Family law is in need of an update, according to the interim report of a working group set up by Sir James Munby, head of the Family Division. This isn’t necessarily surprising and may well be overdue, as the Family Court is falling behind the Crown Court in regard to how it treats vulnerable witnesses. Given that many of the witnesses who speak in the Family Court are children and others who might be considered ‘vulnerable’, there is an obvious need for this to be addressed.
The working group isn’t trying to place too much pressure on the Family Court, of course. Instead of trying to rebuild the system from the ground up, it has proposed 20 recommendations that will attempt to adapt procedures that were created by the Advocacy Training Council (ATC) for use in criminal courts. These procedures will provide guidance for judges in the Family Court, helping them treat children and other potentially vulnerable witnesses with the respect and consideration that they deserve.
One of the purposes of these recommendations is to help the courts recognise ‘vulnerable’ witnesses early on. Instead of adapting tactics when a witness becomes overwhelmed, the court would work to identify potentially vulnerable witnesses at the beginning of proceedings so that appropriate measures could be taken from the outset to shield the witness from potential upset. This would not only provide additional protection for the most fragile witnesses, but would also allow those witnesses to more fully participate in the proceedings and would help ensure the accuracy of testimony by preventing stress or intimidation that could cause a witness to change or recant his or her story.
Another key purpose of the recommendations is to allow children to more fully participate in proceedings without exposing them to undue pressure or mental anguish. The recommendations would require presiding judges to recognise the needs of any children involved in a case, allowing the child to communicate with the judge as needed, and develop a means of participation in the proceedings that would be both beneficial to the proceedings and supportive of the child’s needs. This is especially important in cases dealing with stressful issues such as divorce or where abuse may have occurred.
Support in Grievous Cases
Of particular importance in the recommendations are cases in which one of the parties may need protection and support, such as in cases to nullify a forced marriage or cases dealing with genital mutilation. Given the mental anguish that can be associated with these topics, the recommendations would help the court recognise how personal and sensitive some testimonies may be and would strive to keep these testimonies protected from the stress of open court. This would not only protect the victim but would also prevent important evidence from being lost to intimidation or humiliation.
Changes Are Coming
While these recommendations come from an interim report that hasn’t yet been approved for use in English law, they do represent an upcoming change to how the Family Court deals with sensitive and vulnerable witnesses. The final draft of the report is expected to be released in the autumn, with it being passed to the Family Procedure Rule Committee in late October. Barring any unexpected hurdles, the rules are expected to be implemented by the beginning of 2015. Some lawyers and judges are already working on implementing the rules on an unofficial basis, taking more care of potentially vulnerable witnesses and working together to identify them earlier in Family Court proceedings so that their needs can be better met.