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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> S (Vulnerable Party: Fairness Of Proceedings) [2022] EWCA Civ 8 (18 January 2022) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2022/8.html Cite as: [2022] EWCA Civ 8 |
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2022] EWCA Civ 8 | ||
CIVIL
DIVISION)
ON APPEAL FROM THE FAMILY COURT AT GUILDFORD
HH Judge Nisa
GU20C00098
Strand, London, WC2A 2LL |
||
2022 |
B e f o r e :
LADY JUSTICE WHIPPLE
and
MR JUSTICE FRANCIS
____________________
| A |
Appellant |
|
| - and - |
||
| (1) A LOCAL AUTHORITY (2) X (3) Y (4) S (by her children' s guardian) |
Respondents | |
| |
||
S ( VULNERABLE PARTY: FAIRNESS OF PROCEEDINGS) |
____________________
Suzanne
Kelly (instructed by Venters) for the Appellant
Sally
Stone
QC (instructed by Local Authority
Solicitor)
for the First
Respondent
Poonam Bhari (instructed by Child Law Partnership) for the
Second
Respondent
The Third and Fourth
Respondents
were not present nor
represented.
Hearing date : 23 November 2021
____________________
Crown Copyright ©
Remote
hand-down: This judgment was handed down
remotely
at 10:30am on Tuesday 18 January
2022
by circulation to the
parties
or their
representatives
by email and by
release
to BAILII and the National Archives.
LORD JUSTICE BAKER ...giving the judgment of the Court):
proceedings
involving a girl,
S,
then aged 6½. The principal issue arising in the hearing was the cause of injuries
sustained
by another child, J, a boy then aged 5½ , who is not the
subject
of these
proceedings
but who became the focus of the
proceedings
because his injuries were
sustained
around the weekend of 18 to 19 January 2020 during which he
spent
a period of time in the care of
S's
mother X and father Y. At the conclusion of the hearing, HH Judge 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.
She
now appeals to this Court against the findings made against her.
S,
who had been
removed
from her parents' care, is living with family and is apparently thriving in their care. Meanwhile, in part as a
result
of the findings, the local authority has
started
further care
proceedings
in
respect
of J and his brother, although they
remain
at home under an interim
supervision
order. The future of all three children may therefore be affected
significantly
by the outcome of this appeal.
Background
subject
of an assessment by the local authority'
s
children'
s
services
as a
result
A'
s
misuse of ketamine. Concerns had also been raised about bruises and marks
seen
on the child at
school.
In the weeks leading up to the weekend of 18 to 19 January 2020, J
spent
periods in the care of X and Y, who were friends of A, although there was a dispute at the hearing as to how often this had occurred. In the days before the weekend, J attended
school,
where
staff
observed no marks on him. At about 4.30pm on
Saturday
18 January, A handed J over to X to
spend
the night and following day with X, Y and
S.
At the hearing, there was a dispute between the adults as to whether there had been any marks on J at this point, A
saying
that there had been no marks, X
saying
that there had been a mark on the
side
of his face. Over the next twenty-four hours, according to X and Y, various accidents occurred which they later
suggested
could have caused
some
of the marks
subsequently
seen
on J. For example, X alleged that J fell into a ditch while playing in woods and that he had hit a radiator after jumping on a bed. A number of text messages passed between A and X during this period which were adduced in evidence at the hearing. At about
8pm
on
Sunday
19 January, Y
returned
J to A'
s
home. It was A'
s
evidence that
she
then noticed an abrasion on his left forearm, although there were inconsistencies in her various accounts as to what
she
saw
and when. Later that evening,
she
texted X asking what had happened to J'
s
arm. In
reply,
X
said
she
had not
seen
anything.
s
evidence that, while getting J dressed for
school
the following morning,
she
noticed other marks and bruising on his face and body. It was her further evidence that, on her way to
school,
she
asked another friend whether
she
could
see
any marks on J'
s
face and that the friend
said
that it looked like a
slap
and advised her to contact
social
services.
At that point, A did not
say
anything to the
school
staff
about the marks. Instead,
she
went home and, as the judge found, forty minutes later telephoned her family
support
worker and then children'
s
services.
