Consultation on new FPR 2010, Pt 3A—vulnerable witnesses and children
Family analysis: The Family Procedure Rules Committee (FPRC) has made recommendations arising from the final report of the Vulnerable Witnesses & Children Working Group (VWCWG). A consultation has been opened on proposed changes to the Family Procedure Rules 2010 (FPR 2010) regarding vulnerable witnesses and children, in particular a new Pt 3A.
The VWCWG published its final report on 17 March 2015. The report included a set of draft model rules. The VWCWG asked the FPRC to consider whether, and if so how, their recommendations and draft rules could be implemented. The FPRC has considered the draft rules and made some amendments. The FPRC now seek comments on the revised set of draft rules and a consultation has been set up.
What was the VWCWG tasked to do?
In June 2014 the VWCWG was established by Sir James Munby, President of the Family Division, to:
- review judicial guidance for judges meeting children
- consider how the voices of children and young people could be brought further to the fore in the family courts, and
- consider and address the wider issue of children and vulnerable people giving evidence in family proceedings
The VWCWG published an interim report with initial recommendations in August 2014. The interim report was subject to extensive consultation across the family justice system. The consultation responses informed the final report of the VWCWG which was published on 17 March 2015.
What are the VWCWG's recommendations?
The VWCWG final report recommended:
- new rules in relation to how a child can participate in family proceedings to be added to the Family Procedure Rules 2010, SI 2010/2955
- provision for the identification of vulnerable witnesses and the arrangements that will need to be put in place, and
- a set of draft model rules
What has the FPRC been asked to do?
The VWCWG has asked the FPRC to consider whether, and if so how, the recommendations and draft rules in the VWCWG final report can be implemented.
What are the key recommendations of the FPRC that family practitioners should take note of?
The FPRC supports the implementation of the VWCWG proposals by means of a new rule designed to emphasise the importance of the participation of children and vulnerable persons at all stages of family proceedings, in particular during early case management.
In practice, what is proposed is a new part to the FPR 2010, ie: Pt 3A: Children and Vulnerable Persons: Participation in proceedings and giving evidence. The draft new FPR 2010, Pt 3A covers issues regarding children and vulnerable parties.
Before any amendments to FPR 2010, SI 2010/2955 can be finalised, a consultation must take place in accordance with the provisions of the Courts Act 2003, s 79(1)(a).
Will there be any other amendments to FPR 2010?
Practical details of the courts' consideration of the draft FPR 2010, Pt 3A will be addressed in a new Practice Direction that will be formulated by the President of the Family Division. This is not the subject of consultation.
The FPRC are considering amendments to other provisions in FPR 2010, SI 2010/2955 consequential on the creation of FPR 2010, Pt 3A.
What are the consultation questions that practitioners should focus on?
The VWCWG is seeking views on the draft new FPR 2010, Pt 3A and on specific questions in relation to the following topics:
United Nations Convention on the Rights of the Child (UNCRC)
There is a need to reflect UNCRC, art 12 and the right of a child to express a view if they wish and are old enough (see also ZH (Tanzania) v SSHD  UKSC 4,  1 FCR 221). There is provision in children proceedings for the court to consider the attendance of the child under FPR 2010, SI 2010/2955, 12.14.
UNCRC, art 12 provides that:
- a child who is capable of forming their own views has the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child, and
- for this purpose, the child has the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law
The consultation questions for practitioners to consider in relation to UNCRC, art 12 are:
- Does the draft FPR 2010, 3A.1 identify with sufficient clarity and robustness, the circumstances when the court should be considering ensuring that children are able to participate appropriately in the proceedings in the light of UNCRC, art 12?
- The draft FPR 2010, 3A.1 refers to 'where proceedings involve a child'--is the use of the word 'involve' sufficiently clear about which children are covered by the rule?
- The draft FPR 2010, 3A.2(1) provides that the court must consider whether a child should participate in the proceedings by reason of meeting one of the conditions in draft FPR 2010, 3A.2(2)--are these conditions appropriate? If not, please give reasons
The overriding objective, in accordance with FPR 2010, SI 2010/2955, 1.1, is to enable the court to deal with cases justly having regard to any welfare issues involved. Dealing with a case justly includes, so far as practicable:
- ensuring that it is dealt with expeditiously and fairly
- dealing with the case in ways that are proportionate to the nature, importance and complexity of the issues
- ensuring that the parties are on an equal footing
- saving expense, and
- allotting to it an appropriate share of the court's resources, while taking into account the need to allot resources to other cases
FPR 2010, SI 2010/2955, 1.1 does not refer to children. Some FPRC members raised concerns that this is an omission and would like to see the overriding objective updated to reflect the need to consider children within proceedings.
