Crucial Participation Directions Update 2021

Hello. Good afternoon everybody Welcome to today's bites. I session through data law. My name's Safta Mahmoud, um a solicitor and a lecturer and today I'm going to be speaking to you about the matter surrounding participation, directions and special measures in family cases. Just to bring up to speed with what the current position is in so far as this is concerned. So we're looking at what these are. Hard participation directions and special measures work in family cases. Well look, see what the changes are and how we need to bear these in mind. In particular regard to some of the changes that we've had brought in as a result of the domestic abuse act of 2021 when it comes to participation In family proceedings. So I'm looking at law and practice as of October 2021 and I've also acknowledged crown copyright and also defuse corporate author in relation to the references throughout this session. So what I want to start within these days when we're dealing with family cases, whether it's domestic abuse matters, whether Children matters, private, public finances and even matters related to divorce. We need to of course bear in mind the issue of participation special measures as we often used to refer to these. So when you're supporting parties and witnesses very very important to be clear about what forms of participation do I need to ensure that my client is able to be able to then have a voice and then to be able to participate whether by way of when to give evidence or actually participating in the proceedings as a witness. So this can incorporate as a number of things. For example, if it's a case where your client is concerned about domestic abuse, for example perpetrated term or at the risk of being perpetration by the respondent. For example, then you need to think about screens, maybe screens being provided at court to prevent the alleged victim being seen by the alleged perpetrator, for example, separate waiting areas at court. We may need to think about that. For example, how about a separate entrance and exit to the court building? For example, sometimes you may find that that may be necessary in these circumstances. And then we're looking at some of the other aspects participation remotely, whether it's the video link, increasingly zoom M. S. Teams and some of the other methods And as you know, since the onset of the COVID pandemic from a March 2020, as you know, many of our core hearings have been handled remotely and therefore because of that, what you're finding is there's been a lot of reports put together by many of you wonder about the Nuffield report by the Family Law Observatory which had been commissioned by the President of Family Division and one of the key aspects that was identified was that because a lot of us are now doing the hearings remotely and will continue to do so in the foreseeable future. And if you've got, say your client, whether it's a witness or a party who is then got their camera on, then of course we need to bear in mind that if the opponent who is the respondent who allegedly has been abusive or at risk of being abusive to them can see them that couldn't be undermining that can be a minute. That can actually undermine their confidence and not only seeing them, but what about seeing their background? For example, seeing their house, it's those kind of things you got to think about. So are you going to be asking to call for example permission for your client not to have their command for example, And therefore that itself other type of things we need to be thinking about, for example, And also do you need an interpreter court? Do you need a translator in those circumstances? And increasingly we're making more use of intermediaries and lay advocates. So an intermediary may be instructed where he or she would assist in the process of communication in court. So for example, if say you got mother would learning disabilities for example, and she has been assessed by say psychologist who has said that she does have learned disabilities and would then benefit from an intermediary who would then assist her to enable her to participate in court and giving evidence. So that if I for example was putting questions to mother during cross examination for example, the intermediary would be in a better position than I am perhaps to then be able to rephrase that question in a way where it's much more easier to mother to understand the question and then to be able to give her response. Similarly when she is giving her response in those circumstances, the intermediate intermediate will be able to facilitate the process of doing that the way in which she gives those answers to court and also making sure there's for example adequate breaks, making sure that she can participate in other ways. So some of you will be aware that sometimes we have the traffic light approach for example, if somebody wants to but to give a particular answer may use different teachers for example, different traffic light signals to be able to identify. So it's those kind of things we need to be thinking about and then there's all sort of lay advocate. So sometimes it may be that it's not just the communication participation in the courtroom itself, but also in the process. So when for example, we have in conferences with the with our client in the court building at our office is part of the assessments. For example, I've been done. That's where you may have lay advocates who had been appointed with the future, assisting and facilitating the process of communication and understanding and that's why it's very, very important. I would suggest that we give regard to first and foremost, making sure that we're familiar with the various forms of participation that may be needed. And secondly, making sure that for our respective clients that support is made available can be made available so as to enable them to participate with witnesses and all parties and like I say to ensure they have that voice. So a lot of distant ties in with the participation directions which which have been provided for in part three A and practice three. Practice direction three A with supplements part three of the family procedurals and these then came Into effect as specific practice directions back in November 2019 some of you will remember so obviously really really important in that regard. So just on that point a few practice points that I wish to pick upon at this stage and what is when you are then drafting participation directions in the child arrangements program. The cap form in private Children or cases and the case management order to CMR in public law cases, I would suggest it's very important to make it clear therefore as to what participation directions are being provided and of course you need to think about this and domestic abuse cases, whether it's anomalous station, whether it's occupation order proceeding so it's clear on the order as to what participation directions are being provided. Also, I would suggest when you are instructing