Family law no island (4): A metwand for family proceedings — common law and vulnerable witnesses
Continuing his series discussing the impact on family law and practice of legal developments in other areas, David Burrows questions Sir James Munby’s recent announcement that primary legislation is required to remedy the situation in which the victim of alleged abuse can face cross-examination by their alleged abuser in the family courts in a manner not permitted in the criminal courts. He suggests there is already a solution available under existing case law and statute.
Evidence of vulnerable witnesses in family proceedings: progress so far…
On 30 December 2016 – a good day to bury bad news, perhaps? – the Ministry of Justice published a statement by Sir James Munby, President of the Family Division in which he emphasised his concern as to “the pressing need to reform the way in which vulnerable people give evidence in family proceedings”; and that his view is that “the family justice system lags woefully behind the criminal justice system”.
How far behind the criminal justice system are family proceedings? To what extent can family law adapt, by “special measures” by analogy (as explained below) or otherwise, procedures developed for criminal proceedings? Is the victim of alleged abuse given a fair trial if she is dealt with in a criminal court, where an alleged assailant may not cross-examine her (Youth Justice and Criminal Evidence Act 1999 (“YJCEA 1999”) s 38), whilst the same victim can face cross-examination by the same alleged abuser in a “family” court; and she, her evidence and a just outcome may suffer as a result?
In his short statement Sir James says the judiciary cannot act. He says “it requires primary legislation and would involve public expenditure. It is therefore a matter for ministers”. If Lady Hale in the Supreme Court and the common law and the human rights implications of legal aid legislation are followed, it must be questionable whether this is entirely that case. Public funding cannot be undertaken on a piecemeal judicial basis (Re K & H (Children)  EWCA Civ 543 sub nom In re K (Children) (Lord Chancellor intervening)  1 WLR 3801 – only Parliament can authorise public expenditure.
Legal Aid Sentencing and Punishment of Offenders Act 2012 has drastically cut back the rights to funding of parties to civil proceedings (including family proceedings); but within the terms of LASPOA 2012 s 10(3) there is narrow scope for grant of civil legal services exceptional case funding where otherwise a person might be denied rights under European Convention 1950. With such exceptional case funding in place judicial case management of the types of special measures referred to here may enable the common law to provide help for victims of domestic abuse and other vulnerable witnesses in a way not envisaged by Sir James and Ministry of Justice.
Vulnerable witnesses: family proceedings and an impetus for reform
This article looks at the recent history of proposed reforms of vulnerable witnesses and children (as considered by Sir James’s Vulnerable Witnesses and Children Working Group) and then at what could be done by courts under the current law without any immediate need for primary legislation. In passing, if primary legislation had been needed, it is worth noting that family law primary legislation was enacted in 2013 (extensive amendments were made to introduce the family court in April 2014) and in the Children and Families Act 2014, without a whisper in either set of legislation on the subject of “children’s evidence” or “vulnerable witnesses”.
The Acts of 2013 and 2014 were both excellent opportunities to reform this area of law in line with YJCEA 1999 Part 2. The ground work, after all, was already in place with the 1999 Act; and it has developed its own jurisprudence which is relevant to family proceedings (see eg Lady Hale in R (D) (a minor)) v Camberwell Green Youth Court  UKHL 4,  1 WLR 393 and R v Lubemba  EWCA (Crim) 2064; as explained in Evidence in family proceedings by David Burrows (2016, Family Law/LexisNexis) Chs 8 and 19). At the end of 2012 (over four years ago) Lady Hale was once more referring to the subject in Re A (Sexual Abuse: Disclosure)  UKSC 60 sub nom In re A (A Child) (Family Proceedings: Disclosure of Information)  2 AC 66 when she said of the evidence to be given:
 It does not follow, however, that X [a vulnerable young adult] will have to give evidence in person in these proceedings…. Family proceedings have long been more flexible than other proceedings in this respect. The court has power to receive and act upon hearsay evidence. It is commonplace for children to give their accounts in videotaped conversations with specially trained police officers or social workers…. Oral questioning could be arranged in ways which did not involve face to face confrontation. It is not a requirement that the father be able to see her face. It is, to say the least, unlikely that the court would ever allow direct questioning by the father, should he still (other than in this court) be acting in person. The court’s only concern in family proceedings is to get at the truth. The object of the procedure is to enable witnesses to give their evidence in the way which best enables the court to assess its reliability. It is certainly not to compound any abuse which may have been suffered…”
Perhaps this statement by Lady Hale can represent a metwand for judging the extent to which the common law can adapt procedural rules to help witnesses. It represents an authoritative view as to what is the present state of the law in family proceedings. There may be unresolved resources questions, as the President says; but what is already available in law can surely be adapted to help children, victims of alleged abuse and other vulnerable witnesses with imaginative use of exceptional case legal aid funding (LASPOA 2012 s 10(3))?
