Family judges are to receive guidance on dealing more appropriately with children and other vulnerable witnesses.
The interim report of a working group set up by Sir James Munby, head of the Family Division, says the family system ‘lags woefully behind’ the criminal justice system in this regard.
The group, lead by Mr Justice Hayden and Ms Justice Russell, says the Family Court still tolerates processes that are prohibited by statute in the Crown Court, and stresses there is a ‘pressing need’ for that to be addressed.
Cautioning against reinventing the wheel, the group proposes 20 recommendations that seek to adapt procedures drawn up by the Advocacy Training Council (ATC) for use in the criminal courts. ’We need to consider the extent to which this excellent work can be adapted for use in the Family Division and the Family Court,’ it says.
Included among the recommendations are rules requiring that the court or judge identify whether a party or witness is vulnerable at the outset of the proceedings and make provision for such support, special measures or other assistance they may need to properly and fully participate in the proceedings and to give best evidence.
Judges would also be required to recognise the role and needs of any children involved in the proceedings, giving them the opportunity of communicating with the judge and considering how best to provide for their participation and support.
Particular consideration should be given to the provisions for parties and witnesses in cases of forced marriage and female genital mutilation, the report adds.
The working party notes that in forced marriage cases, nullity hearings are in open court when the protected person is a vulnerable witness who is likely to have to give evidence of a most intimate and sensitive nature.
In female genital mutilation cases, the child and/or other witnesses are most likely to need support and special measures, and such support and assistance should be provided by the judge, court and advocates.
The practical application of the work of the ATC to the family justice system is already under way in the form of general guidance for family lawyers and advocates being prepared by the Advocates’ Gateway as a toolkit for use in family proceedings.
The draft guidance is due to be published this autumn. The report notes that some judges have already taken steps to help vulnerable witnesses on their own initiative, making use of intermediaries and pre-recorded oral evidence.
The proposed rule changes will go to the Family Procedure Rule Committee in late October, with implementation anticipated by the beginning of 2015.