Special Measures in Family Court Hearings

Special measures are provisions available under the direction of the court to aid vulnerable parties to give evidence or participate in court proceedings. Once victims of abuse receive support to initiate court proceedings, it is important to consider the available measures to protect them from further interaction with the perpetrator. It is also important to submit the appropriate form (Form C8) with the initial application in order to keep the applicant’s details confidential.

Provision for special measures in family proceedings is made in Part 3A of the Family Procedure Rules 2010, supported by Practice Direction 3AA. These rules provide that victims of domestic abuse, and other parties or witnesses, are eligible for special measures in the proceedings if the court is satisfied that the quality of their evidence or their ability to participate, is likely to be diminished due to their vulnerability. There are a range of special measures which have long been available to victims of domestic abuse and these include separate court entrances; separate waiting rooms, the use of screens in court to prevent the witness from seeing the perpetrator and from being seen; permitting evidence via video link and giving the witness the assistance of an intermediary. To support vulnerable witnesses and parties in the family courts, the Ministry of Justice has made £200,000 available for the purchase of screens for use in family proceedings.

S63 Domestic Abuse Act 2021, in force from 1^st October 2021, provides that where a party is, or is at risk of, being a victim of domestic abuse, they will automatically be eligible for special measures in family proceedings because the court will assume their ability to participate or give evidence and the quality of their evidence will likely be diminished.

However, it will remain a matter for the court to decide which of the available measures are necessary in the particular circumstances of the case. Rules may also be provided for an exception to this automatic provision for those who wish to participate in the proceedings without any special measures.

Remote Hearings

The Family Courts have the power to make directions for special measures to assist a vulnerable party during proceedings. However, the move to remote hearings as a result of the pandemic posed significant challenges to this. The requirement to isolate during Covid-19 increased the risks for people in abusive relationships. Not only were victims left more vulnerable, having to isolate with the perpetrators of their abuse, but they were often forced to seek protective orders and give evidence whilst continuing to jointly reside in the same property. This was a problem not just in England and Wales, but globally. In March 2021 a court hearing in Michigan, US was dramatically halted when the Prosecutor realised that the victim’s alleged abuser was in the same room as her and could be overheard during hearing. Whilst the lockdown measures have been eased, the adoption of remote hearings has continued. It is therefore essential to understand how best parties can be supported in remote hearings.

The Family Justice Council (FJC) published guidance titled ‘Safety from Domestic Abuse and Special Measures in Remote and Hybrid Hearings’, which helpfully sets out guidance on the practical considerations to be adopted going forward. In particular, the FJC specifically highlighted the risk of harm to victims of domestic abuse if perpetrators are able to use the hearing as an opportunity for further abuse.

A checklist of considerations for proceedings in which domestic abuse is an issue has been produced and includes the following:

• In what environment will the victim be appearing?
• In what environment will the victim be preparing themselves for and dealing with the aftermath of the hearing?
• What will be visible to the court and any other participant in the proceedings? What will be visible to the victim?
• What kind of environment and level of visibility is necessary in order to ensure physical and emotional safety for the victim and any children involved?
• What kind of environment and level of visibility is necessary to enable the victim to give their best evidence?
• What kind of environment is necessary to enable the victim to prepare themselves mentally and emotionally for the hearing and to cope after the hearing?
• What kind of environment is necessary for the court to deal justly with the case having regard to any welfare issues involved?

You can access the guidance here

Consideration must be given to the format of the remote hearing, whether by telephone or CVP hearing, so as to ensure that the parties are not put in a situation where they are alone together. It is also important to consider how details for the remote hearing are sent to the parties. Email transmissions are often sent to all of the parties simultaneously, but it is important to ensure that the victims contact details are not sent to the perpetrator.

Participating in video hearings can be particularly invasive for victims. It is often the case that victims will attend remote video hearings from their bedroom, allowing the perpetrator to virtually enter their private spaces. Methods have been suggested to replicate special measures remotely. Participants can blur their background or use a background wallpaper so that their location cannot be identified. Victims and vulnerable witnesses should be permitted to join by audio only, with their videos turned off. This will prevent them from being seen. A party could also attend by telephone only, whilst the other attends by video. Hybrid hearings have also been adopted, where one party will attend the hearing in person and the other attends remotely by video or telephone. This serves as a suitable option, particularly where the court facilities are unable to accommodate special measures e.g., separate waiting areas.

In person hearings

With respect of cross examination, s65 Domestic Abuse Act 2021, prohibits perpetrators from cross-examination in person in family proceedings. More specifically, s65(31R) Domestic Abuse Act prohibits cross-examination in person of victims of offences and s65(31S) prohibits the cross-examination in person of persons protected by injunctions. S64 DAA 2021 inserts a new Part 4B (Family Proceedings: Prohibition of Cross-Examination in Person) into the Matrimonial and Family Proceedings Act 1984.

The provisions under s65 Domestic Abuse Act 2021 are not yet in force but will come into force on a date to be appointed.

If you would like any advice or assistance, regarding protective orders and special measures, please do not hesitate to contact us.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*