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Articles ‘Let’s see how we get on’ or the need for regulated provision of registered witness intermediaries in family proceedings RADHIKA HANDA and SARAH TYLER, Barristers, Coram Chambers About the authors Radhika Handa regularly acts in private law cases in which issues of domestic violence, alcohol/substance misuse and mental health problems arise. In public law cases, Radhika has acted in cases involving serious allegations of physical injury and sexual abuse. Sarah Tyler’s practice encompasses all areas of family law, with a particular focus on cases concerning family finance and relationship breakdown, private law children and public law children.
This article considers the use of intermediaries for vulnerable adults in family proceedings; whether as parents, interveners or witnesses. An adult party lacking mental capacity will be represented by a litigation friend, usually the Official Solicitor. The adult may, however, have capacity to give evidence on factual matters and therefore may need an intermediary. Alternatively, a party or witness may have capacity but have learning or other difficulties in comprehension and communication, thus requiring an intermediary to participate fully in the proceedings, including giving evidence.
Need for an intermediary Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (the European Convention) affirms: ‘In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.’ Baroness Hale restated the importance of Art 6 of the European Convention in Re W (Children) (Abuse: Oral Evidence) [2010] UKSC 12, [2010] 1 FLR 1485, at paras [23]–[24]: ‘The object of the proceedings is to achieve a fair trial in the determination of the rights of all the people involved.’ ‘… A fair trial is a trial which is fair in the light of the issues which have to be decided. . . . the object of the proceedings is to promote the welfare of this and other children. The hearing cannot be fair to them unless their interests are given great weight.’ More recently Baroness Hale held in Re A (Sexual Abuse: Disclosure) [2012] UKSC 60, [2013] 1 FLR 948, at para [25]: ‘The right to a fair trial is absolute but the question of what is fair may depend upon the circumstances of the case. There are the article 8 rights of A, M and F to respect for their private and
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family lives. There is also the article 8 right of X to respect for her private life. Article 8 rights are qualified and can be interfered with if it is necessary in a democratic society in order to protect the rights of others.’ She added: ‘the court’s only concern in family proceedings [is] to get at the truth. The object of the proceedings is to enable the witness to give their evidence in the way which best enables the court to assess it reliability’ (para [36]). Getting at the truth is rarely straightforward. This problem is magnified where parents or witnesses lack capacity, have low IQ or learning difficulties, and have difficulties in comprehending and giving evidence. A recent University of Bristol and Norah Fry research centre study (Swift et al, ‘What happens when people with learning disabilities need advice about the law?’ (2013)) suggested that 12.5% of the parents involved in care proceedings had learning disabilities (para 3.2.1). This has serious implications. A party’s ability to understand and communicate in court may have consequences for their Art 6 rights and those of any subject child. If Art 6 rights are compromised, there may be a consequent unlawful interference with the Art 8 rights of the parties to the proceedings. Psychologists can assess an individual’s ability to give evidence and engage in the court process by recommending mechanisms to ensure that the process is fair and Art 6 compliant. The vital question is how to put such mechanisms into effect.
Intermediaries in criminal courts Witness intermediaries are available in criminal proceedings as a special measures (s 29(1) of the Youth Justice and Criminal Evidence Act 1999) providing certain criteria are met (s 16). The intermediary’s function (s 29(2)) is to communicate: • •
to the witness, questions put to the witness; and to any person asking such questions, the answers given by the witness in reply to them, and to explain such questions or answers so far as necessary to enable them to be understood by the witness or person in question.
