Consultation of draft amendment rules
Family Procedure (Amendment No X) Rules 2015 are out for consultation, comments invited by 25 September 2015 (and see ('consultation, a postscript' (below)). Family Procedure Rules 2010 are proposed to be amended by adding Part 3A - Children and vulnerable persons: participation in proceedings and giving evidence. The draft rules have been produced with such speed that no explanatory note, or any draft practice direction (as proposed by the rules) is included, and errors in proof reading are obvious. The reader - who may him/herself be a 'child or vulnerable person' - is expected (at least at this stage) to work out what the draft is all about.
After looking at the content of the draft rules, this article will proceed:
Framework of the draft amendments
- by urging clarity of procedural law upon Family Procedure Rules Committee (FPRC), especially in this field of law;
- by an examination of the background to the consultation and context of the draft rules;
- by asking whether these rules are truly compliant with the common law; and, alongside that
- by urging on FPRC a non-Alsationised approach (a term to be explained) to civil and family law reform; and
- it will add some notes on consultation rules.
Part 3A starts with an 'interpretation' rule, which leaves out more than it says (and see 'clarity' (below)): for example:
The draft rules impose on the court a duty to consider whether r 3A(2), and, if so, how (r 3A.3) a child should 'participate in proceedings'. if a child is to participate r 3A.3(2) sets out the 'case management' directions which the court should consider and what these directions should contain.
- The term 'vulnerable person' referred to in the title to Part 3A is not used again, still less is it defined; though it is implied by the concept of participation or evidence being 'likely to be diminished' (see, eg, rr 3A.4(1) and 3A.5(1)).
- What is meant by 'proceedings where a child is involved' is not explained (eg is it as a witness, as a party, or any proceedings which concern a child, or is it intended to be the same as 'participation' as set out in r 3A.2(2)?)
- Participation of a party or their evidence 'is likely to be diminished' is stated by rr 3A.1(1), (3A.41) and 3A.5(1); but 'diminished' by what? If something is 'diminished' it can only be by reference to something else (eg 'The strength of my argument is diminished by your comments upon it)'? The word 'diminished' can have no meaning in the absence of the qualifier 'by'?
- Ability to 'participate in the proceedings' (r 3A.2 and 3A.3) is not defined: what proceedings? What does 'participate' mean in this context (eg is it the same as 'involved'?)?
- Is 'case management' meant to mean something different from the term as it applied in Civil Procedure Rules 1998 Part 3 and FPR 2010 Part 4?
Rules 3A.4 and 3A.5 move away from children, and consider the 'participation' and 'evidence' of a party to proceedings (presumably intended to apply to a 'vulnerable' individual), and whether this 'is likely to be diminished' (but by what? - see above). The rules set out what case management directions may be necessary.
Rule 3A.6 tells the court to what it must have regard when it considers making case management directions in relation to the previous three rules. Rule 3A.7 sets out 'measures' (referred to in earlier rules) for protection of the children or vulnerable parties or witnesses concerned (eg evidence by video link; assistance from an intermediary; and see comments of Lady Hale at the conclusion of Re A (Sexual Abuse: Disclosure)  UKSC 60,  1 FLR 948). Rules 3A.8 and 3A.9 asserts when the rules apply ('as soon as possible after the start of proceedings: r 3A.8(1)); and what an application must include. The court can proceed on its own initiative (FPR 2010 rr 3A.10) in respect of a child or a party; but what does a witness, or child not a party do to activate the rules? A party applied under FPR 2010 Part 18 (r 3A.9(3)). Reasons for its decision must be recorded by the court (r 3A.11).
It is not clear why these amendments are added at '3A' (this numbering concept, in itself, may need to be explained to those whom it concerns). It has elements which should cross-refer to FPR 2010 Parts 15 (protected parties), 16 (representations of children), 22 and 23 (evidence in family proceedings); and even about costs (Part 28). Why not - as Civil Procedure Rules 1998 do - just add the rule at the end as Part 39, and cross-refer to Parts 15 etc as need be?
Ground rules: clarity, 'simple expression' and vulnerable persons
The first line of text to the draft correctly states that FPRC make the rules in exercise of its powers under Courts Act 2003 ss 75 and 76. Section 75(5) requires that any power to make these rules must be
(5) ... exercised with a view to securing that--
(a) the family justice system is accessible, fair and efficient, and
(b) the rules are both simple and simply expressed
If these amendment rules do not come up to that - admittedly subjective - standard, then they may be unlawful from the start. Section 75(5) broadly complies with Lord Bingham's first rule of his 'Rule of law' (http://www.cpl.law.cam.ac.uk/past_activities/the_rule_of_law_text_transcript.php): that -
'... the law must be accessible and so far as possible intelligible, clear and predictable. This seems obvious: if everyone is bound by the law they must be able without undue difficulty to find out what it is, even if that means taking advice (as it usually will), and the answer when given should be sufficiently clear that a course of action can be based on it.'Given that Part 3A's main consumers will be 'vulnerable' individuals and some children, special allowance should be made for their understanding and difficult circumstances at the time of having to read and have 'access' to these rules. They must not be drafted only for the understanding of lawyers, whom only very few (and mostly the better educated) can still afford to instruct.
Background and context for the rules
H v L and R  EWHC 3099 (Fam),  2 FLR 162 emphasised how backward were some of their procedural rules for dealing with children and vulnerable individuals - known predominantly in most civil proceedings contexts as 'protected parties' and witnesses. In that case Roderic Wood J considered how he could protect X, a 20 year old who was to be cross-examined by the father of the child in the case (X's half-sister) whom, X alleged, had abused her when she was nine. Said the judge, she -
' ... was a borderline anorexic, and a suicide risk. Thus the question of by whom she should be cross-examined was of particular import, although I do not believe that the resolution of the issue of who should cross-examine such a witness in other cases is dependent on the existence of such features of vulnerability (both physical and psychological).'He examined how this was done in criminal trials under Youth Justice and Criminal Evidence Act 1999, s 5, and concluded:
' I would invite urgent attention to creating a new statutory provision which provides for representation in circumstances analogous to the existing statutory framework governing criminal proceedings as set out in [YJCEA 1999] ... I can see no distinction in policy terms between the criminal and the civil process. Logic strongly suggests that such a service should be made available to the family jurisdiction. If it is inappropriate for a litigant in person to cross-examine and witness in the criminal jurisdiction, why not in the family jurisdiction?'
And that is where the law still stands in family proceedings.
Meanwhile, in the criminal courts, cross-examination of vulnerable witnesses may be limited (YJCEA 1999, s 22; and see Criminal Procedure Rules 2014, rr 29.8 - 29.13, especially r 29.9). As Simon Heaney explains in 'Safety Measures: Vulnerable Witnesses'  June Family Law Journal at 7) and as Roderic Wood J emphasises, civil and family lawyers trail a long way behind their criminal law colleagues.
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