After that,
she
telephoned the
school
and, according to evidence from a member of
staff,
said
that J had been with friends over the weekend and that on his
return
she
had noted marks, and asked the
school
to log the marks. During the morning there were further phone calls and text messages between A and X.
s.47
of the Children Act 1989. A medical examination of J disclosed a total of twenty-three marks, bruises and abrasions, including a
series
of marks and abrasions on the left
side
of his face, amongst which were linear marks extending to his ear, a deep abrasion or burn on the left forearm, various bruises on his buttocks and thighs, and
some
superficial
abrasions on the front of his penis. The conclusion of the examining doctor was that at least
some
of the injuries were non-accidental.
stay
with grandparents but
returned
to A'
s
care after three weeks. X was arrested, interviewed and
released
on bail.
Subsequently,
the police decided to take no further action with
regard
to J'
s
injuries. Meanwhile,
S
had moved to live with a maternal aunt and, in June 2020, the local authority
started
these care
proceedings,
relying
in part on the injuries
sustained
by J as evidence that
S
was likely to
suffer
significant
harm in her parents' care. A
series
of case management hearings took place, in the course of which A was joined as an intervenor.
result
of X'
s
ill-health, extended over nine days in January and February 2021. The findings
sought
by the local authority
related
not only to the injuries
sustained
by J but also to other matters, including allegations of domestic abuse by Y towards X and A'
s
misuse of ketamine. At the outset of the hearing,
representations
were made on behalf of A as to the appropriateness of
seeking
findings about her care of J in
proceedings
which did not
relate
to him. The court was asked not to consider any allegations against A which went beyond the
single
question of identifying the person in whose care the injuries had occurred. The court
rejected
this argument and counsel acting for A made an application for permission to appeal that decision. That application was dismissed and has not been
renewed
before this Court.
proceeded
with oral evidence given by
seven
witnesses including X and A, but not Y, who
refused
to attend most of the hearing. At the conclusion of the evidence, the hearing was adjourned for written
submissions.
Judgment was handed down on 1 March.
started
by
setting
out the law as agreed by counsel.
She
summarised
the opinion of the court-appointed expert, Dr Goddard, a consultant paediatrician, that the majority of J'
s
injuries were "concerning for inflicted injury in the form of physical abuse" because of their number and location; that the linear marks on the left cheek were "consistent with a
slap";
that marks on the ear "are more commonly
seen
in abused children"; that J would have cried out in pain after the injury to the left arm, and that, in the absence of a
reasonable
explanation, that injury was more likely to be non-accidental.
single
witness".
She
recorded
the difficulties the court had experienced as a
result
of X becoming ill in the middle of her evidence. Later,
she
had failed to attend on the day allocated for the
resumption
of her evidence and as a
result
the hearing was adjourned again for X to attend. The judge
stated
that "the court gave the indulgence that it ought to have done quite correctly because the evidence of parents is very important and [X'
s]
evidence was heard in full".
She
described aspects of X'
s
evidence as "quite confused and inconsistent" and "quite extraordinary".
She
set
out at length her evidence about her
relationship
with Y, describing how
she
had initially lied about his behaviour towards her and about his presence in the house over the weekend but finally, on the last day of her evidence when Y was not present in court, had admitted that he had been abusive. The judge observed, however, that "just because
she
has lied to the court in that
regard,
it does not mean that all her evidence is a lie". Having
summarised
Y'
s
written
statements
and police interview,
she
concluded that he had assaulted X during the weekend when J had been in the house, but was unable to find, as urged by other
parties,
that J had been "caught up in the crossfire".
started
her
summary
of A'
s
evidence by
recording
that
she
now accepted that
she
had lied to the court about the extent of her ketamine abuse. Having considered the evidence about the issue, the judge observed that A
"has lied and it is not in my view becauseshe
is embarrassed.
She
has far more to hide and quite a lot to lose in that
regard.
Even in her evidence
she
did not
seem
to give it the
seriousness
that
she
ought to have done.
She
was
still
in
partial
denial but by her attitude
she
was trying to
state
that it was
something
that was wrong with the
results
…. I was not impressed by [her] evidence."
The judge thenset
out in
some
detail A'
s
evidence about what had occurred when J was
returned
to her on the evening of 19 January.
