S (Vulnerable Party: Fairness of Proceedings)



Judge: Baker LJ, Whipple LJ and Francis J

Citation: [2022] EWCA Civ 8

Summary

The Court of Appeal considered how to handle vulnerable witnesses in the Family Courts and the need to proactively identify vulnerable witnesses.

The case concerned care proceedings relating to a child, S. The main issue in proceedings related to injuries sustained by another child (J) while in the care of S’s parents. The judge hearing the case at first instance concluded that J’s injuries were partly accidental and partly inflicted by his own mother, A. A had assessed in separate proceedings relating to her own child, J. A had been able to give instructions, and due to the pandemic her legal team had not met her face to face until the appeal hearing.

A (who was an intervenor in the case) appealed.

Permission to appeal was allowed to be brought on a ground of procedural unfairness. She argued that the court had made findings against her which exceeded those sought in the schedule, without any reason for doing so. She argued that she ‘has had significant findings made against her in proceedings not related to the welfare of her child and in which no relevant social worker evidence was produced.’ (paragraph 20) A further argued that court had not taken account of her cognitive difficulties, and had not considered adjustments which might be required to ensure her participation (which may have been assisted by the use of an intermediary).

The Court of Appeal recorded that it was confident A had been treated fairly in the context of what had been known about her needs at the time. However, the later evidence made clear that she did have cognitive difficulties and there was a significant possibility that this would have affected the judge’s view of the quality of her evidence.

The Court of Appeal set out the requirements of Part 3A of the Family Procedure Rules, which require the court to consider whether a party’s participation in proceedings is likely to be diminished by reason of giving evidence, and if so to consider whether to make ‘participation directions’. Participation directions are defined as being either ‘a general case management direction for the purpose of assisting a witness or party to give evidence or participate in proceedings’ or one of a range of measures set out in r3A.8. These include in particular providing for the witness or party to have the assistance of an intermediary.

The Court of Appeal set out at paragraph 39 the duties of the court, the parties and their representatives to identify vulnerable parties or witnesses in a case:

It is equally clear that the duty to identify any party or witness who is a vulnerable person, and to assist the court to ensure that each party or witness can participate in proceedings without the quality of their evidence being diminished, extends to all parties to the proceedings and their representatives. It will almost invariably be one of the parties or their representatives, rather than the court, who first identifies that a party or witness is or may be vulnerable. We consider that good practice requires the parties’ representatives actively to address the question of whether a party is vulnerable at the outset of care proceedings. Indeed, as social workers will as a matter of course be looking for vulnerabilities in families as part of their practice, it is to be hoped that this issue will be identified before care proceedings are started. We recognise, however, that it is often not easy to identify vulnerabilities and that professionals dealing with urgent and difficult situations in families will have to contend with a large number of issues. For that reason, we consider that, to comply with the obligation under rule 3A.9, the judge conducting the case management hearing at the start of care proceedings should as a matter of course investigate whether there are, or may be, issues engaging Part 3A of the rules and that the parties’ advocates should as far as practicable be in a position to respond. Furthermore, rule 3A.9 stipulates that the court’s duty continues to the end of the proceedings. There will therefore be other points at which the court may have to address the issue – for example, where another party is joined to the proceedings.

The Court of Appeal stressed [42] that a failure to comply with these provisions will not invariably lead to a successful appeal: the question in each question will be whether there has been a serious procedural irregularity, and if so, whether as a result the decision was unjust. On the facts however this was such a case.

Comment

The comments at [39] of the judgment on the steps which should be taken to identify any vulnerable witnesses, and what should happen once such identification is made, make interesting reading for COP practitioners. Parties other than P may well have their own vulnerabilities, and the observation of the Court of Appeal that good practice requires not only that parties’ representatives actively address the question at the outset of proceedings but also that the judge conducting the case consider the matter is surely pertinent notwithstanding the lack of equivalent provision in the COP Rules.

Although the COP Rules do not provide for some of the measures identified in r3A.8 (the use of intermediaries, for one), a number of measures to assist vulnerable parties can be made in exercise of the court’s general case management powers – see for an example the decision of HHJ Hilder in Re IOSK, a recent vaccination case reported elsewhere in this newsletter.

It should also be noted that the COP Rules provide that in any case not expressly provided for under the Rules, the court may apply either the Civil Procedure Rules or the Family Procedure Rules with any necessary modifications, in so far as necessary to achieve the overriding objective (COPR 2017 r2.5). In an appropriate case, the court may consider the provisions in both other sets of rules dealing with the participation of vulnerable individuals.

 

CategoryPractice and procedure - Other, Practice and procedure Date

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