In October 2019, a final order was made by DJ Parry following the conclusion of contested financial remedy proceedings the previous month. The wife applied for leave to appeal the final order and this was refused by HHJ Rowland. Exactly one year later, the wife made an application to set aside the order on the basis that she had not had capacity during the hearings before DJ Parry. This was refused by DJ Solomon on the basis that there was insufficient evidence to conclude that the wife had lacked capacity at the relevant time.

In March 2022, the wife applied for permission to appeal, out of time, the order of DJ Solomon. It is the appeal of this order which came before Lieven J in June 2023. The wife relied on two grounds: (a) lack of capacity; and (b) that contrary to FPR 3A and PD 3AA, no participation directions had been put in place for the wife at the final hearing (or indeed any of the hearings) despite her vulnerability, such that the final hearing had not been Article 6 ECHR compliant (i.e. she had not had a fair hearing). Lieven J refused permission on both grounds.

FPR 3A.4(1) and 3A.5(1), taken together, provide that the court must consider whether a party’s participation in proceedings (including by way of giving evidence) is likely to be diminished by reason of vulnerability and if so whether it is necessary to make any participation directions. Where a court has decided that a vulnerable party is to give evidence, it must then hold a ground rules hearing (per PD 3AA, para 5.2) prior to the substantive hearing. Paragraph 3.1 of PD 3AA makes clear that these duties apply to the court as well as the parties.

It was said on the wife’s behalf in BF v LE that she was vulnerable on the basis of her mental health issues and the alleged domestic abuse perpetrated by her former husband. The appeal before Lieven J was the first occasion on which a lack of participation directions was relied on (it was not raised when the wife appealed to HHJ Rowland or in her set aside application determined by DJ Solomon). It was submitted that the wife’s vulnerability would have been apparent to DJ Parry at the final hearing and since the duty to consider participation directions applied to the court as well as to the parties, it was incumbent on DJ Parry to have applied FPR 3A; the judge’s failure should therefore have led DJ Solomon to set aside DJ Parry’s order. The wife’s counsel pointed to a number of High Court decisions which were overturned on the ground that the judge had failed to make participation directions (e.g. K v L and M [2021] EWHC 3225 (Fam) per Judd J).

Lieven J was not convinced by this argument. The judge stated at [41] that it is a ‘trite proposition’ that there is no such thing as a technical breach of natural justice and thus there is no automatic consequence that a lack of participatory directions, even if they may have been appropriate had they been considered at the relevant time, will lead to a decision being overturned. Therefore, the question has to be determined on the facts of the particular case. The judge was supported in this by the analysis of Baker LJ in Re S (Vulnerable Party: Fairness of Proceedings) [2022] EWCA Civ 8 at [42].

Lieven J concluded that on the particular facts of this case, there was nothing to suggest that there was an unjust outcome, or that the lack of special measures would have had any impact on the outcome. The judge also noted that this issue should have been raised when the wife appealed to HHJ Rowland. As such, the appeal was refused on this ground (as well as on the ground that the wife had lacked capacity).

Courts across England and Wales have in recent years become far more cognisant of the need to make provision for vulnerable persons when giving evidence, and thus ensuring that any hearing is compliant with a party’s Article 6 rights. There has been much discussion in case law of the duty incumbent upon the court both to take the required steps when presented with a vulnerable witness or party, and to be alive to the issue even when the parties are legally represented and the issue has not been explicitly raised by the advocates.

There have been several recent appeals which demonstrate how a lack of compliance with FPR Part 3A and PD 3AA can render a judgment procedurally unsound. Indeed in Re S (Vulnerable Party: Fairness of Proceedings), compliance with the provisions was described as being of ‘fundamental importance to the administration of family justice’.

The list of recent successful appeals in relation to failure to comply with FPR Part 3A was outlined by Theis J in D v R [2023] EWHC 406 (Fam), who references K v L and M (above), GK v PR [2021] EWFC 106 per Peel J, and CM v IP [2022] EWHC 2755 (Fam) per Morgan J. She noted that the success of the above appeals resulted from the procedural irregularity of the court failing to recognise its ‘independent obligation’ to consider the vulnerability of a witness or party, and subsequently failing to hold a ground rules hearing to consider the necessity of participation directions.

The subsequent judgment in BF v LE that was being appealed by the wife took place prior to the introduction of the Domestic Abuse Act in 2021. Section 63 of the Domestic Abuse Act made revisions to FPR 3A.2A on 31 January 2022 to stress the obligation on courts in relation to special measures (emphasis added):

‘(1) A party or witness who is, or is at risk of being, a victim of domestic abuse (as defined in s1 DAA) is to be assumed to be a vulnerable witness or party.

(2) Where that applies the court must consider whether it is necessary to make one or more participation directions.’

The amendment to the FPR was summarised more fully by Gywnneth Knowles J in Re M (Private Law Children Proceedings: Case Management: Intimate Images) [2022] EWHC 986 (Fam), in which specific guidance was given at [36]–[44] on how courts should apply the legal and procedural framework in relation to participation directions for the involvement of alleged victims of domestic abuse.

It is important however to note that failure to comply with the provisions as expanded upon above does not automatically lead to a successful appeal, and that the hurdle of ‘serious procedural irregularity’ will still have to be met. This was stressed by Baker LJ in A v A Local Authority & Ors [2022] EWCA Civ 8 at [42]:

‘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. 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.’

This principle is echoed in the judgment of Lieven J in BF v LE when dismissing W’s arguments on special measures at [82]:

‘The question must be whether there was a breach of natural justice which would have required DJ Solomon to set aside the earlier decision and which led to an unjust outcome. Dr Proudman’s submissions come very close to the proposition that wherever there is a case where special measures would have been appropriate and they have not been imposed, that should lead to the decision being set aside. But that is not the correct approach. It is only if the lack of special measures led to a breach of natural justice, which itself impacted on the outcome of the case, that a decision might be set aside.’