Recent history: vulnerable witnesses and children in criminal proceedings
Criminal law recognised the problems for vulnerable witnesses by the 1990s. In R (D) v Camberwell Green Youth Court  1 WLR 393 (above) Lady Hale explained the background to YJCEA 1999:
 … The new scheme [under YJCEA 1999 Part 2] built upon and expanded earlier tentative steps taken both by the common law and statute to enable children to give evidence in criminal trials: removing the accused from the sight though not the hearing of a witness (R v Smellie (1919) 14 Cr App R 128); setting up screens to prevent the witness seeing or being seen from the dock (R v X, Y and Z (1990) 91 Cr App R 36); allowing a child to give evidence by live television link (Criminal Justice Act 1988, s 32); and admitting a video recorded interview as the child’s evidence in chief (Criminal Justice Act 1988, section 32A, inserted by the Criminal Justice Act 1991, s 54).”
YJCEA 1999 Part 2 aims to deal with the “quality of a witness’s evidence” (see s 16(5)):
(5) In this Chapter references to the quality of a witness’s evidence are to its quality in terms of completeness, coherence and accuracy; and for this purpose “coherence” refers to a witness’s ability in giving evidence to give answers which address the questions put to the witness and can be understood both individually and collectively.”
Sections 16 and 17 create three categories of witness who may be eligible for assistance by a special measures direction. A witness under 17 is automatically entitled to assistance (s 16(1)(a)). Secondly, s 16(1)(b) deals with incapacitated witnesses (as defined in s 16(2)); and thirdly, s 17(1) with witnesses effected by “fear or distress”. In the last two cases the court must be satisfied that any evidence “is likely to be diminished” by the circumstances of evidence being given. In what follows “witness” by analogy will include a party in family proceedings.
If a witness comes within one of the categories in YJCEA 1999 ss 16 or 17 s/he may be eligible for special measures assistance (YJCEA 1999 ss 23–30), including: preventing a witness from seeing a party (YJCEA 1999 s 23); evidence by live link (s 24); hearing a witness’s evidence in private (s 25); video recorded evidence or cross-examination (ss 27 and 28); and questioning a witness through an intermediary (s 29) or device (s 30).
The needs of abused witnesses in family proceedings – not thus far formally met in family law procedures – was given impetus when Roderic Wood J persuaded the Attorney-General to fund an advocate to cross-examine (for a father acing in person and the court) in H v L and R  EWHC 3099 (Fam);  2 FLR 162 (and see Evidence in Family Proceedings (op cit) paras 8.39 to 8.56). The judge drew particular attention to YJCEA 1999 Part 2, and to the fact that it did not apply in family proceedings. The funding arrangement for an advocate is unlikely to be repeated by Attorney-General in the light of comments from the Court of Appeal in Re K & H (Children) (above). Lord Dyson MR felt that Roderic Wood J had been unduly squeamish in standing back from cross-examining for the father. However, he does not offer any clear options for judges, beyond statutory intervention in accordance with YJCEA 1999 s 38 (cross-examination of a witness by ‘accused’ in person).
Vulnerable Witnesses and Children Working Group
Sir James Munby set up the Working Group in mid-June 2014. It reported within six weeks (31st July 2014) and recommended a single ‘new mandatory rule in respect of Children and Vulnerable Witnesses and Parties supplemented by practice directions (PD) and guidance approved by the President’. No draft rule was provided. The group failed to identify – and this failure persists – that, in reality, this serious problem was dealing with three quite separate – if sometimes overlapping – issues:
- the evidence of children (as distinct from their views) in their own proceedings (as in In re W (Children) (Family Proceedings: Evidence)  UKSC 12;  1 WLR 701;
- cases where the judge may be asked to hear the views of a child; and
- the evidence of vulnerable adult witnesses (as in Re A  2 AC 66 and H v L and R  2 FLR 162 (both above)).
By Spring 2015 a further draft report of the Working Group was produced; and six months later draft rules (now 11 rules as a proposed Family Procedure Rules 2010 Part 3A) were issued. A promised draft practice direction is still awaited. By this stage there had been no obvious review by the Group of the resources implications of the draft rules. The President’s statement is a recognition by the Ministry of Justice that the 2015 recommendations have resources implications.
In Re W (Children) (Abuse: Oral Evidence)  1 WLR 701 (above) Lady Hale spoke nearly seven years ago of what family judges can do but are not “doing at present” (emphasis provided below):
 The family court will have to be realistic in evaluating how effective it can be in maximising the advantage while minimising the harm. There are things that the court can do but they are not things that it is used to doing at present…. The important thing is that the questions which challenge the child’s account are fairly put to the child so that she can answer them, not that counsel should be able to question her directly. One possibility is an early video’d cross examination [or] cross-examination via video link. But another is putting the required questions to her through an intermediary. This could be the court itself, as would be common in continental Europe and used to be much more common than it is now in the courts of this country.”
