Vulnerable witnesses in family law cases and the application of PD12J

Heather PopleyNo5 Chambers

In December 2016, the president of the Family Division, Sir James Munby, issued a statement regarding the cross-examination of vulnerable people.

The statement included his concerns regarding the situation of an alleged perpetrator cross-examining their alleged victim without any legal representation in family cases.

Such a situation is seen too often, not least due to extensive public funding cuts in legal aid limiting the legal representation available.

This is not a ‘newsflash’ for family lawyers; this particular topic has been the subject of much discussion since the changes to legal aid brought about by the Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO 2012).

Despite the courts identifying the difficulties with funding that exist in recent judgments (most notably in the Court of Appeal judgments of Re K and H (Children) [2015] EWCA Civ 543 and Q v Q: Re B: Re C (Private Law: Public Funding) [2015] 1 FLR 324) little has changed.

Exceptional case funding may be available in certain cases, but often the process of seeking funding is time-consuming, with no guarantees of assistance after a lengthy application process.

The president called for the need for urgent reform from parliament, highlighting that this reform cannot come from the judiciary as it requires expenditure and a change to primary legislation.

He also confirmed that he would consider the review carried out by Mr Justice Cobb of the Family Procedure Rules 2012 Practice Direction 12J (PD12J). The review followed consultation with Women’s Aid.

PD12J provides the necessary guidance for those relevant cases involving domestic violence and harm when considering an application for a child arrangements order or other applicable order determining where a child should live.

It’s helpful guidance when considering how to determine domestic violence issues in a case (for example, whether a fact-finding hearing is necessary) and the impact that such allegations may have upon an application for contact.

The case of T (A Child) [2016] EWCA Civ 1210 is an example of the impact of the difficulties in obtaining legal aid in private law proceedings and the potential problems that may face the parties if legal aid had not been available. In this case, the Court of Appeal considered the application of PD12J in a private law application for a child arrangements order.

The background to this case can be found in the first instance judgment: Re AB (A Child) [2016] EWHC 3115 (Fam). The case concerned the successful appeal of the first instance case management decision to dismiss a previous direction for a fact-finding hearing.

The Court of Appeal allowed the appeal and ordered the fact-finding hearing to proceed despite the delays incurred in that case as such a hearing was deemed necessary to determine the issues in the case.

This was against a factual background of delay not least due to a lack of representation of both parties for over two years after the initial application was made.

Exceptional public funding was eventually granted to the parties, but by this stage almost two-and-a-half years of litigation had ensued. The mother also required special measures to assist her in giving her evidence.

This case also highlights the need for consideration of PD12J and its correct application when there are allegations of domestic violence in private law proceedings and the different legal issues to be considered alongside arguments of necessity, proportionality and fairness.

Given the current concerns over legal aid funding, had legal representation not been available to the parties, there was a distinct chance that allegations of serious domestic violence would have been left either not adjudicated or would have been dismissed without any hearing of the issues.

Without legal representation, the parties would be in the position of putting their positions to the court without legal assistance, resulting in cross-examination of one another, irrespective of whether special measures are required.

Unfortunately, this situation cannot be and is not uncommon. However, one questions where the justice is in such an approach for either party especially for a child, when trying to establish a factual basis to determine orders regarding the child’s future time with their parents?

It’s hoped that reform follows swiftly and addresses in consultation with relevant agencies, the need for the protection of vulnerable witnesses but also to enable those facing allegations to be able to ask appropriate questions to put their cases.

The president issued his 16th View from the President’s Chambers: Children and vulnerable witnesses: where are we? in January 2017 alongside the publication of the Review of Practice Direction 12J FPR 2010 - Child Arrangement and Contact Orders: Domestic Violence and Harm.