Within the Family Court there is a growing understanding of the importance of ensuring that the court process is adapted for those that are vulnerable. The effects of this evolution in professional focus have perhaps been most keenly felt in children cases, and rather less so in those involving financial matters.

That may be understandable when one considers the subject matter of those proceedings often involves life-long welfare decisions as well as the risk of (or actual) harm to children.

That is in marked contrast to most financial remedy cases which, although they may elicit strong emotions, are firmly focused upon the division of assets and income.

We must keep in mind therefore that the Financial Remedies Court deals with a wide range of cases and in truth we routinely come across cases which involve vulnerable witnesses or parties, for example, one party alleges domestic abuse, including financial abuse and coercive and controlling behaviours upon the breakdown of the marriage. Many of us have had cases where there is an older client with cognitive decline or dementia or where they have suffered a brain injury. As advocates it is our duty to identify these parties and witnesses and ensure that we enable their effective participation in the court process.

Identifying vulnerability is a key element of the duty placed upon the court and the parties by Part 3A and PD 3AA of the Family Procedure Rules 2010. It is the joint duty of the court and the parties to identify someone who is vulnerable (by reference to the factors set out at FPR 3A.7) at the earliest opportunity. Additionally:

‘all parties and their representatives are required to work 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.’ (FPR PD 3AA 1.4)

Practitioners are required therefore to be alert to issues that may cause their client (or another party) to be considered vulnerable such that their ability to participate in the proceedings, or the quality of their evidence is likely to be diminished (FPR 3A.4, 3A.5). The Advocates’ Gateway Toolkits 10 and 13 can provide valuable assistance in identifying vulnerability.

Whilst practitioners may be familiar with issues involving capacity or visible disabilities other vulnerabilities may not be obvious. People who experience certain neurodevelopmental or learning difficulties may be adept at keeping them hidden or may manage well in day-to-day life but find the court environment challenging. Advocates may find that significant adaptations are required including breaks, intermediary assistance and restrictions on cross-examination. A history of trauma may not always be easy to identify but it may have a significant impact on a person’s ability to engage with proceedings or to give their evidence. Advocates need to be mindful that there are many factors which may lead to a person being vulnerable within court proceedings.

It is also necessary to consider the impact of domestic abuse. Within Part 3A, domestic abuse has the meaning given in section 1 of the Domestic Abuse Act 2021 which includes physical, sexual, emotional or psychological and economic abuse as well as coercive and controlling behaviour.

Since October 2021 amendments to FPR 3A have put in place an assumption where a party or witness is stated to be a victim (or to be at risk of being a victim) of domestic abuse by a party, party’s relative or witness in the proceedings. In which case it will be assumed that their participation or the quality of their evidence is likely to be diminished by reason of vulnerability (FPR 3A.2A). That assumption does not require the domestic abuse to be an issue that is relevant within the proceedings themselves. The court must go onto consider what if any participation directions are required.

Whilst we know that a history of domestic abuse is a common context in the Family Court (it is thought to be an issue in at least 40% of private law children cases1), it is not known how many financial remedy cases involve a relationship history of (alleged) domestic abuse. It is therefore not clear how many cases will now involve this presumption of vulnerability.

Of course, domestic abuse will not frequently be an issue before the court in conduct terms (unless it meets the ‘gross and obvious’ standard), but a history of domestic abuse may well necessitate appropriate participation directions in order to enable the (alleged) victim to fairly participate. For example, it may be difficult for them to sit in a small District Judge’s chambers with the (alleged) perpetrator across the table from them whilst they engage with an FDR or give their evidence.

From May of this year, when section 65 of the Domestic Abuse Act 2021 is intended to come into force, there will be a statutory prohibition against cross-examination taking place between perpetrators (or alleged perpetrators) and their victims in cases where the (alleged) perpetrator has been convicted, cautioned or charged with a specified offence, there is an on-notice injunction or there is specified evidence of domestic abuse. Regulations will determine the nature of a specified offence as well as the evidence that will justify the prohibition. The court will also have a discretion to prevent in person cross-examination taking place where it appears that the quality of the evidence is likely to be diminished or the cross-examination would be likely to cause significant distress (having taken into account the specified factors which will be at the new section 31U(5) of the Matrimonial and Family Proceedings Act 1984). The court will have the power to invite the party to instruct a legal representative or to appoint one itself.

The implementation of these provisions will bring new focus to the need for practitioners to be familiar with the requirements of FPR 3A, which include the need for a Ground Rules Hearing in every case in which a vulnerable witness is to give evidence (FPR PD 3AA 5.2).

The mandatory nature of these provisions has been recently emphasised by a number of successful appeals on the ground of serious procedural irregularity as a result of failure to apply Part 3A FPR 2010 (see S (Vulnerable Party: Fairness of Proceedings) [2022] EWCA Civ 8; GK v PR [2021] EWFC 106; N (A Child) [2019] EWCA Civ 1997; GK v PR [2021] EWFC 106). Although these appeals have related to Children Act 1989 proceedings there is nothing to suggest that a similar failure in financial proceedings would have a different outcome.

Simply put, the FPR 3A regime requires the court and representatives to adapt the process to meet the specific needs of the vulnerable person, which will be different in each case. In some instances small adjustments will be sufficient but in others substantial adaptions may be required which necessitate an entirely new approach to cross examination. For example it may be necessary to require the use of simple language, disallow leading, compound and tag questions, prohibit repetition, restrict the ambit of cross-examination and require written questions to be approved by the court in advance. The requirements of fairness may be challenging to our existing skill set but we must expect to be held to the necessary standard.

The FLBA is now offering vulnerable witness advocacy training to all members of the Family Bar who have completed pupillage. The Advocacy and the Vulnerable training which has been developed with the Inns of Court College of Advocacy provides specialist advocacy training, enabling advocates to gain the skills required to effectively deal with vulnerability and to ensure a consistency of approach throughout the Family Court.

Course dates are advertised by FLBMail and there are currently places available at sessions around the country between now and March 2023:

• Manchester: 11 June 2022
• Bristol: 17 Sep 2022
• Leeds: 15 Oct 2022
• London: 26 Nov 2022
• Cardiff: 28 Jan 2023
• Liverpool: 4 March 2023

Please email advocacytraining@flba.co.uk to sign up.

Siân Smith is a barrister at 42 Bedford Row, practising in financial remedy and children work. She chairs the FLBA’s Advocacy Working Group and is one of a small number of Facilitators qualified to deliver the new Advocacy and the Vulnerable training. She has particular expertise in representing and cross-examining vulnerable parties. For tweets on family law: @SianS_famlaw

Zoë Saunders is a barrister, mediator and arbitrator at St John’s Chambers in Bristol specialising in financial remedy, TOLATA and international children work. She is a qualified facilitator for the FLBA Advocacy and the vulnerable training course and an advocacy trainer for Gray’s Inn. Tweets at @ZASaunders