She
expressed concern about a number of aspects of this evidence including (1) that A
said
![]()
she
had noticed the abrasion on the arm that evening but not the abrasion by the ear; (2) A'
s
failure to text X the following morning after noticing marks on J'
s
face; (3) her failure to inform
school
![]()
staff
about the marks when
she
took J to
school
that morning; and (4) the delay of 40 minutes between dropping him at
school
and contacting
social
![]()
services
about the marks. The judge observed:
"If [A] wasso
concerned that it was
somebody
else
she
would have informed the
school
immediately. It is very common for [A] and the
school
to have a dialogue
regarding
marks on J …. Hence I would
say
her actions are
surprising
that
she
did not
seek
![]()
some
guidance from the
school.
Instead,
she
went home and thought about what is it that
she
can do. It is also
surprising
how
she
![]()
sees
absolutely no marks, no hand
slap,
no abrasion by the ear, and yet the following morning all that appears and
she
does nothing about it for a considerable period of time, given that
she
has known and
says
that
she
has
seen
this as
soon
as J is woken. I find that very concerning."
s
analysis of A'
s
evidence continued:
"I wouldsay
that
she
was very deflective and able to answer the questions in a way that lost the actual question. I would
say
that her answers were very calculating and I think
she
certainly
started
the campaign to point the finger at [X] in these
proceedings
to deflect away from herself. To
suggest
that the majority of these injuries were caused in what I would
say
was just over a 24-hour period, where this child is having time with a carer who has another child, just a year younger, who has not had any bruises or injuries of note or concern, and then to
suggest
that this
same
carer would inflicted those injuries on that child intentionally is, in my view, just too
remote,
and the evidence does not
support
that the injuries that this child
sustained
were all caused during the period of care by X and Y."
set
out her findings.
She
concluded that
some
of the injuries had been
sustained
accidentally while J was in the care of X and Y but continued:
"However, withregard
to the abrasion to the child'
s
arm … that injury occurred during the care of X and Y and that injury, as
stated
by Dr Goddard, would have caused J to cry out, and I would
say
that he did cry out. Why X did not notice him crying out is most probably because her drug test
results
indicate that
she
was likely to have been on drugs during that period of time as well. Therefore
she
has failed in my view to
supervise
him adequately."
Having concluded that other minor marks, including thescratches
to the penis, had been
sustained
accidentally, the judge continued:
"Withregard
to the
slap
on the face, I put that down to the intervener on the basis that
she
failed to
report
that at the earliest opportunity.
She
failed to
report
it to the
school.
One wonders why
she
failed to ask the mother in this case immediately when
she
![]()
saw
it when J woke up that morning, and then
she
decides that
she
will ask
someone
passing by when
she
is on her way to
school
if they can
see
any marks on his face. Thus I would
say
it is likely that
she
caused that injury that morning and on her way to
school
noticed the marks and then did not know what to do.
She
checked … if
somebody
else could
see
those, and instead of telling the
school
![]()
she
came home and decided to ring
social
![]()
services
and to put [X] in the frame."
She
continued:
"It has not been astraightforward
matter assessing the evidence of all the
parties.
It has been very conflicting and at times very difficult to assess exactly what the truth of the matter is. I considered carefully whether or not all three
should
![]()
remain
in the pool of perpetrators, but I have been able to decipher which injuries, in my view, at least in
respect
of the most
significant
injuries are attributable to which of the carers at the time.
So
in terms of the intervener it is the
slap."
said:
"Now that leaves the injuryregarding
the abrasion near the child'
s
ear. I would
say
that that happened during the care of [X and Y]. They
seem
to be adamant that that injury was present when J was collected, yet [X] makes no
reference
to it to [A] not in any text message or at all, and I think
she
would have done because it is
significant
…. I find that that injury occurred most probably due to the lack of
supervision
by X and Y…."
s
counsel asked for clarification about
several
factual matters and for permission to appeal. In a
supplemental
judgment, the judge made minor
revisions
to her findings about A'
s
drug use, added further observations about the "
slap"
injury, and
refused
permission to appeal.
schedule
of findings approved by the judge included the following findings against A:
(1) Two of the injuries to J's
face, namely four linear marks over the left cheek and a
red
mark on the left ear, were inflicted by A after J
returned
to her care on 19 January 2020 and probably in the morning of 20 January 2020, before he arrived at
school.
They are likely to have been caused during the
same
incident when the appellant
slapped
J.
(2) A deliberately attempted to establish a case to demonstrate that X and/or Y inflicted those injuries knowing thatshe
had inflicted those injuries herself.
(3) A's
use of ketamine was higher than
she
admitted and for a longer period of time.