experts make it very clear when you're doing your letter of instruction to the psychologist or psychiatrist if they are going to be recommending participation for declined by way of either a intermediary or lay advocate for them to explain why it's one person who recommended and not the other in that regard. So again, so you're clear as to why that is. And therefore ensuring that the necessary level of support is then made available for your client in that regard and staying with that. There was there was this really useful guidance that came out a few years ago which was put together by the then President of Family divisions that James Mamby put the link there for you. And this was the guidance given to family courts in relation to the position for payment for special measures and in particular the position surrounding court ordered measures including the cost of intermediaries and intermediary assessments in that regard. And one of the things that his lordship did emphasis in this guidance was that when it came to intermediary assessments in that regard and all sort of provision of intermediaries, his lordship did say that there is no statutory requirement for H. M. CTS to fund an intermediate intermediate assessment in family proceedings. There's no statutory requirement to do so. However, it appears to court that this is really the only way a party or witness can properly participate in the proceedings or the question for example. And therefore as I mentioned sort of situations to enable them to participate to be able to book questions to be able to answer questions to be able to understand the process. Then the court can in those circumstances order that there should be an assessment to determine the nature of the support that they may be needed through an intermediary in the courtroom. And also the position of funding court can make provision for that in survival type of support and what the position is with funding and hmCS will provide funding is if there is no other alternate resource of funding and staying with that, his lordship decide. Our intermediaries are usually appointed to support vulnerable witnesses or parties to participate in or therefore to obviously understand the proceedings in the courtroom and if necessary. HmCS will fund the cost of willing to immediately to assist with that process outside the courtroom, but only if this is directly relevant to matters which are gonna be dealt with in the courtroom and there is a judicial order, so it's got to be an auditor. That effects are very important. But one of the things that his lordship did emphasis in this guidance was that hmCS is not able to fund the general provisional intermediaries outside the courtroom. It's important to bear that in mind and that's where you should be referring to the legal agency for authorization by worth seeking private authority, I would suggest. And this was also emphasized by the President Sir James Mumbi in the case of in a matter of d a child number two Back in 2015, whereby in that judgment, his lordship did say Paragraph 17 that the cost of an intermediary in court forced upon the her majesty's courts and tribunals service because as a legal aid agency said, an intermediary is not a form of representation, but rather uh the intermediary is somebody who is then being utilized to enable the litigant to communicate effectively with the court and therefore the intermediary is analogous to translation and hence the translator and interpreter in that regard. And therefore if you need an intermediary within the court room, then that should be paid for by h M C T s just like the court would then make provision for translate, intermediate or interpretive within the actual court room itself. What were the services of intermedia required other otherwise, I'm doing a court hearing and the cost does actually fall on legal aid agency. And the cost of obtaining a report from an expert as to capacity and competence or the extent of special measures, as opposed to the cost of providing the services of intermediary also fall on a legal aid agency. How many of you will know that in September 2020, we had the experts remuneration guidance which was updated by the legal aid agency. Volume six would specifically incorporates the position surrounding not just intermediaries, but all sort of position with lay advocates and that's largely because of not only this case, a reedy A child #2. Another case law authorities, but also this more recent decision of we see lay advocates and we see the advocates number two, This was a decision handed down by Mr Justice Kagan Initially in December 2019 and this was a case involving care proceedings whereby there was a recommendation for a lay advocate for the parents in this case, both of them had learning disabilities and his lordship. This question as to whether the assistance that the parents need to understand and communicate could be provided by the solicitors and his Lordship said that one very busy, publicly funded listers simply wouldn't have the time to be able to devote to spending as much time as was required for the parents in this situation, in helping them to understand the process, the assessments and their statements. But secondly, the lawyers wouldn't necessarily have the expertise and therefore, his lordship did say that the cost of delay advocates should fall upon h M c T s to make Provision for. But then when that case went back, as we see lay advocates number two In 2020 and therefore last year the position which was dealt with by agreement was that delay advocates are kin to intermediaries in that regard, so therefore we've intermediary is required within the court room itself to enable communication, then that could be paid for by the court service. But if the lay advocate is required in the court building or maybe at the offices or part of the assessment process, then it's not the court that should ordinarily been providing for that. But instead one should be applied to legal aid agency for authorization by where private authority for the cost of that. And like I say that provision has now been written within the Experts Remuneration Guidance of September 2020. So I have a look at that when you get the chance. What I wanted to also look at today, that is the position with the changes to special measures as a result of a domestic abuse Act of 2021. So you'll be aware that when this act was going through Parliament as a bill, the intention by the government was fully sacked when he got royal assent to change the legislative framework so as to provide for automatic eligibility for special measures in domestic abuse cases and then for effectively removing the burden upon the victim to have to prove that the iron fear or distress with a view to again then getting special measures provided for them. So there was this policy paper of March last year which really emphasized this and what it was emphasizing at that stage was that victims of domestic abuse will automatically under this new legislation be able to get