Funding implications for vulnerable witnesses and children in the family courts deserve closer inspection
Women’s Aid has expressed deep concern about the lack of protection for victims of domestic violence in family courts, especially where their alleged abusers are permitted to cross-examine them, although the wider problems of such vulnerable witnesses (including children) in family cases go much deeper than this.
On 30 December 2016, Sir James Munby, President of the Family Division, released a statement articulating ‘the pressing need to reform the way in which vulnerable people give evidence in family proceedings’. Family justice, he said, ‘lags woefully behind the criminal justice system’.
The problem arises where an alleged abuser (B: generally, though not invariably, male) personally cross-examines the victim (A) in (say) domestic violence proceedings, including, as the Guardian
has said, ‘tormenting’ her in court. This happened in H v L and R  EWHC 3099 (Fam)
, where a father (ie, B) wanted to cross-examine his child’s abused mother. Roderic Wood J ‘invite[d] urgent attention’ (para 25) to judges being given power to appoint a publicly funded advocate as under Youth Justice and Criminal Evidence Act 1999 (YJCEA) s38(4). Over 10 years later, under pressure from the press, the justice secretary, Liz Truss, has finally ordered a review.
In reality, however, the problem goes deeper than Truss’s review. In 2014, a working group was set up to consider generally the evidence of witnesses and parties (eg, in the position of A) where its quality might be ‘diminished’ in court. The Vulnerable Witnesses and Children Working Group produced draft rules in mid-2015 that owe much to the YJCEA, but still nothing has been formalised.
In criminal proceedings, a witness in A’s position is protected (YJCEA Pt 2 Ch 2). The court may – and sometimes must – provide protection by imposing an advocate to cross-examine a victim (YJCEA s38(4)).1See also David Burrows, Evidence in family proceedings, Family Law/LexisNexis, September 2016, ch 8.
The advocate has no ‘responsibility’ to the accused (YJCEA s38(5); Criminal Procedure Rules 2015 SI No 1490 Pt 23). The advocate is paid from public funds (YJCEA s40).
Resource implications and legal aid
In civil proceedings, though, the situation is less clear. Munby P’s December 2016 statement continues: judges in family proceedings cannot act because ‘it requires primary legislation and would involve public expenditure’. Supreme Court authority, however, casts doubt on this. Much can be done by judges under the common law, said Lady Hale in Re W (children) (abuse: oral evidence)  UKSC 12
(para 28), suggesting ‘an early video’d cross-examination … cross-examination via video link [or] putting the required questions to her through an intermediary’.
But what of funding?
If B’s cross-examination genuinely ‘diminishes’ A’s evidence and denies her a fair trial, her rights under European Convention on Human Rights article 6(1) are engaged. If legal aid is not available (ie, the case is outside Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) Sch 1 paras 11–13 (domestic violence etc)), A should apply for exceptional case funding (LASPO s10(3); R (Gudanaviciene and others) v Director of Legal Aid Casework and Lord Chancellor  EWCA Civ 1622
). Questions regarding resources can be addressed under the present law, whatever Munby P and Truss’s review say.
Witness/party protection and fair trial rights depend on:
•special measures (equivalent to YJCEA ss23–28 and per Re W at para 28) applicable in family proceedings; and
•A’s right to give evidence of a quality that is not ‘diminished’ (akin to YJCEA s16).
If this is right, A must be protected by special measures or an intermediary (eg a s38(4) advocate): is her trial fair without this? If the answer is ‘no’ then A’s fair trial rights are engaged and LASPO s10(3) may apply. Procedural issues then fall into two categories:
1the party/witness in A’s position, dealt with in H v L and R and the subject of Truss’s review; and
2the much wider group: the child or other vulnerable individual (per YJCEA ss16–17) whose evidence may be diminished and where YJCEA special measures are called for.
The solution to the issues in the second category (especially special measures) is proactive court case management. Category 1, meanwhile, represents the Truss review problem. Funding, however, is available – now – from an existing certificate (LASPO Sch 1 paras 11–13). If legal aid under LASPO Sch 1 paras 11–13 is not available, and this would result in the quality of A’s evidence being ‘diminished’ and a fair trial being threatened, article 6(1) is engaged and s10(3) may bite. Regardless of which category (above) the procedural issues fall under, can YJCEA s38(4) be applied by analogy in family proceedings? And, if so, can it be funded by legal aid?
With Criminal Procedure Rules 2015 Pt 23, s38(4) provides a model for court advocate appointment. B has a fair trial: his ‘accuser’ is professionally cross-examined. The following argument for a similar procedure in family proceedings could be tested in the Family Division, alongside Lady Hale’s comments in Re W at para 28:
•a High Court judge has inherent jurisdiction to regulate the court’s procedure;
•justice would be promoted (perhaps only made possible: operation of YJCEA Pt 2 readily attests to this) by a s38(4) appointment;
•this assistance cannot now be funded directly from public funds (cf YJCEA s40);
•with proactive case management, this can be done on a legal aid certificate (either under a conventional Sch 1, or a s10(3), certificate).