She
deliberately attempted to avoid detection of drugs in her hair for the full period of 12 months of testing ordered by the court, including for January 2020 by cutting her hair.
Other findings included that the other injuries to his face and the deep abrasion to his arm weresustained
while in the care of X and/or Y and were the
result
of an unreasonable lack of
supervision;
that J was likely to have experienced pain and to have
reacted
immediately after
sustaining
the abrasion to his arm; that X had lied to implicate A; that Y had assaulted X during the night of 18 to 19 January; that over that weekend Y had been in the house for longer than he and X had admitted; that X had
supported
Y'
s
case as to his presence in the house to conceal his abuse of her; and that X and Y failed to protect J by
returning
him to A even though
she
was in an intoxicated condition.
S
remained
within her family.
Some
months later, the local authority
started
care
proceedings
in
respect
of J and his older brother which are ongoing. The boys
remain
at home with their mother under an interim
supervision
order.
The appeal
s
solicitors
filed a notice of appeal to this Court,
relying
on
six
grounds:
(1) Procedural irregularity/unfairness – The court made findings against the intervener which exceeded thosesought
in the
schedule
of findings and did not provide any
reason
for doing
so,
and the intervener has had
significant
findings made against her in
proceedings
not
related
to the welfare of her child and in which no
relevant
![]()
social
work evidence was produced.
(2) The court departed from the view of the expert Dr Goddard's
opinion in
respect
of the injuries caused to J and provided no
reasoned
judgment for disregarding Dr Goddard'
s
view and
reaching
a different conclusion.
(3) The court has erred in its application of the facts.
(4) The court has fallen intospeculation
and made findings which have no base in facts.
(5) The court has made findings inrespect
of the injuries which are contradictory and are
such
that have no basis in the evidence, cannot
reasonably
be explained or justified and is one that no
reasonable
judge could have
reached.
![]()
(6) The court failed to give proper consideration to Y's
failure to attend to give evidence and failed to properly draw adverse inferences which would have
significantly
affected the findings made.
September,
Peter Jackson LJ
refused
permission to appeal on the first ground but granted permission on grounds 2 to 6. The appeal hearing was fixed for 23 November and directions given for the filing of
skeleton
arguments.
s
solicitors
filed an application for permission to amend the grounds of appeal by adding a new ground based on procedural irregularity/unfairness in the following terms:
"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 inproceedings
where the appellant'
s
cognitive issues were not considered or adjustments made to ensure her
fair
![]()
participation.
The findings are therefore unsafe."
In addition, theysought
permission 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.
The amended ground of appeal: procedural unfairness
reached,
it is convenient to consider this issue first.
reports
which were prepared in the course of
proceedings
relating
to J and his brother on joint instructions from the local authority and
solicitors
acting for A and for the children. The copies of the
reports
filed in
support
of the application were heavily
redacted,
although we were told that leading counsel for the local authority had
seen
unredacted copies of both
reports.
The first
report,
dated 28 June 2021, on a cognitive assessment carried out by two psychologists, Dr Gary Taylor and Ms Lucy Howe, included the following passage:
"We are notrecommending
any
special
measures to enable [A] to
participate
in a hearing although
she
is likely to take benefit from there being
regular
breaks in the
proceedings
![]()
so
that information can be explained to her in words that
she
can understand. Important information pertaining to the
proceedings
may need to be explained to her more than once. Professionals
should
ask her to
repeat,
using her own words, what has been
said
to her
so
that they can confirm her understanding."
The
second
report,
dated 7
September
2021, prepared by Dr Indira Josling, a consultant clinical and forensic psychologist, included the following paragraph:
"[A]'s
cognitive functioning assessment
showed
that
she
is better at perceptual
reasoning
than verbal
reasoning;
![]()
she
prefers written and verbal information to be presented in clearer formats extra time given to her to assimilate the material. Her full comprehension of what
she
may be
reading
may need further
support
and time and would not necessarily be immediate. I ensured that I gave [A] adequate time on all of her assessments to enable her to do
so.