For a child’s evidence, where she is entitled to ‘special protection’ from cross-examination by an accused in person, under YJCEA 1999 s 35 evidence can be by video-link. Lady Hale explained this in the Camberwell Green Youth Justice case  1 WLR 393:
 Thus the presumption is that all child witnesses give their evidence in chief by means of a video-recorded interview (which has been conducted for that purpose [YJCEA 1999] s 21(1)(c)), if there is one. The court does, however, have a discretion to refuse to admit the video or part of it under s 27(2). This reads:
‘(2) A special measures direction may, however, not provide for a video recording, or a part of such a recording, to be admitted under this section if the court is of the opinion, having regard to all the circumstances of the case, that in the interests of justice the recording, or that part of it, should not be so admitted.’…
“ In cases where the child is not ‘in need of special protection’, that is where the offences do not involve sex, kidnapping, cruelty or violence, the court may also disapply the rule in favour of video recording and live link, if it is satisfied that it ‘would not be likely to maximise the quality of the [child’s] evidence’ (section 21(4)(c)).”
Where “special protection” applies the court has no discretion under s 21(4)(c), said Lady Hale: “ … The irrebuttable presumption is that in all proceedings for offences of a sexual or violent nature, giving evidence in this way is likely to enable the child to give her best quality evidence.”
In principle, similar precautions for all vulnerable witnesses and video-link recording could apply for vulnerable witnesses and victims in family proceedings; save that the requirements of YJCEA 1999 s 36 for prohibiting cross-examination of a witness (victim or protected person) and providing the accused with “a qualified legal representative (chosen by the court) to cross-examine the witness in the interests of the accused” (YJCEA 1999 s 38(4)) would require primary legislation; or at least imaginative use of case management directions if legal aid can be made available for intermediary payment.
In his statement Sir James Munby P says he would “welcome a bar” to the ability of “alleged perpetrators being able to cross-examine their alleged victims”; but, he continues, “the judiciary cannot provide this, because it requires primary legislation and would involve public expenditure. It is therefore a matter for ministers.”
What Lady Hale says in Re W (Children) (Abuse: Oral Evidence)  (above) provides an authoritative guideline as to the present law in family proceedings. If that is so, the measures statutorily provided for in YJCEA 1999 ss 23-28 are covered already by the common law and rules in family proceedings. It is only the intermediary point which creates resources implications. The important question then depends on an intermediary being directed on case management in family proceedings; and then only if the intermediary or other legal assistance (per YJCEA 1999 s 38(4)) can be provided on legal aid.
Of the child in Re W  1 WLR 701 Lady Hale said (see  above):
The important thing is that the questions which challenge the child’s account are fairly put to the child so that she can answer them, not that counsel should be able to question her directly.”
If this is so of the child, does not the same apply for the vulnerable witness?
The question goes further: if “fair” questioning is the criterion, then if this cannot be done because of the effects on a witness’s evidence then can it be a fair trial if that evidence is not given through an intermediary, or counsel is not instructed per YJCEA 1999 s 36 to cross-examine for an alleged abuser in person? Lady Hale in Re A (Sexual Abuse: Disclosure)  UKSC 60;  1 FLR 948, it will be recalled, said:
 … The court’s only concern in family proceedings is to get at the truth. The object of the procedure is to enable witnesses to give their evidence in the way which best enables the court to assess its reliability. It is certainly not to compound any abuse which may have been suffered…”
If it is not a trial fair for the victim then her European Convention 1950 Art 6(1) rights are in issue and – means assessment permitting – she may be entitled to legal aid as an exceptional case determination (LASPOA 2012 s 10(3)). If this is correct, resources questions can be addressed now, without changes to primary legislation. Sir Edward Coke’s Golden Metwand of the law in this area – which Lady Hale’s comment in Re A (Sexual Abuse: Disclosure) (above) demands – could be represented by:
- The list in YJCEA 1999 ss 23–28 as developed and explained by Lady Hale in Re W can be applied in family proceedings;
- Regard being paid to the victim’s right’s to a fair trial; and as to what is required to ensure she can give evidence of a quality which is not diminished (YJCEA 1999 ss 16 and 17); and
- If this is required to be protected by special measures and an intermediary, then is her trial fair without this (where resources must be spent) and therefore without exceptional case determination under LASPOA 2012 s 10(3)?
If each of these requirements are not met in the case of a vulnerable witness – ie one where the quality of evidence may be diminished by cross-examination by an alleged abuser, his presence in court or for other reasons – special measures should be set up in the family courts and legal aid (under the present scheme: s 10(3)) be provided. The common law and the court’s inherent jurisdiction to govern its own procedures can surely be adapted accordingly?
2 January 2017
David Burrows is a solicitor advocate, trainer and writer. His book Evidence in Family Proceedings was published by LexisNexis/Family Law last year.
He writes a blog at DB Family Law