Ruth Hawkins, of Turpin & Miller LLP 

Special measure for vulnerable witnesses and litigants

Over the past few years in the family courts, especially, but also in the wider court system in criminal cases and civil cases, there has been a growing acceptance, that appearing in court can be a very stressful experience, and for some that stress is much greater than others. This is particularly so for witnesses with learning disabilities or autism, or for victims of domestic abuse who may be appearing in court with their perpetrator, or of course for children who may be appearing as witnesses or possibly participating in a case.

It has long been the case that those for whom English is not a first language an interpreter will be provided; or the deaf or hard of hearing might be provided with a sign language and/or lip reading interpreter; or those with sight problems be given practical measures to follow the documentation with Braille or other forms designed to help them follow the proceedings. For those with learning disabilities, Judges, lawyers and other professionals are more and more used to taking professional advice about a witness or party’s needs. I personally have been involved in many such cases, and have employed a variety of means to assist in the litigation, ranging from using large font in letters; ensuring that simple language is used; using different coloured paper; using intermediaries trained in assisting those with learning difficulties, and so on.

There are a variety of ways that the courts and the lawyers appearing in court can try and make it easier for these vulnerable witnesses or children to participate. Advocates and Judges are often now trained in dealing with those with learning difficulties and other conditions such as autism, and also with victims of domestic abuse or trauma.

The following list includes some of the ‘special measures’ that I have used, or seen used in family cases recently, but it is by no means an exhaustive list:

- Allowing the witness plenty of breaks both when giving their own evidence, and also, if they are a party to the case, ensuring they have plenty of breaks whilst hearing others give theirs

- Allowing a ‘traffic light’ system to the witness or party, for them to show a red card when they need an urgent break or an amber card when they feel they will need a break soon

- Video link evidence

- Ensuring private interview/breakout rooms are available for children or vulnerable witnesses

- Staggering witnesses’ arrival times so they do not come into contact with a perpetrator of abuse

- Different entrances and exits

- Limiting the number of lawyers cross examining a witness, particularly in care proceedings where there are often 4 or more lawyers – it will very often be agreed that one or possibly two lawyers will be limited to asking questions of a vulnerable witness, and in some instances, especially where the vulnerable witness is a child, the Judge will be responsible for asking the questions

- The witness can give evidence behind a screen

- Using an intermediary service, to provide (non legal) advocacy services

- Allowing a support – a friend or outreach worker or parent or family member – to sit with the witness or party in court, providing they themselves are not a witness

Where a party to a case lacks capacity to instruct a lawyer and participate in a case, either by reason of age or learning difficulties or mental health reasons, the court will consider appointing a ‘next friend’ to act on their behalf and/or appoint lawyers and instruct them.

With children who have been made parties to a case, the next friend is usually a CAFCASS (Children and Family Court Advisory and Support Service) officer. They will be appointed by the court, and in turn will instruct a solicitor, who has been specially trained and has been appointed by the Law Society as a member of their accredited Children Panel, to represent the child in the case.

If a party to a case lacks capacity due to mental health concerns or learning difficulties, an assessment will be undertaken by either a psychiatrist or psychologist (depending on the specific needs), and if they consider the party lacks capacity under the Mental Capacity Act 2005, and is therefore unable to conduct the case on their own, they will complete a certificate to this affect and a ‘next friend’ or the Official Solicitor, who is based in London and is part of the Official Solicitor and Public Trustees Office, part of the Ministry of Justice, will be appointed.

If you are a witness in a court case or a party to a case, and you feel that you might need help with the proceedings, I would advice you to speak to you lawyer if you have one about your concerns, and if you are unrepresented, to speak to the court office, or if there is a lawyer on the case, even if they are acting against you, to raise issues with them, or with the Judge or magistrates hearing your case.