I would also question whether
she
may need a
separate
assessment for dyslexia which may also present as a learning need. FSIQ
score
was assessed as being
88,
low average. [A] may therefore
require
an advocate or intermediary in formal meetings, interviews and assessments to help assimilate written and verbal material and her comprehension needs may be better accommodated if other forms of communication were to be used e.g. flow diagrams, charts etc."
received
by A'
s
solicitors
from Communicourt in the following terms:
"I amrecommending
an intermediary for [A]. As
she
has difficulties with:
-processing longsentences
![]()
-understanding courtspecific
terminology
-understanding andresponding
to complex grammatical
structures
![]()
-understanding complex vocabulary
-processingsimple
verbal information
-remembering
key dates, and often gets the detailed confused."
Suzanne
Kelly, who
represented
A before the judge and before this Court,
submitted
that her client had hidden cognitive difficulties which were not apparent during these
proceedings.
She
informed us that A had been able to give clear instructions and appeared to understand the advice provided and the
proceedings.
Towards the end of A'
s
evidence, Ms Kelly had
some
concerns that
she
might have
some
difficulties, although it was not clear that these were cognitive issues, as opposed to misunderstanding questions which were long, complex and multifaceted. Ms Kelly added that, as a
result
of the Covid-19 pandemic,
she
and her instructing
solicitors
had never met A in person before the appeal hearing. All instructions had been taken over the telephone.
remotely
in accordance with the practice adopted in the family courts during the pandemic.
She
gave her evidence
sitting
alone in a room in her
solicitor's
office. Ms Kelly took us to a number of passages in the transcript which,
she
submitted,
demonstrated that it was
recognised
that A was on occasions finding giving evidence difficult. Ms Kelly asserted that, had the court been aware of her client'
s
cognitive difficulties, provisions would have been put in place for her and this would have led to a different outcome at the hearing. Thus Ms Kelly
submitted
that the hearing before the judge was flawed, that A
should
have had an intermediary present with her in court and that, prior to the court hearing, there
should
have been a ground rules hearing where
submissions
could be made as to the best way to
receive
her evidence.
serious
findings made against her after a long hearing before a Circuit Judge. On behalf of the local authority, Ms
Sally
Stone
QC did not oppose the application to amend the grounds of appeal, but opposed the appeal on this, and the other, grounds.
She
relied
on the fact that no one had expressed concern about A'
s
cognitive functioning or understanding at any
stage
in the
proceedings
up to and including the fact-finding hearing. In that period, A was able to give detailed instructions to her
solicitors
and to
participate
fully in the hearing. Ms
Stone
took us to a number of examples in the transcript where,
she
suggested,
it is clear that the appellant was competent to give evidence. Ms
Stone
drew attention to A'
s
use of language and to her ability to answer back, for example at one point
saying
"I'm not having you put words into my mouth". Ms
Stone
also contended that A'
s
use of various words ("insinuate", "tendency")
shows
that
she
had a good command of vocabulary. In the circumstances, Ms
Stone
submitted
that there was no
reliable
evidence that A was denied a
fair
trial.
substantive
appeal, adopting the
submissions
made by Ms
Stone.
Discussion
recent
years, 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.
In family
proceedings,
the rules are
set
out in 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"). There is no definition of "
vulnerability"
in the rules, but the provisions plainly extend to persons with comprehension difficulties of the
sort
identified by Dr Josling in her assessment of A.
set
out the rules in
some
detail. Rule 3A.4, headed "Court'
s
duty to consider how a
party
can
participate
in the
proceedings",
provides:
"(1) The court must consider whether aparty's
![]()
participation
in the
proceedings
(other than by way of giving evidence) is likely to be diminished by
reason
of
vulnerability
and, if
so,
whether it is necessary to make one or more
participation
directions.
(2) Before makingsuch
![]()
participation
directions, the court must consider any views expressed by the
party
about
participating
in the
proceedings."
![]()
Rule 3A.1, headed "Interpretation", provides that 'participation
direction' means:
"(a) a general case management direction made for the purpose of assisting a witness orparty
to give evidence or
participate
in
proceedings;
or
(b) a direction that a witness orparty
![]()
should
have the assistance of one or more of the measures in rule 3A.
8
…."
s
duty to consider how a
party
or a witness can give evidence", provides:
"(1) The court must consider whether the quality of evidence given by aparty
or witness is likely to be diminished by
reason
of
vulnerability
and, if
so,
whether it is necessary to make one or more
participation
directions.
(2) Before makingsuch
![]()
participation
directions, the court must consider any views expressed by the
party
or witness by giving evidence."
