1. On 23rd February 2017 consultation on a new PD3AA was issued. The new PD3AA is entitled: “Vulnerable Persons: Participation in Proceedings and Giving Evidence”.
2. There has also been widespread reporting in the media about the cross-examination of those alleging abuse, whether sexual, physical, financial or a combination by their alleged abusers. The two are linked but for the moment, I’d like to look at the duties of the lawyers and the courts, including the judiciary in every case to consider the participation of all those who are or may be vulnerable or whose participation in the process may be affected such that they do not fully understand what has happened.
3. I think that when one stops to think about it, the reason why all of us should think about making the process more understandable is outstanding obvious. Most cases in the Family Court are likely to have an outcome which affects the lives of those involved in significant ways. That is true whether the case is about money, property, children, care or adoption. It is vital that every client understand what has happened and why. When a witness or a party to proceedings gives evidence, their evidence will be likely to be hugely important as will the impression they give when giving evidence.
4. This is about Article 6 and Article 8 ECHR. The two are, again, intertwined. In a case from the Court of Protection in the supreme court, Lady Hale spoke about the duty to ensure that those with disabilities of all kinds are able to access services:
‘[Disability] places upon the state (and upon others) the duty to make reasonable accommodation to cater for the special needs of those with disabilities’, Lady Hale in P V Cheshire West and Others  UKSC 19, paragraph 45.
Bringing it home to the court process we can see that in Re C (A Child)  EWCA Civ 128, in the context of care proceedings involving a mother with speech and hearing impediments and a father who was profoundly deaf, McFarlane LJ stressed that: ‘The court as an organ of the state, the local authority and CAFCASS must all function now within the terms of the Equality Act 2010. It is simply not an option to fail to afford the right level of regard to an individual who has these unfortunate disabilities.’ (paragraph 35).
5. So, what of the new Practice Direction?
6. The draft PD3A already places a duty on the court to consider whether a party’s participation in the proceedings “is likely to be diminished by reason of vulnerability, and of so, whether it is necessary to make one or more participation directions…”
7. The new Practice Direction requires the court to have regard to the following factors:
a) Domestic abuse, including financial abuse
b) Sexual abuse
c) Physical and emotional abuse
d) Racial and/ or cultural abuse
e) Forced marriage or so called “honour based violence”
f) Female genital or other physical mutilation
g) Abuse or discrimination based on gender or sexual orientation.
8. Participation directions: a court must have a ground rules hearing when it has decided that a vulnerable party, witness or protected party should give evidence at which participation directions will be given as to the conduct of the advocates and to put in place support for that person. If, in order to have an effective ground rules hearing, there has already been a report from a psychologist or an intermediary, thought should be given to the way in which evidence will be given and the support for the witness – not just the presence of an intermediary but signs, pictures, breaks, a “map” of who’s who in the court, interpretation of words we think we are familiar with but will be very unfamiliar to those who struggle with long words and unfamiliar phrases.
9. The Practice Directions also gives examples of the sorts of measures which might be taken:
• The form of the evidence
• Whether the evidence should be taken before the trial and transcribed (there will have to be provision for the cost of the transcription)
• Directions about cross-examination
• If there has already been a recording of the parson’s evidence in criminal proceedings, whether that recording should be used.
10. Paragraph 4.7 requires “All advocates, (including those who are litigants in person) are expected to be familiar with and to use the techniques employed by the toolkits and approach of the Advocacy Training Council. The toolkits are available at www.theadvocatesgateway.org/toolkits.
11. I highlighted the reference to the Advocates Gateway because there is a wealth of useful guidance on that website. On the whole the Toolkits are aimed at the criminal courts but Toolkit 13 looks at the Family Court and contains guidance for family advocates. It also reminds us that the steps we should take when clients or witnesses are vulnerable within the courts system is actually incorporated within the definition of the core duties of the Bar.
The Bar Standards Board Handbook 2014 provides that the barrister should ensure that the interests of vulnerable clients and their needs are taken into account (oC14) and barristers should do what they reasonably can to ensure that the client understands the process and what to expect from it and from their barrister. It also states that barristers should also try to avoid any unnecessary distress to the client (gC41). I think that is appropriate client care by doing one’s best to explain in plain English what is happening any what has been said.
Toolkit 13 goes on to point out that:
“the core duties with which barristers are required to comply, include the duty:
to observe your duty to the court in the administration of justice (CD1);
to act in the best interests of each client (CD2);
to act with honesty and integrity (CD3);
not to behave in a way which is likely to diminish the trust and confidence which the public places in you or in the profession (CD5);
not to discriminate unlawfully against any person (CD8).
2.3 Solicitors are subject to similar duties, to uphold the rules of law and proper administration of justice, and to provide a proper standard of service to clients including vulnerable clients (principles 1 and 5 Solicitors Regulation Authority Code of Conduct 2011).
2.4 These duties mean that all advocates have a responsibility to assist the court to identify and appropriately respond to the vulnerability of parties and other witnesses. In addition, it is suggested that advocates should, as part of their duty to assist the court in the administration of justice, assist the court as a public authority in its duty to act compatibly with the European Convention on Human Rights, especially articles 6 and 8”.
12. Whatever happens at the end of the consultation, I think it is vitally important that we all do our best to put the practice guidance on the Advocates Gateway into practice.