Vulnerable Witnesses in the Family Court

In September 2019, the Civil Justice Council issued a consultation report with recommendations on how to support all vulnerable witnesesses, both claimants and defendants.

The report looks at the support already available in the family and criminal courts and how that could be more effectively applied in the civil courts. The Civil Procedure Rules 1998 do not currently include specific provision in relation to vulnerable witnesses/parties, although they allow the use of many of the methods and forms of assistance and protection for vulnerable parties and witnesses used in the criminal and family courts.

Vulnerable Witnesses

The Civil Justice Council paper considers issues arising from the vulnerability of parties and witnesses in all types of litigation but arose as a result of a specific recommendation of the Independent Inquiry into Child Sexual Abuse.

When a vulnerable person become a witness in proceedings, careful consideration has to be given by the court to the level of participation and any special needs or requirements. They may have to enable full participation in the proceedings.

Consideration has to be given to the environment including a separate waiting area for the witness and steps have to be taken to assist with the process of giving evidence and cross examination.

Intermediaries

Intermediaries can be appointed to assist the vulnerable witness in giving evidence and will in the family courts have an opportunity to consider the questions to be put in cross examination. This is with a view to avoiding unnecessary repetition of questions for the witness and in order to consider how the questions could be simplified to assist the witness in their understanding of the content of the questions.

The definition of an intermediary is a person who can:

(a) communicate questions put to a witness or party;
(b) communicate to any person asking such questions the answers given by the witness or party in reply to them;
(c) explain such questions or answers so far as is necessary to enable them to be understood by the witness or party or by the person asking such questions.

Intermediaries will often ask for frequent breaks to avoid the vulnerable witness from becoming overtired when giving evidence. Sometimes having developed a rapport with the vulnerable person, the intermediary will find ways of distracting the witness when they have short breaks to help them to feel refreshed.

The process however sensitive can be difficult for vulnerable witnesses and although efforts are made to assist it, it can remain a very stressful and difficult process. The purpose of this process, however difficult, is to get the best evidence possible in a case with a view to justice being done. Although the process can be stressful and protracted, the vulnerable person should be able to participate fully.

Fiona Moffat
October 2019