Intermediaries are professionals who are recruited and accredited by the Ministry of Justice with their details held on a register. They must adhere to the Registered Intermediary’s (RI) codes of practice and ethics. RIs are professionally regulated by the Witness Intermediaries Registration Board and subject to a complaints and investigations procedure. RIs must be impartial and neutral with a paramount duty to the court. Currently there are no national standards for intermediaries operating outside the registered scheme. The scheme does not extend to family courts or vulnerable defendants in criminal proceedings although a statutory scheme for the latter is anticipated by s 104 of the Coroners and Justices Act 2009 (not yet implemented). The intermediary will usually be involved in the following ways: •
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Reading relevant documents and assessing the client’s particular needs; ensuring the intermediary has the requisite skills and experience; and recommends specific measures to ensure the client can participate fairly in the court process. Attending conferences to build rapport and understanding. Attending a ‘ground rules’ hearing with the Judge and advocates to clarify appropriate communication and strategies, and measures to be used throughout the hearing. During the hearing the intermediary may explain the evidence in small ‘chunks’ and highlight key points; take notes on the client’s behalf; monitor the client’s emotional and psychological state and concentration; and alert the judge to any difficulties including the need for a break.
In the absence of statutory provision, the criminal courts have resorted to the use of inherent powers to provide intermediaries (SC v United Kingdom [2005] 40 EHRR 1). In C v Sevenoaks Youth Court [2009] EWHC 3088 it emerged the Ministry of Justice voluntarily funded intermediaries in appropriate cases, conscious of anticipated statutory provision and European Convention obligations. In R v Cox [2012] EWCA Crim 549, an intermediary could not be obtained for a defendant with complex learning difficulties. The trial judge had proceeded on the basis that he would be
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Intermediaries in family proceedings It is startling that similar statutory provision neither exists in family proceedings, nor is it anticipated. The valuable role RIs could have is increasingly evident, including to the judiciary. In Re X (A Child: Evidence) [2011] EWHC 3401 (Fam), [2012] 2 FLR 456, Theis J expressed ‘very great concern’ about the state of funding to enable children (or any party) to give evidence (para [36]). The 2011 Norgrove Family Justice Review recommended ‘the government and the judiciary should actively consider how children and vulnerable witnesses may be protected when giving evidence in family proceedings’ (para 4.151). The concept of using the court itself as an intermediary was suggested by Baroness Hale in Re W (para [28]). While controlling the questioning and acting in an interventionist manner may suit a judge within the ‘quasi-inquisitorial’ jurisdiction of family proceedings, a judge will ordinarily lack the expertise of a RI. Other practical measures where an intermediary cannot be obtained include: pre-trial familiarisation of the courtroom, taking regular breaks, allowing evidence by videolink or from behind a screen, and having a Ground Rules hearing. ‘The Advocate’s Gateway’ (see www.theadvocatesgateway.org and P Cooper, ‘The Family Advocate’s Gateway to best practice for vulnerable witnesses’ [2013] Fam Law 1463) provides guidance and ‘toolkits’ for advocates and judges designed to tackle issues arising with vulnerable witnesses. The importance of having a planned strategy – rather than an ad-hoc approach – is vital. In Re M (A Child) [2012] EWCA Civ 1905, a psychological report on the father opined his capacity to give evidence had deteriorated due to the stress and anxiety of proceedings, necessitating the use of a ‘supporter/intermediary’. The judge refused an adjournment to obtain an
intermediary, adopting instead a ‘ “let’s see how we get on” management policy’. The father successfully appealed against findings that he caused injuries to his 18-month-old daughter. The trial judge’s approach was criticised by the Court of Appeal. Thorpe LJ stated: ‘… that general duty [of case management and avoiding delay] cannot in any circumstances override the duty to ensure that any litigant . . . receives a fair trial and is guaranteed what support is necessary to compensate for disability’ (para [21]).
Funding There is no clear mechanism for obtaining funding. In a recent High Court case in which one of the authors was involved, two parties and three interveners required intermediaries. The LSC (as it then was) refused funding as they argued intermediaries were not providing representation, but allowing those individuals to engage with the court process. Funding, they said, should be sought from HMCTS. HMCTS refused. At the judge’s request, an LSC senior legal adviser attended Court. He distinguished between using an intermediary in conference and at court. The LSC conceded that if the parties’ representative satisfied the Commission that they were unable to communicate satisfactorily with their client, an intermediary for use in conferences would be funded. For assistance at court, the LSC considered that upon submission of a detailed application with relevant dates, the Ministry of Justice (MoJ) was likely to take the view that such costs will be payable by HMCTS. The Family Justice Policy Department at the MoJ confirmed that HMCTS would pay for witness intermediaries ‘in this case’. The order gave permission for the representatives of the relevant parties to ‘instruct an appropriate agency to provide interpreting services . . . for the purposes of 1st Respondent’s evidence and for the purposes of interpreting the evidence of others . . . The costs are to be borne by HMCTS …’. This approach is not without its difficulties – not least as the Registered Intermediary Procedural Guidance Manual (MoJ, February 2012) states that an RI is not an interpreter.
