Family law report on vulnerable witnesses

Baljit Bains has considered Re S (Vulnerable Party: Fairness of Proceedings) [2022] EWCA Civ 8 and the court’s duty to identify any party or witness who is a vulnerable person.

A, who was an intervenor in care proceedings, sought to appeal findings made against her of physical harm to her child.  The case concerned care proceedings relating to a child, S. The main issue in proceedings related to injuries sustained by another child, J while in the care of S's parents. At first instance, the judge hearing the case concluded that J's injuries were partly accidental and partly inflicted by his own mother, A.

Permission to appeal was allowed to be brought on a ground of procedural unfairness. A argued that the court had made findings against her which exceeded those sought in the schedule, without any reason for doing so. She argued that she 'has had significant findings made against her in proceedings not related to the welfare of her child and in which no relevant social worker evidence was produced.' She further argued that court had not taken account of her cognitive difficulties, and had not considered adjustments which might be required to ensure her participation, which may have been assisted by the use of an intermediary.

. The court of appeal allowed the appeal on the basis that –

• Paragraph 1.3 PD3AA FPR 2010 and overriding objective provisions Pt 1 meant there was a duty to identify a party or witness who was a vulnerable person ‘at the earliest possible stage’;

• PD12A requires the court to consider the need for directions as to special measures and intermediaries at the initial case management hearing (and throughout proceedings);

• All parties and representatives have a duty to identify ANY party or witness who was a vulnerable person and assist the court in ensuring they could participate without quality of their evidence being diminished;

• Failure to comply with ground rules/participation directions would not invariably lead to a successful appeal. The question on appeal in each case would be (i) whether there had been a serious procedural or other irregularity and (ii) whether as a result the decision had been unjust;

• The failure to identify the intervener’s cognitive difficulties and make appropriate participation directions to ensure the quality of her evidence was not diminished as a result of vulnerability amounted to a serious procedural irregularity and the outcome of the hearing had been unjust. In this case, the judge’s assessment of the intervener’s character and plausibility had been central to her ultimate findings. There was a significant possibility that the judge’s evaluation of the evidence she had heard would have been revised by the knowledge that A had difficulties of comprehension. Appeal allowed.

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