Article by Steven Evans
Halcyon Chambers’ Family Team recently represented a parent in care proceedings concerning allegations of abuse made by a child (15). Contrary to the child’s strong wishes, the Court determined that shewould not give oral evidence because it would not be in her ‘best interests’.
Eleven years on from Re W  and the subsequent Working Party of the Family Justice Council guidelines, the Family Court remains unable to reconcile the ‘best interests’ principle and children’s participation in care proceedings. This is caused by regressive attitudes towards children giving evidence and the inadequate ‘special measures’ legislation available to the Family Court.
Part 3A of the Family Procedure Rules implemented guidance for the participation in proceedings and giving evidence by ‘vulnerable persons’. However, Part 3A only applies to children to the extent that they are witnesses and does not require the court to determine whether the participation of a child in proceedings is likely to be diminished by reason of vulnerability.
The court has the power to control evidence in family proceedings and to provide directions as to how evidence is to be presented to the court, although these provisions only apply to ‘special measures’ available at common law to children and vulnerable witnesses and do not extend to Rule 3A.8(1).
Therefore, ‘special measures’ for children derive from common law principles characterised by the Youth Justice and Criminal Evidence Act 1999 (“the YJCEA 1999”).
In addition, there are two conditions which must be satisfied before the court has power to order ‘special measures’ in family proceedings under Part 3A. Firstly, there must be an assessment of the witness and secondly, funding must be available to provide the ‘special measures’.
In criminal proceedings the Crown Prosecution Service can fund assessments and ‘special measures’, whereas Rule 3A.8(4) states “nothing in these rules gives the court power to direct that public funding must be available to provide a measure”. The lack of funding acts as an additional barrier to children giving evidence in care proceedings.
The Family Justice Council summarised the inadequate implementation of Part 3A in 2019 by stating “there is as yet only limited understanding as to how FPR Part 3A and PD 3AA are operating in practice. However, the Family Justice Council domestic abuse working group has been made aware… of the patchy and inconsistent implementation of these provisions”. The result if that ‘special measures’ for children are rarely used in care proceedings.
Comprehensive legislation in criminal proceedings has allowed children and vulnerable witnesses to give their ‘best’ evidence and ensure that hearings are fair. Whilst the Family Courts have adopted these principles by way of common law, a YJCEA 1999 equivalent does not yet exist.
New and comprehensive ‘special measures’ legislation is required to allow children to properly participate in decisions which have the gravest consequences to their lives.
It must go further than Part 3A by ensuring the Court has the power to order public funding is available for both the assessment and provision of ‘special measures’ in all cases involving children giving evidence.
However, ‘special measures’ legislation will be redundant unless lawyers and other professionals depart from the presumption against children giving evidence on grounds of age, immaturity and emotional harm.
It has been a long time since Re W , yet we are no closer to allowing children fair and proper opportunity to participate in proceedings.