In the interpretationsection
in rule 3A.1 it is
stated
that:
"references
to 'quality of evidence' are to its quality in terms of completeness, coherence and accuracy; and for this purpose 'coherence'
refers
to a witness'
s
or a
party's
ability in giving evidence to give answers which address the questions put to the witness or the
party
and which can be understood both individually and collectively."
parties
which are not
relevant
to this appeal. Rule 3A.7, headed "What the court must have
regard
to", provides,
so
far as
relevant
to this appeal:
"When deciding whether to make one or moreparticipation
directions the court must have
regard
in
particular
to
…
(b) whether theparty
or witness
(i)suffers
from mental disorder or otherwise has a
significant
impairment of intelligence or
social
functioning;
….
(c) the nature and extent of the information before the court;
(d) the issues arising in theproceedings
including (but not limited to) any concerns arising in
relation
to abuse;
(e) whether a matter is contentious;
(f) the age, maturity and understanding of theparty
or witness;
…
(j) any characteristic of theparty
or witness which is
relevant
to the
participation
direction which may be made;
(k) whether any measure is available to the court;
(l) the costs of any available measure;
(m) any other matterset
out in Practice Direction 3AA."
8,
headed "Measures", provides inter alia:
"(1) The measuresreferred
to in this Part are those which
…
(d) provide for aparty
or witness to
participate
in
proceedings
with the aid of an intermediary;
(e) provide for aparty
or witness to be questioned in court with the assistance of an intermediary, or
(f) do anything else which isset
out in Practice Direction 3AA."
"Intermediary" is defined in rule 3A.1 as meaning:
"a person whose function is to
(a) communicate questions put to a witness orparty;
(b) communicate to any person askingsuch
questions the answers given by the witness or
party
in
reply
to them; and
(c) explainsuch
questions or answers
so
far as is necessary to enable them to be understood by the witness or
party
or by the person asking
such
questions."
recording
reasons
for decisions made under this Part", provides:
"(1) The court's
duties under rules 3A.3 to 3A.6 apply as
soon
as possible after the
start
of
proceedings
and continue until the
resolution
of the
proceedings.
(2) The court mustset
out its
reasons
on the court order for
(a) making, varying orrevoking
directions
referred
to in this Part; or
(b) deciding not to make, vary orrevoke
directions
referred
to in this Part, in
proceedings
that involve a
vulnerable
person or protected person."
proceedings
or during the
proceedings
by any person filing an application notice."
supplemented
by PD 3AA. Paragraphs 1.3 and 1.4 of the PD provide:
"1.3 It is the duty of the court (under rules 1.1(2); 1.2 &1.4 and Part 3A FPR) and of allparties
to the
proceedings
(rule 1.3 FPR) to identify any
party
or witness who is a
vulnerable
person at the earliest possible
stage
of any family
proceedings.
1.4 Allparties
and their
representatives
are
required
to work together with the court and each other to ensure that each
party
or witness can
participate
in
proceedings
without the quality of their evidence being diminished and without being put in fear or distress by
reason
of their
vulnerability
as defined with
reference
to the circumstances of each person and to the nature of the
proceedings."
Paragraph 3.1 gives guidance about the assessment of a person's
![]()
vulnerability
and its impact on their
participation
in the
proceedings.
![]()
Sections
4 and 5 of the PD give guidance about
participation
directions, including, with
regard
to
participation
other than by way of giving evidence, directions about the
structure
and timing of the hearing and the formality of language and, with
regard
to giving evidence, the convening of a ground rules hearing and directions about the conduct of cross-examination.
s
duty to identify any
party
or witness who is a
vulnerable
person arises not only under the express provisions in Part 3A of the FPR but also under the overriding objective provisions in Part 1. (It is notable that the equivalent, albeit more
succinct,
provisions
subsequently
inserted in the
Civil
Procedure Rules are
specifically
contained within the overriding objective provisions in Part 1 of those rules
supplemented
by Practice Direction 1A.) The duty is to identify
such
persons "at the earliest possible
stage",
an obligation
reinforced
in
proceedings
under Part IV of the Children Act by the
requirement
in the Public Law Outline in Practice Direction 12A to consider the need for directions as to
special
measures and intermediaries at the initial case management hearing.
party
or witness who is a
vulnerable
person, and to assist the court to ensure that each
party
or witness can
participate
in
proceedings
without the quality of their evidence being diminished, extends to all
parties
to the
proceedings
and their
representatives.
