D v R [2023]: An important reminder of the application of Part 3A and Practice Direction 3AA

[2023] EWHC 406 (Fam)[1]

Rajni Virk, Pupil Barrister

In this recent authority, Mrs Justice Theis DBE considers an appeal following a fact-finding hearing on the grounds that Part 3A and Practice Direction 3AA Family Procedure Rules 2010 were not complied with by the judge. This appeal was allowed, the findings were set aside and the case was remitted to the Designated Family Judge to consider a re-hearing. This case provides a helpful legal framework of the important provisions when the case involves a vulnerable party.

Background

The parties had been in a relationship since 2015, married in May 2019 and separated in June 2021. They had one child together (X) who was born in 2020. Since separation, X remained living with the mother. The father made an application in December 2021 to spend time with X. During the proceedings, the mother made allegations of domestic abuse against the father. The fact-finding hearing took place remotely in September 2022 before Recorder Bradberry, it lasted for four days and both parties were legally represented.

The mother appealed the judgment on the grounds that the judge failed to comply with the court’s duties under Part 3A and Practice Direction 3AA Family Procedure Rules 2010 (‘FPR’) and section 62 Domestic Abuse Act (‘DAA’) and how the court dealt with section 98 Children Act 1989.

Legal Framework

At paragraphs 19 – 24 Mrs Justice Theis DBE helpfully sets out the key law applicable to appeals and participation of vulnerable parties in proceedings.

Appeals

An appeal may only be allowed where the decision of the court was wrong or there was a procedural irregularity, such that the decision made was unjust[2]. This conclusion can be reached by the appellate court where;

1. there has been an error of law;
2. the judge had clearly failed to give due weight to some very significant matter or, by contrast, has clearly given undue weight to some matter not deserving of it[3];
3. that a conclusion has been reached on the facts before the court which was not open to the judge reaching them on the evidence[4];
4. that a process has been adopted at the court below which is procedurally irregular and unfair to such an extent that it renders the decision made unjust[5]; or
5. that a discretion has been exercised which is outside the parameters within which it is possible to heave reasonable disagreement[6].

Participation of Vulnerable Parties

This is governed by FPR Part 3A “Vulnerable Persons: Participation in Proceedings and Giving Evidence” and is supplemented by Practice Direction 3AA (‘PD3AA’). No definition is given to ‘vulnerability’ however, some factors the court may consider are set out in PD3AA paragraph 2.1. These provisions were introduced in 2017 and FPR 3A was amended in 2022 for cases involving allegations of domestic abuse. These changes were helpfully summarised by Mrs Justice Knowles in Re M (Private Law Children Proceedings: Case Management: Intimate Images) [2022] EWHC 986 (Fam), which highlighted the inclusion of Rule 3A.2A; ‘Court’s duty to consider making participation directions: victims of domestic abuse’ and the amendments following the implementation of the Domestic Abuse Act 2021 (particularly section 63).

In her judgment, Mrs Justice Theis DBE identifies Mrs Justice Knowles’ summary in Re M as essential reading for any judge involved in proceedings with allegations of domestic abuse. A summary of the steps that a court should follow in these circumstances are:

(1) Is this a case where there are allegations of domestic abuse within the definition of

section 1 DAA? Section 1 defines “domestic abuse” as follows:

(2) Behaviour of a person (“A”) towards another person (“B”) is “domestic abuse” if –

(a) A and B are each aged 16 or over and are personally connected to each other, and

(b) the behaviour is abusive.

(3)Behaviour is “abusive” if it consists of any of the following –

(a) physical or sexual abuse;

(b) violent or threatening behaviour;

(c) controlling or coercive behaviour;

(d) economic abuse;

(e) psychological, emotional or other abuse;

and it does not matter whether the behaviour consists of a single incident or a course of conduct.

(4) “Economic abuse” means any behaviour that has a substantial adverse effect on B’s ability to –

(a) acquire, use or maintain money or other property, or

(b) obtain goods or services.

(5) For the purposes of this Act A’s behaviour may be behaviour “towards” B despite the

fact that it consists of conduct directed at another person (for example, B’s child)”.

