Oliver Latham and Celine Kart discuss guidance given on the use of participation directions in family proceedings from the recent cases of Re S [2022] and Re M [2021]

Participation Directions and Lessons from the Higher Courts: Re S (Vulnerable Party: Fairness of Proceedings) [2022] and Re M (A Child) [2021]

The High Court (Family Division) and Court of Appeal (Civil Division) have ruled on two important decisions regarding the use of participation directions (special measures) in family proceedings. Oliver Latham, barrister, and Celine Kart, pupil barrister, discuss.

S (Vulnerable Party: Fairness Of Proceedings) [2022] EWCA Civ 8

(18 January 2022)

Summary

The Court determined that a failure to identify A’s cognitive difficulties and to make appropriate participation directions to ensure that ‘the quality of her evidence had not been diminished as a result of vulnerability amounted to a serious procedural irregularity’ [§44] and that, as a result, the outcome of the hearing had been unjust.

Background

The Appeal arose from a fact-finding hearing in care proceedings involving S, a girl aged 6-and-a-half. The case concerned injuries sustained by another child, J, aged 5-and-a-half, who was not a subject to the proceedings. At the conclusion of the hearing, HHJ Nisa found that most of J’s injuries had been sustained accidentally but some had been inflicted by J’s mother, A, who had been joined as an intervenor to the proceedings concerning S. A appealed against the findings made against her.

The Appeal

A appealed on six grounds, including that her cognitive issues had not been considered by the Judge and adjustments had not been made to ensure her fair participation in the trial.

A’s solicitors then filed an application for permission to amend the Grounds of Appeal by adding a new ground based on procedural irregularity/unfairness:

“The appellant has cognitive difficulties which were unidentified. Dr Josling [a forensic psychologist] has assessed that the appellant may be assisted by an intermediary and an appointment with Communicourt for assessment is due to take place on 18 November 2021. The court made findings against the appellant in proceedings where the appellant’s cognitive issues were not considered or adjustments made to ensure her fair participation. The findings are therefore unsafe.” [§22]

Permission was sought to file a redacted cognitive and psychological assessment of A and an intermediary assessment from Communicourt once that became available, together with an amended skeleton argument. These various applications were listed for determination at the hearing of the Appeal.

A attended an assessment meeting with an intermediary employed by Communicourt the day before the Appeal. An email was received by A’s solicitors from Communicourt recommending an intermediary for A, noting her difficulties with:

• processing long sentences
• understanding court specific terminology
• understanding and responding to complex grammatical structures
• understanding complex vocabulary
• processing simple verbal information
• remembering key dates, and often gets the detailed confused. [§25]

The Court granted permission to the Appellant to amend her Grounds of Appeal and to adduce evidence relating to her cognitive difficulties, and allowed the Appeal without considering the remaining Grounds of Appeal for which permission had already been granted. The case was remitted to the Family Division to decide whether there should be a rehearing of the fact-finding hearing as to the cause of the appellant’s son’s injuries and, if so, to allocate the proceedings and the hearings as the Judge saw fit.

Decision

The Court allowed the Appeal. Baker LJ explicitly stated how the ‘courts and tribunals across the English and Welsh legal system have recognised the need to make due provision for vulnerable persons to participate in proceedings.’ [§30]

In considering its decision, the court gave consideration to Part 3A of the Family Procedure Rules, ‘Vulnerable Persons: Participation in Proceedings and Giving Evidence’, introduced in 2017 and supplemented by Practice Direction 3AA (PD3AA). And in particular noted that ‘These comprehensive provisions are of fundamental importance to the administration of family justice.’ [§38] The significance of fair and proper participation in proceedings was further emphasised at [§39].

At [§41], referencing King LJ in Re N (A Child) [2019] EWCA Civ 1997, the Court considered in its judgment the weight to be placed on the FPR and PDs:

“Part 3A and its accompanying Practice Direction provide a specific structure designed to give effective access to the court, and to ensure a fair trial for those people who fall into the category of vulnerable witness. A wholesale failure to apply the Part 3 procedure to a vulnerable witness must, in my mind, make it highly likely that the resulting trial will be judged to have been unfair.” [§53]

The Court warned that ‘It does not follow, however, that a failure to comply with these provisions, whether through oversight or inadvertence, will invariably lead to a successful appeal.’ [§42]. The Court specifically noted that, had A’s vulnerability been identified, a Ground Rules Hearing would have occurred. The question on Appeal would be: 1) whether there had been a serious procedural or other irregularity and, 2) if so, whether as a result the decision was unjust [§42].

The Court held, allowing the Appeal, that the failure to identify A’s cognitive difficulties and to make appropriate participation directions to ensure that ‘the quality of her evidence had not been diminished as a result of vulnerability amounted to a serious procedural irregularity’ [§44] and that, as a result, the outcome of the hearing had been unjust. The case was remitted to the Family Division to decide whether there should be a rehearing of the fact-finding hearing.