It will almost invariably be one of the
parties
or their
representatives,
rather than the court, who first identifies that a
party
or witness is or may be
vulnerable.
We consider that good practice
requires
the
parties'
representatives
actively to address the question of whether a
party
is
vulnerable
at the outset of care
proceedings.
Indeed, as
social
workers will as a matter of course be looking for
vulnerabilities
in families as part of their practice, it is to be hoped that this issue will be identified before care
proceedings
are
started.
We
recognise,
however, that it is often not easy to identify
vulnerabilities
and that professionals dealing with urgent and difficult
situations
in families will have to contend with a large number of issues. For that
reason,
we consider that, to comply with the obligation under rule 3A.9, the judge conducting the case management hearing at the
start
of care
proceedings
should
as a matter of course investigate whether there are, or may be, issues engaging Part 3A of the rules and that the
parties'
advocates
should
as far as practicable be in a position to
respond.
Furthermore, rule 3A.9
stipulates
that the court'
s
duty continues to the end of the
proceedings.
There will therefore be other points at which the court may have to address the issue – for example, where another
party
is joined to the
proceedings.
seek
judicial approval. Of
particular
importance to many
vulnerable
witnesses will be the need for frequent breaks and also the need for
straightforward
questions, rather than
several
questions wrapped up in one. The judge will be careful to ensure that
recommendations
made in
respect
of a
vulnerable
witness are followed. Intermediaries will
sit
with the
vulnerable
witness and will interrupt if a question is considered to be too complicated, and will ask for breaks if deemed necessary. Judges will be careful to ensure that the ground rules established are adhered to. Advocates and judges, for whom digesting large amounts of documents quickly, and
sitting
for two or more hours without a break are commonplace, must be alive to the fact that most witnesses have never previously experienced the court process and that
vulnerable
witnesses may become overwhelmed by it.
vulnerability
in cases like the present involving
parties
or witnesses with limited understanding. There are other equally important provisions in Part 3A applying to victims or alleged victims of abuse and intimidation. All
such
provisions are a key component of the case management process which ensures compliance with the overriding objective of enabling the court to deal with cases justly. As King LJ observed in
Re
N (A Child) [2019]
EWCA
Civ
1997 at [53]:
"Part 3A and its accompanying Practice Direction provide aspecific
![]()
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."
successful
appeal. The question on appeal in each case will be, first, whether there has been a
serious
procedural or other irregularity and,
secondly,
if
so,
whether as a
result
the decision was unjust. We are alive to the fact that many witnesses will give their evidence in a way which falls
short
of the
standard
that they would have wished for, or their advocates had hoped.
Sometimes,
this may be because of the very nature of human frailty, at other times it may be because a witness was deliberately deflecting or obfuscating or, worse
still,
lying.
Returning
to the case under appeal, we have considerable
sympathy
with the judge. We are keenly aware of the pressures on judges hearing complex care
proceedings,
greatly extended by the problems caused by the Covid-19 pandemic. For
reasons
which it is unnecessary to
spell
out in detail here, this case presented the court with a range of challenging case management issues, concerning drug testing, mobile phone
records,
and police disclosure. Given the
particular
care which the judge devoted to ensuring that X had a
fair
opportunity to give her evidence, we feel confident that
she
would have adopted an equally careful approach to A'
s
evidence had
she
been aware of her difficulties. In the event, no
party
or legal
representative
identified the possibility that A was or might be a
vulnerable
person because of impaired level of comprehension and we are
satisfied
that
she
was
fairly
treated within the context of what was then known. We acknowledge the difficulties mentioned by Ms Kelly facing A'
s
legal team who, because of the pandemic, were unable to meet their client face to face until the appeal hearing. We observe, with the great benefit of hindsight available to this Court, that legal
representatives
should
be
particularly
vigilant to detect possible
vulnerabilities
in their clients when they are unable to meet them in person. In this case, A'
s
difficulties were not immediately evident to Ms Kelly who only became concerned about her client'
s
level of understanding towards the end of the hearing. It is notable that the need for an intermediary was not identified in the initial cognitive assessment carried out by Dr Taylor and Ms Howe in June 2021 and the extent of A'
s
difficulties only became apparent in the
subsequent
assessments carried out by Dr Josling and Communicourt.