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more interventionist than usual to prevent unfairness by controlling the questioning, ensuring the defendant did not become stressed, and playing the role of the intermediary (para [22]). The Court of Appeal held that the defendant’s trial in those circumstances had been fair.
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However it provides a possible solution in the absence of a coherent statutory framework.
Challenges once an intermediary is secured The need to ensure a fair hearing goes beyond identifying and securing special measures. As set out above, RIs are only available for vulnerable witnesses in criminal courts. Concerns about standards of non-registered intermediaries were raised in Dr Penny Cooper’s 2011 Registered Intermediary Survey (‘Tell Me What’s Happening 3: Registered Intermediary Survey 2011’, City University 2012). Use of an unqualified, inexperienced or unregulated intermediary has implications for the Art 6 rights of all those involved, including potential for misunderstanding of questions and/or answers and ‘skewing’ of evidence. The court’s ability to ‘get at the truth’ may be obfuscated.
Role of the advocates and the court Once a suitably qualified intermediary is instructed, ground rules and any other special measures agreed, it must be the duty of the judge and advocates to ensure that such measures are effective and the hearing remains fair throughout. Dr Cooper’s 2011 Survey found that Ground Rules Hearings were taking place in 76% of criminal trials with intermediaries, but 3/4 of respondents reported breaches in all or most trials and 19 respondents said they had been the first to point out the breach. Dr Cooper emphasised that the ‘setting and enforcing of appropriate Ground Rules for vulnerable witnesses is key to getting complete, accurate and coherent communication’ and proposes the Bar Code of Conduct should require counsel to stay ‘within ground rules’ when questioning a vulnerable witness or defendant (p 13). In the criminal case of Wills v R [2011] EWCA Crim 1938 there was no intermediary. The defendant appealed his conviction following a trial where his counsel adhered to the agreed ground rules but counsel for the co-defendant repeatedly breached them. The Court of Appeal dismissed the appeal, considering that the
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actions of counsel for the co-defendant did not lead to unfairness, and any unfairness was in any event dealt with by the judge’s direction to the jury (para [35]). However, the Court of Appeal was clear there is a duty on the judge to ensure any limitations on the advocates are complied with. Limitations must be clearly defined, using a practice note or protocol drafted for use by advocates and the judge, for example (para [37]). Active judicial intervention may prevent breaches occurring, and advocates and intermediaries should be alert to such breaches. Further, a judge may wish to consider whether a breach of ground rules has resulted in unfairness to any party. Adequate training for lawyers on questioning vulnerable witnesses, is crucial. The Advocate’s Gateway offers toolkits on this and the Bar Council has encouraged the creation of a ‘required training programme’.
Re A: a case study Re A (Vulnerable Witness: Fact Finding) [2013] EWHC 2124 (Fam), [2014] 1 FLR (forthcoming) provides a useful example of the family court grappling with these issues. This was a fact-finding hearing in private law proceedings, involving allegations of serious sexual abuse made by a young vulnerable woman ‘X’ against the father of ‘A’ (the subject child). Pauffley J had previously ruled on whether X – who had never given a statement nor participated in an ABE interview – would give evidence (Re A (Vulnerable Witness) [2013] EWHC 1694, [2013] 2 FLR (forthcoming)). Pauffley J had the benefit of detailed medical and psychiatric evidence of the impact on X of giving evidence. The guardian’s legal team identified Communicourt (an agency specialising in intermediary services) and the intermediary Naomi Mason. She proposed three meetings with X prior to the fact-finding hearing (as well as ‘rapport-building meetings’) and suggested a ground rules hearing (paras 21–22). Albeit that X was no longer a child, given her frailty and vulnerability, Pauffley J had regard to the guidance in Re W. Pauffley J held that ‘the balance comes down decisively in favour of striving to devise a set of circumstances in which X can be assisted to make a personal contribution to the hearing in some form or
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about X’s presentation not content of her evidence (paras [61]–[62]). Pauffley J was satisfied with the explanation and it appears no advocate pursued the point. Pauffley J concluded that X’s claims against F ‘are fundamentally true’ and that he had ‘inflicted the most serious kind of sexual, emotional and psychological abuse upon her over a period of about 10 years . . . continues to exert some form of sinister controlling influence so that X cannot speak freely about what happened’ (para [69]).