M (A Child) [2021] EWHC 3225 (Fam)

(01 December 2021)

Summary

This case represents the first opportunity for the Family Court to consider the implications of the new vulnerability provisions for victims (and notably also alleged victims) of domestic abuse, now given a statutory footing by virtue of section 63 of Domestic Abuse Act 2021 (as reflected in Practice Direction 3A.2A). The duty to consider this provision applies to all advocates, regardless of who they are representing, and a failure to do so is likely to be good grounds for a successful appeal. The Court reiterates the need to list a separate Ground Rules hearing before any trial, to allow submissions to be made on relevant special measures.

Background to the case

The case concerned allegations of rape and domestic abuse in the context of private law proceedings. The parents met during the course of the mother’s employment as a “cam girl”, providing sexual services via the internet. There was a large amount of video footage relied on which showed intimate and explicit aspects of the parent’s sexual relationship. The issue of vulnerability was not raised, nor was the need for a Ground Rules Hearing raised by counsel. The requirement for parents to attend Court on different days was due to Covid-19 rather than being a special measure arising from vulnerabilities [59].

Grounds of appeal

These were twofold: firstly, that the court had failed to properly consider and apply the provisions of Practice Direction 3AA (vulnerability) and Rule 3A. This was, in effect, a procedural irregularity argument. The second ground was more substantive: that the judge had not properly weighed matters, taking into account the identified vulnerability of the complainant mother. For the appellant mother therefore, vulnerability carried both a procedural and substantive significance.

Decision

The appeal was successful on both grounds.

Ground 1

Beginning with the procedural argument, the most pertinent point here was that the vulnerability provisions are mandatory provisions, which “must” be adhered to, and the obligation to adhere to them ultimately rests with the court. The court is not excused from considering them simply because the matter is not raised by advocates, as was the case in M [§62].

The second point to note, and it is one that is echoed by the Court of Appeal in Re S that is considered above, is that the higher courts will expect a Ground Rules Hearing to be properly convened so that all parties turn their minds properly to any appropriate special measures in light of any expert or other evidence regarding an individual parties’ vulnerabilities. In considering what participation directions are required, the test in Re M was whether the quality of the evidence would be diminished [§66]. This is slightly different to the need to ensure a fair trial which was integral to the successful appeal in Re S.

The Court finished its determination on Ground 1 with a “stark reminder” that it is the obligation of all before the Court to raise vulnerability issues without delay to ensure that the need for a Ground Rules Hearing can be considered and timetabled if necessary

Ground 2

It is noteworthy that the decision in relation to the substantive aspect of the appeal apparently flowed from similar considerations to Ground 1: the mother’s vulnerability was not properly considered in the High Court’s view when the evidence was balanced. In particular, the possibility that the mother’s vulnerability had led to her being overdependent in her relationship with the father was not adequately analysed [§80, 81]. The fixation on issues of capacity and consent in analysing the rape charge that was also criticised [at §82] echoes in many ways the observations in the now well-known and oft cited case of Re HN [2021] EWCA Civ 448 that criminal concepts are not to be allowed to constrain or infect the more holistic enquiry into domestic abuse that is called for in children act proceedings (“abusive behaviour in the wider sense”).

Analysis

This decision calls not only for a re-conceptualisation of abusive behaviour in its widest sense, a point that has already been made in Re HN, but an appreciation of vulnerability in a wider sense as well. The case signals the need for a culture shift away from a narrow conceptualisation of vulnerability, which ignores the adverse impact that litigating allegations of domestic abuse and rape has on complainants. These are not new issues and they are ones that will already be very familiar to practitioners in the Criminal Courts: the Family Court needs to keep pace. It is well documented that the stress of being cross examined on intimate aspects of one’s personal life has a potential chilling effect on the willingness of complainants of abuse to come forward, as well as the quality of their evidence as M itself acknowledges.

An interesting point to note is the submission made by counsel for the father that the High Court came close to applying a test of strict liability. The important point here is that vulnerability takes many forms and the reactions of those who are abused (or allege abuse) cannot be fitted into a straitjacket in which their reactions to the court process are used to judge whether or not the process has been unfair to them or not. That is of course not how procedural fairness works.

Postscript: Practice Direction PD3A.2A

This article finishes with a few words regarding the new procedural rules now in place. Whilst Practice Direction 3AA that was applied by the court in Re M is mandatory in nature, the terms of the new PD3A.2A are slightly different, reflecting as they do the language of section 63 of the 2021 Act.

The new provisions establish a starting point, or “assumption” that those who are at risk of, or who have suffered, domestic abuse from a party, a relative of a party or a witness in the proceedings require participation directions in order to ensure the quality of their evidence and/or their participation is not diminished. That assumption can effectively be waived by the victim, which must be right as otherwise the court would be invited to make assumptions about the victims own vulnerability without them having the opportunity to explain their own personal impact.

Conclusion

What do these cases mean for the future use of participation directions within the Family Division?

The decision in Re M signals a need for a cultural shift at the family bar towards greater recognition of the relationship between domestic abuse allegations and vulnerability, which has now been given statutory prominence as a result of section 63 of the 2021 Act. There is no longer, if there ever was, a place for narrow conceptions of vulnerability within the family justice system.

Re S has reiterated a strong message to advocates and the judiciary: that the use of intermediaries should be freely accommodated and prioritised as a matter of fairness to both procedure and participation of parties. One can therefore infer that the increased use of intermediaries will be seen within proceedings, as a safeguard against unfairness; if nothing else.