Family Courts: The Importance Of Protecting The Vulnerable 

Published on 17 January, 2022 | Rachel Cocker

Over the course of any given year, the family courts across England and Wales are called on to deal with an immense volume and breadth of work.

For instance, some 63,084 new cases began between July and September this year alone (https://www.gov.uk/government/statistics/family-court-statistics-quarterly-july-to-september-2021/family-court-statistics-quarterly-july-to-september-2021).

They included matters relating to divorce, childcare, mental health, domestic abuse and probate.

Given that span of topics, it is perhaps natural that some feature vulnerable individuals who might have reservations about their ability to present evidence on issues which are often very sensitive.

Of course, fairness and equal access to justice are two of the fundamental principles by which family courts operate.

There are particular protocols in place to ensure that they are abided by. One is part 3A of the Family Procedure Rules (https://www.justice.gov.uk/courts/procedure-rules/family/practice_directions/practice-direction-3aa-vulnerable-persons-participation-in-proceedings-and-giving-evidence).

It sets out how a party or a witness connected to a case is deemed vulnerable if they are or are “at risk of being” a victim of domestic abuse committed by someone involved in the proceedings.

Such a determination, it continues, “places duty on the court to consider whether the quality of evidence given by a party or witness is likely to be diminished by reason of vulnerability “.

Furthermore, another protocol (https://www.justice.gov.uk/courts/procedure-rules/family/practice_directions/practice-direction-3aa-vulnerable-persons-participation-in-proceedings-and-giving-evidence) describes how there should be a ‘ground rules hearing’ to establish the practicalities of taking that evidence.

That can entail giving evidence in court from behind a screen or by video link to ensure that the parties don’t see each other – something which, therefore, reduces the possibility of the vulnerable party feeling intimidated.

Concerns have been raised, however, about the degree to which these rules are adhered to.

In 2019, the then President of the Family Court, Sir James Munby, set up a working group to examine “access to justice problems” and advise on how best to address them.

When the group delivered a report in March last year (https://www.judiciary.uk/wp-content/uploads/2020/04/PRIVATE-LAW-WORKING-GROUP-REPORT-1.pdf) it noted that “there was some concern expressed about the limited attention given by judges to the appropriateness of special measures in court for those who are vulnerable”.

Those observations are more than merely abstract, as a new Family Court judgement makes clear (https://www.bailii.org/ew/cases/EWHC/Fam/2021/3225.html).

It was brought by a woman whose application for leave to take her child back to her home country in Eastern Europe after the breakdown of a relationship with its British father had been refused in December last year.

During the course of the initial, unsuccessful proceedings, the woman had made allegations of rape and domestic abuse.

Mrs Justice Judd, who heard the appeal, decided that there had been no ‘ground rules hearing’ to establish how the claims should be dealt with.

She pointed out that the provisions set out in the Family Procedure Rules “are mandatory” with the obligation to follow them being “upon the court”.

Despite the mother not explicitly seeking any special measures, the court itself should have been more protective in its approach, particularly in relation to the father’s needing to ‘see’ the mother on-screen as he took part in the proceedings remotely via a video link.

As a result, the judge allowed the woman’s appeal, stating that another hearing would have to deliberate on whether the child would be allowed to return to the mother’s country of origin or would instead be raised here in a shared care arrangement.

The “delay, expense and distress” for both parents and the child was not ideal, said Mrs Justice Judd, “but in the circumstances it is impossible to avoid”.

It is, in my opinion, an important judgement in that it once more raises awareness of the importance of the justice system safeguarding vulnerable individuals and ensuring that all necessary steps are taken to offer protection to witnesses where appropriate.

Since the case in question began, for example, such themes have assumed a notable part in the Domestic Abuse Act which became law at the end of April this year (https://www.legislation.gov.uk/ukpga/2021/17/contents/enacted).

One part of that legislation prohibits perpetrators of domestic abuse from cross-examining their victims during family proceedings.

Adequate consideration of special measures for and treatment of vulnerable individuals means making sure that they have confidence about their voices being heard.

Only then will there truly be equal access to justice in the family courts.