Analysis Re A starkly illustrates how an intermediary’s assistance enabled a witness to assist the court with serious allegations which impacted the Art 8 rights of X, the parents and the child. Safeguards for the father’s Art 6 rights were: • •
X giving evidence at all (rather than the court relying on a large body of contemporaneous hearsay evidence); Obtaining representation for the father to cross examine X (albeit prematurely curtailed); and (after the event) clarifying whether the use of an intermediary had caused X to alter her evidence in any way.
Of course, the mother and A’s Art 6 rights also had to be balanced. The curtailment of X’s evidence under cross examination, Father’s exclusion from the courtroom and the opportunity for ‘private exchanges’ show the challenges with vulnerable witnesses giving evidence, and the difficult balancing act between article 6 rights of all parties and the welfare of the witness that the courts will have to face. However the case also demonstrates the important role an experienced and skilled intermediary played in allowing the court to fulfill “the court’s only concern in family proceedings . . . to get at the truth’ (Baroness Hale, Re A [2013] 1 FLR 948, at para [36]). The truth must be sought using whatever reasonable means are consistent with, but not at the cost of, the Art 6 rights of all parties. The steps taken in Re A appear to have achieved a sensible balance.
Conclusion Re A makes plain the need for witness intermediaries in appropriate cases. There will inevitably be increasing calls for
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another’ (para [31]), using the services of Ms Mason. X’s participation was to be kept under constant review. It appears that there was a ground rules report and hearing prior to the fact-finding. One significant rule was that the father would not be able to see X’s face. At the fact-finding, X gave evidence by videolink, assisted by Ms Mason who the judge described as ‘impressive and dedicated . . . a registered Intermediary with considerable experience of vulnerable witnesses . . . (para [5]). The father was not eligible for legal aid but, to avoid the possibility of him cross examining X or her mother directly, the local authority (interveners) agreed to fund his representation on specific days. The judge allowed a number of occasions where, during X’s evidence, the video-link was broken to allow her to confer privately with Ms Mason (para [25]).On occasion, when the link resumed, Ms Mason relayed X’s response to a question by referring to information on a white board and asking X to confirm the information written thereon. Ms Mason also made suggestions as to particular ‘open’ questions which X could answer (para [26]). Another difficulty arose when the father, who had been seated in court so he could hear but not see the videolink of X’s evidence attempted twice to see the screen. The effect of this ground rule breach was that X was said to be shocked and upset, and felt unable to carry on. The judge considered that the father should leave the courtroom but have access to the typewritten notes of junior counsel. X agreed to continue but became so distressed during cross examination by the father’s counsel, that the judge considered it ‘inhuman’ (para [38]) to require her to continue and curtailed the cross examination, stating ‘I’ve never before encountered a witness in such evident and recurring distress’ (para [39]). Counsel for the local authority observed in a supplementary written submission that the private exchanges between X and Ms Mason may be relevant to the findings and to X’s credibility and wondered whether X had changed, retracted or expanded upon her evidence during those exchanges (para [59]). Pauffley J made enquiries of Ms Mason, who was clear that X had not changed, retracted or expanded on her oral evidence during the private exchanges and that any discussions were
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statutory provision of RIs for vulnerable witnesses in family proceedings. It will only be through availability of qualified and regulated provision of intermediaries
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that the courts can effectively manage proceedings to uphold the Art 6 rights of all those involved.
