Sir James Munby, President of the Family Division, has circulated the Interim Report of the
Children and Vulnerable Witnesses Working Group for consultation, discussion and comment. Any observations should be sent to his Assistant Private Secretary, Jo Wilkinson, by email to
Joanna.wilkinson@judiciary.gsi.gov.uk.
1. Introduction and aims: The Working Group (WG) (headed by Hayden J
and Russell J[1])
was set up by Sir James Munby, President of the Family Division with the
following aims which were set out in the
12th “View from the President’s Chambers” published on 4th June 2014:
‘First, it is time to review the Family Justice Council’s
April 2010
Guidelines for Judges Meeting
Children who are Subject to Family Proceedings
[2010] 2 FLR 1872,
particularly in the light of the Court of Appeal’s recent decision in
Re KP (Abudction: Child's Objections)
[2014] EWCA Civ 554, [2014] 2 FLR (forthcoming and reported at [2014] Fam Law
945).
Secondly, it is time to review the Family Justice Council’s
Working Party’s December 2011
Guidelines in
Relation to Children Giving Evidence in Family Proceedings
[2012] Fam Law
79. Those Guidelines were prepared following the decision of the Supreme Court
in
Re W (Children) (Abuse: Oral
Evidence)
[2010] UKSC 12, [2010] 1 FLR 1485. Since then we have had the
decision of the Supreme Court in
Re LC
(Reunite: International Child Abduction Centre Intervening)
[2014] UKSC 1, [2014]
1 FLR 1486.
Thirdly, there is a pressing need for us to address the
wider issue of vulnerable people giving evidence in family proceedings,
something in which the family justice system lags woefully behind the criminal
justice system. This includes the inadequacy of our procedures for taking
evidence from alleged victims, a matter to which Roderic Wood J drew
attention as long ago as 2006:
H v L and
R
[2006] EWHC 3099 (Fam), [2007] 2 FLR 162. As HHJ Wildblood QC
observed in
D v K and B (By Her Guardian)
[2014] EWHC 700 (Fam), [2014] Fam Law 1094, para 6(ii), processes which we
still tolerate in the Family Court are prohibited by statute in the Crown
Court. We must be cautious before we rush forward to reinvent the wheel. A vast
amount of thought has gone into crafting the arrangements now in place in the
criminal courts: see for example, in addition to the Criminal Procedure Rules,
the Criminal Practice Directions [2013] EWCA Crim 1631, CPD 3D-3G, the Judicial
College’s Equal Treatment Bench Book, Lord Judge’s Bar Council Annual Law
Reform Lecture 2013,
The Evidence of
Child Victims: the Next Stage
, the Criminal Bar Association’s DVD, A
Question of Practice, and the relevant ‘toolkits’ on ‘The Advocate’s Gateway’,
funded and promoted by the Advocacy Training Council:
www.theadvocatesgateway.org/toolkits. We need to consider the extent to which
this excellent work can be adapted for use in the Family Division and the
Family Court.’
14. Timetable: It is the aim of the WG that the rule change will be in place by
January 2015. Proposed rules will have to go the FPRC by the end of October
2014 to adhere to the proposed timetable. The WG is due to meet in early
October when the draft rules can be discussed.
15. Consultation: In his 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.”
16. Judicial
Liaison:
Hayden J will 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.
17. Preliminary consultation as set out above will take place through the
FJC (including with expert members of the Council) on the drafts after that
meeting with wider consultation taking place afterwards when more refinement of
the drafts has taken place.Russell J to liaise with FJC and arrange consultation with FJC experts.
AH
& AHR
July 2014
Appendix I
Membership
of the Working Group
The Hon Mr Justice Hayden
The Hon Ms Justice Russell
Luke Berry (FJYPB)
Her Honour Judge Sally Cahill QC
Melanie Carew (Cafcass Legal)
Alex Clark (Office of PFD/Secretary FJC)
Professor Penny Cooper (Advocates Gateway)
Rhian Davies (Cafcass Cymru)
Marie Gittins (FJYPB)
His Honour Judge Clive Heaton QC
Caroline Little (FJC solicitor)
Joe Murphy (MoJ)
Rebecca Musgrove (FJYPB)
Joyce Plotnikoff (Advocates Gateway)
Greg Watkins (HMCTS)
Malek Wan Daud (FJC barrister)
Jo Wilkinson (Office of PFD)
Acknowledgements
In
addition to the members of the working group the authors would like to thank
the following for the time and assistance they have given:
Mr Justice Haddon-Cave
Mr Justice Green
Professor Penny Cooper
Melissa Elsworth
Appendix II
Bibliography
of some suggested source material
Legislation/Guidance
Children (Admissibility of Hearsay Evidence)
Order 1993
Children
Act 1989
Children
Act 2004 (Part 2)
Coroners
and Justice Act 2009
Equality
Act (Disability) Regulations 2010
Equality
Act 2010
Family
Law Act 1996
Protection
from Harassment Act 1997
Criminal
Justice and Court Services Act 2000 (CAFCASS)
Family
Justice Council (2011) ‘Guidelines in Relation to Children Giving Evidence in
Family Proceedings’
http://www.judiciary.gov.uk/wp-content/uploads/JCO/Documents/FJC/Publications/Children+Giving+Evidence+Guidelines+-+Final+Version.pdf
Matrimonial and Family Proceedings Act 1984
Family
Procedure Rules 2010
Human
Rights Act 1998
Youth
Justice and Criminal Evidence Act 1999