reached
the clear conclusion that the failure in this case to identify A'
s
cognitive difficulties and to make appropriate
participation
directions to ensure that the quality of her evidence was not diminished as a
result
of
vulnerability
amounted to a
serious
procedural irregularity and that as a
result
the outcome of the hearing was unjust. Of course, conducting the hearing over nine days, the judge was in the best position to make an assessment of the demeanour and competence of the witness, albeit in less than optimal conditions via a video link. But the new material that we have now
read
has an obvious bearing on the demeanour and credibility of the appellant. In
some
cases, there will be other evidence
supporting
the findings
so
that a flawed assessment of a witness'
s
evidence will not warrant any interference with the decision. In this case, however, the judge'
s
assessment of A'
s
character and plausibility of the witness were central to her ultimate findings.
parties'
evidence was not a
straightforward
matter and at times it was "very difficult to identify the truth". The judge'
s
attribution of
responsibility
for the injuries between X and Y on one hand and A on the other was based on a close analysis of the accounts given by all three adults, each of whom had lied at various points. In our view, there is a
significant
possibility that this evaluation would have been
refined
if not
revised
by knowledge that A had difficulties of comprehension as a
result
of which the quality of her evidence, as defined in rule 3A.1, was likely to be diminished. As demonstrated in the passages from the judgment cited above, the decision was
substantially
based on the judge'
s
assessment of A'
s
evidence, from which
she
drew a number of conclusions adverse to A'
s
credibility. These included conclusions about (1) the
reasons
A gave for her lies about her ketamine abuse; (2) her apparent failure during her evidence to treat the drug issue with appropriate
seriousness;
(3) her account of how on the evening of 19 January
she
had noticed the abrasion to J'
s
arm but not the abrasion on his face; (4) her failure to inform
school
staff
about the injuries, and (5) the delay of forty minutes in
reporting
the injuries to
social
services.
It is likely that the judge'
s
interpretation of A'
s
acts and omissions on the evening of 19 January and the following morning would have been materially affected by an understanding of A'
s
intellectual and communication problems. Most
striking
of all is the judge'
s
description of A as being "very deflective" during her oral evidence, "able to answer the question in a way that lost the actual question", manipulative and "very calculating". There is at least a
significant
possibility that this assessment would have been different had the judge known of A'
s
difficulties as
subsequently
explained by Dr Josling.
relating
to her cognitive difficulties cited above, and we allow the appeal on the grounds of procedural irregularity
set
out in the amended ground. It is important to
stress
that we are not
saying
that the judge'
s
findings were wrong – we are not in a position to
say
that one way or the other. Whilst we agree that, had the appellant been treated as a
vulnerable
party
or witness, a ground rules hearing would have taken place and the hearing conducted differently, that would not necessarily have led to a different outcome. We are allowing the appeal on the basis that the decision was unjust because there are
strong
reasons
to
suspect
that A did not have a
fair
opportunity to present her case.
remaining
grounds for which permission has already been granted. Having concluded that the judge'
s
decision was unjust because of procedural irregularity, there is no point in this Court conducting a critique of the judge'
s
findings. If there is to be a
rehearing
of the fact-finding hearing, it would be unhelpful for this Court to make any observations about the findings we are
setting
aside.
set
aside on appeal on procedural grounds, the normal practice is for a
rehearing
to take place before a different judge. That may well be appropriate in this case which involves
serious
allegations of assault of a child which if proved would plainly give rise to a likelihood of
significant
harm to any child in the care of the perpetrator. We were informed, however, that
S
is now
settled
in her family and the local authority has no plan to
remove
her. We were also told that, in the care
proceedings
concerning J and his brother, an expert parenting assessment is due to be completed very
shortly.
J and his brother
remain
at home with their mother under interim
supervision
orders. It may therefore be the case that, notwithstanding the
serious
allegations which the local authority has rightly brought before the court, a
rehearing
would be neither proportionate nor in the interests of any of the children in these two
proceedings.
proceedings
concerning A'
s
children are not before us. It will, however, be a difficult decision involving a number of conflicting issues. Accordingly, the best course is to
remit
these
proceedings
to the Family Division Liaison Judge for the
South-Eastern
Circuit, Williams J, and to invite HHJ Nisa to transfer the
proceedings
concerning A'
s
children to Williams J
so
that he can
reach
a decision as to whether there
should
be a
rehearing
of the fact-finding hearing as to the cause of J'
s
injuries and, if
so,
to allocate the
proceedings and the hearings as he thinks fit.