The consultation questions for practitioners to consider in relation to FPR 2010, SI 2010/2955,1.1 and the overriding objective are:
- Should the overriding objective be amended so as to emphasise the consideration by the court of participation by children in proceedings?
- Is the overriding objective sufficiently dealt with in the draft FPR 2010, Pt 3A, as it appears at draft FPR 2010, 3A.3(3), 3A.4(3) and 3A.5(3) taking account of the court's duty under FPR 2010, SI 2010/2955,1.2 to give effect to the objective whenever it exercises any power given to it by the rules or interprets any rule?
Draft FPR 2010, Pt 3A sets out that the court has discretion to make directions where a vulnerable witness or party's participation in proceedings is 'likely to be diminished'. The VWCWG considered how best to establish when this rule applies and also considered further criteria but, on balance, felt that a more high level description was required to make sure that the court has control and can make decisions on eligibility without being restricted by any specific criteria.
The consultation questions for practitioners to consider in relation to eligibility are:
- Do you agree with the use of the phrase 'is likely to be diminished' to define the persons other than children to whom the rules apply and who may be eligible for assistance (see draft FPR 2010, 3A.1(1)(b), 3A.1(1)(c), 3A.4(1), 3A.5(1), 3A.9(1)(a) and 3A.9(1)(b))?
- Do you think that the proposed rule, which is intentionally drafted at a high level, provides sufficient clarity for judges, practitioners, parties and court staff to be clear about the specific circumstances in which it should be applied?
In addition to eligibility, the VWCWG says that the special measures in draft FPR 2010, 3A.7(1) must be used appropriately in order to make sure the court complies with the overriding objective (FPR 2010, SI 2010/2955, 1.1) and makes best use of available resources. For example, the current provision of intermediaries at court in family proceedings is at the discretion of the judiciary and requires agreement from Her Majesty's Courts and Tribunals Service (HMCTS) before funding is provided. Consequently, new rules need to reflect this arrangement and support the most appropriate use of such a provision.
Draft FPR 2010, 3A.5 states that the court must consider whether the quality of evidence given by a party or witness is likely to be diminished and, if so, whether it is necessary to make one or more directions in order to assist the party or witness give evidence. Draft FPR 2010, 3A.6 sets out a list of factors that the court must have regard to. Draft FPR 2010, 3A.6(j), 3A.7(4) and 3A.11(2) deal with the availability of measures. Draft FPR 2010, 3A.4 makes similar provision about a party's participation in proceedings.
The VWCWG welcome views on whether additional safeguards are required to make sure that the measures are used appropriately and in accordance with available resources.
The consultation questions for practitioners to consider in relation to special measures are:
- Should certain measures in draft FPR 2010, 3A.7(1) be subject to an enhanced level of agreement from a senior judge?
- In particular, should there be a further test before a party or vulnerable witness is eligible for assistance from intermediaries?
- Should some measures be subject to availability, or should there be express provision for discussion between the judge and HMCTS staff on the availability of a measure before a direction is made?
Factors the court is to have regard to
The VWCWG has noted that reference to a party's or witness's employment is not contained in the list of factors the court is to have regard to in draft FPR 2010, 3A.6.
The consultation questions for practitioners to consider in relation to factors the court is to have regard to are:
- Would a party's or witness's employment status be relevant to the consideration?
- If so, should a reference to employment be included in the list of factors?
What action should lawyers take in light of the consultation and the proposed draft FPR 2010, Pt 3A?
The consultation runs from 3 August 2015 until 5 pm on 25 September 2015. Practitioners are invited to respond to the above questions and provide any comments that they may have on draft FPR 2010, Pt 3A.
Comments should be sent to:
- Clive Buckley, Secretary to the Family Procedure Rule Committee, 4.32, Ministry of Justice, 102 Petty France, London SW1H 9AJ, or
Kirstie Gibson, solicitor in the Lexis®PSL Family team.
This News Analysis was first published in Lexis®PSL Family.