.
The party or witness’s age, maturity, understanding, domestic circumstances, religious beliefs and ethnic, social and cultural background.
Questions the court is putting or causing to be put to the party or witness
Any characteristic of the party or witness that is relevant to any participation direction that may be made.
Everyone involved in the proceedings are expected to identify any vulnerable parties or witnesses at the earliest possible stage, and the parties and representatives to work with the Court and each other to ensure they can participate without diminishing the quality of their evidence, or putting them in fear or distress.
The last bullet point refers to a “participation direction” – this is how the Court can specifically address the person’s difficulties, as the Court must consider as soon as possible whether:
A party’s participation in proceedings (other than by way of giving evidence) is likely to be diminished by vulnerability and if so, whether to make participation directions.
The quality of evidence given by a party or witness is likely to be diminished by vulnerability and if so, whether to make participation directions.
It is necessary to make participation directions to assist a party who lacks capacity participating in proceedings or giving evidence.
Often a cognitive or psychometric report will have to be prepared and will make recommendations for the participation directions themselves. Examples of these directions include preventing the vulnerable party/witness from seeing another person, allowing them to give evidence by a live link from another location, or having them use a device or intermediary (who would not be provided for under public funding, but may be paid for by HMCTS) to help them communicate. There are many other ways the Court can adapt, such as setting out arrangements for arriving and leaving the court building if domestic abuse may be involved, or having frequent breaks during the hearing.
If you would like any further advice in relation to this or any area of family law, you can speak to a specialist family lawyer in Blackburn, Burnley, Preston and across Lancashire and the North West by calling 0845 287 0939 or contacting us through our online enquiry form.