special measures to help them to give evidence for example, in criminal cases and also have been suggesting family cases without them having to satisfy to fear or distress test in that regard. And like the same particular in family cases then the court the under duty was felt to consider whether parties and witnesses were vulnerable and then you take into account, so that was the position with the bill and the policy paper. And this would therefore be relevant As when of course the the actor then got royal assent when the act did get royal assent on 29 April this year. And this particular provision is written within Section 63 of the domestic abuse of 2021. And that now sets out the fact that the court is to make a special measures direction relation to person who's a part of your the season family proceedings. So it's a specific reference to that. But how has it changed what we've had before were previously one had to show vulnerability. Wanted to show that they because of the nature of the circumstances, they were fair, they were fearful ah of doing percussions, for example. So they would have to show that they would then Need to demonstrate that test with a view to get him under support and needed in cases involving domestic abuse. But now section 63 subsections three provides this. It provides that weird person is or at risk of being a victim of abuse carried out by party to proceedings, relative or witness in proceedings. Then it is assumed now that the following applies and that is the following match. Is our regard has been diminished by reason of their vulnerability and that is the quality of the evidence. It is assumed will be affected because of the reason of vulnerability. And secondly, where a person is a party, the participation it is assumed will be affected. So this means that there is now this automatic entitlement to special measures in cases where there are concerns us to risk of domestic abuse. So this was something that was picked up also recently in the domestic abuse draft statutory guidance framework six August where again that guidance was saying that the act provides for special measures in family proceedings so as to enable this automatic entitlement of victims in these situations and therefore the idea that it is assumed that the quality of the victims evidence will be affected and their participation is like to be diminished as his alternative vulnerability. So where do we therefore stand? Well, this is not a position. So recently then We've had practice direction three a which relates to vulnerable persons, which has now been amended. So now this has been amended recently to provide this. So you've got a new rule 3.28, which provides that follows it now states that there is the assumption that way it stays up particle witnesses a victim of domestic abuse or is at risk of being the victim of domestic abuse carried out by party relative or another party or witness. They are now assumed to be vulnerable. So you don't need to demonstrate evidence that they are vulnerable to assume that that they are okay, So that has not been written into Into legislation that's been brought in by domestic abuse Act Section 63. And it's been written into the practice directions as well. So therefore this goes further and now provides that where the assumption does apply court muslim, consider what's necessary then to make the participation directions and if so, of course, and they'll decide which ones to make in those circumstances. So that's the key provision that's been brought in and where it provides that way With 3 8.7 prefers to questions or abuse. This includes any concerns of eyes in relation to various matters. So what kind of allegations all matters of abuse are they would have, to me is the person is a victim of domestic abuse was a risk of? Well, it's very wide and it incorporates all of these various elements here. So includes domestic abuse in itself, which incorporates within its sexual abuse, physical emotional abuse, racial and or cultural abuse of discrimination as it relates to force module on a based violence if it relates to that female genital or the physical mutilation abuse or discrimination based on that person's gender, sexual orientation and also human trafficking. So, you can see these are the various elements of abuse that are referred to for the purposes of them bringing into play. That provision of the assumption of vulnerability in those cases. So the net effect of that then, is that way it is stated in that part of your witnesses, a victim of domestic abuse or is a witness where there's a risk of being a victim of domestic abuse counter by state parties. And as I mentioned, are now automatically assumed For the purpose of part three A and also practice direction 3 8 we regard as fun of and therefore here it of course, should not be going on and dealing with whatever participation directions make be required in the circumstances. That's the kind of thinking behind this. And you can see that this was really necessary to be brought and you can see the the thinking behind this And in particular paragraph 5.2 provides that where the court has decided that vulnerable party federal witness or party protected should give evidence, then there should be a ground roots hearing Provided, which takes place by 20 hearing at which evidence is heard. Okay? And I said that hearing, the court should then be looking at the conduct of the advocates and the parties in respect of that evidence and to put also any necessary supporting place. So you should be having a grand juries hearing before the main substantive hearing. In many cases, having said that doesn't need to be a separate hearing to any other hearing in the proceedings. So, what I would suggest is if you're in private Children law cases, for example, the matter is listed for finding a fact hearing to determine allegations of domestic abuse, then it's very important to make sure that the preliminary hearing before the finding of fact hearing, which could be directions hearing. There should be elements of ground rules within that. It may even be actually listed for just a grand who was hearing. And that's where you need to be looking at the way in which the case where actually dealt with. So what special measures, what participation directions need to be put in place? How is one going to be testing the evidence for example? So paragraph 5.2 of practice record 3 8 wise that to be considered and put into effect as well. So you consider the thinking behind that. Okay, so that brings this session to an end. So you can see obviously participation directions obviously and special measures obviously very, very important family proceedings. And you can see some of the recent case law authorities on that and the guidance we've got as well as the more recent changes brought about As a result of the domestic abuse Act of 2021. And I thank you very much indeed for listening. I hope that's been useful session for you and I'll speak to you next time. Thank you very much indeed. Bye for now.