(2) If there are allegations of domestic abuse s 63 DAA applies and Rule 3A.2A provides:

3A.2A Court’s duty to consider making participation directions: victims of domestic abuse

(1) “where it is stated that a party or witness is, or is at risk of being, a victim of domestic abuse carried out by a party, a relative of another party, or a witness in the proceedings, the court must assume that the following matters are diminished –

(a) the quality of the party’s or witness’s evidence;

(b) in relation to a party, their participation in the proceedings”…

(3) Where the assumption set out in paragraph (2) above applies, the court “must consider whether it is necessary to make one or more participation directions” (Rule3A.2A(3)) (emphasis added). Participation directions are often referred to as ‘specialmeasures’.

(4) It is important to keep in mind, and distinguish between, the need for participation directions to facilitate participation in a hearing from those relating to how evidence is given. As regards participation in a hearing, there is a need for that to be considered at the start of the proceedings (and kept under review), whereas those applying to the giving of oral evidence may be additional and/or different to any earlier participation directions. As regards those that may be required for giving evidence, they may best be considered after the written evidence has been filed.

(5) A ground rules hearing should be held. PD3AA para 5.2 states “When the court has decided that a vulnerable party, vulnerable witness or protected party should give evidence there shall be a “ground rules hearing” prior to any hearing at which evidence is to be heard, at which any necessary participation directions will be given’. There is no need for this to be a separate hearing to any other hearing in the proceedingsbut a part of the hearing should specifically relate to consideration of any participationdirections.

(6) Rule 3A.7 sets out a list of matters to which the court must have regard to “when deciding whether to make one or more participation directions:

(a) the impact of any actual or perceived intimidation, including any behaviour towards the party or witness on the part of –

(i) any other party or other witness to the proceedings or members of the family or associates of that other party or other witness; or

(ii) any members of the family of the party or witness;

(b) whether the party or witness –

(i) suffers from mental disorder or otherwise has a significant impairment of intelligence or social functioning;

(ii) has a physical disability or suffers from a physical disorder; or

(iii) is undergoing medical treatment;

(c) the nature and extent of the information before the court;

(d) the issues arising in the proceedings including (but not limited to) any

concerns arising in relation to abuse;

(e) whether a matter is contentious;

(f) the age, maturity and understanding of the party or witness;

(g) the social and cultural background and ethnic origins of the party or witness;

(h) the domestic circumstances and religious beliefs of the party or witness;

(i) any questions which the court is putting or causing to be put to a witness in

accordance with section 31G(6) of the 1984 Act[7];

(j) any characteristic of the party or witness which is relevant to the participation

direction which may be made;

(k) whether any measure is available to the court;

(l) the costs of any available measure; and

(m) any other matter set out in Practice Direction 3AA”.

(7) The court may make such directions for the measures specified in Rule 3A.8. In addition, the court may use its general case management powers as it considers appropriate to facilitate the party’s participation (para 4.2 of PD 3AA).

(8) The measures set out in Rule 3A.8 “are those which –

(a) prevent a party or witness from seeing another party or witness;

(b) allow a party or witness to participate in hearings and give evidence by live link;

(c) provide for a party or witness to use a device to help communicate;

(d) provide for a party or witness to participate in proceedings with the assistance of an intermediary;

(e) provide for a party or witness to be questioned in court with the assistance of an intermediary; or

(f) do anything else which is set out in Practice Direction 3AA”.

(9) The court should set out its reasons on the court order for making, varying, revoking or refusing any directions in FPR Part 3A (Rule 3A.9).

Mrs Justice Theis DBE also referred to the decision of Baker LJ in A v A Local Authority and others [2022] EWCA Civ 8, specifically paragraphs 41-42. In particular, Baker LJ states when discussing Part 3A; “All such provisions are a key component of the case management process which ensures compliance with the overriding objective of enabling the court to deal with cases justly.” Importantly, Baker LJ goes on to say that “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.”

Submissions

In relation to ground 1, it was submitted on behalf of the appellant that the serious nature of the allegations in this case encompass the meaning of domestic abuse. Thus, under FPR rule 3A.2A the mother should have been identified as someone who was a vulnerable party, and the court was under a duty to consider if any participatory directions were required when she gave evidence. It was submitted that the court wholly failed in this duty and in the judge’s conclusions about the mother’s evidence, the judge noted the mother’s inconsistencies. It was submitted on the mother’s behalf that no account was taken of her vulnerabilities as a complainant of domestic abuse, and what potential impact this may have had on her evidence. Further, the failure to comply with the mandatory requirements of FPR Rule 3A was a serious procedural error, resulting in the hearing being unfair and unjust. The submissions in relation to ground 2 covered similar legal points. It was submitted that the judge was wrong to replay videos without having a ground rules hearing to consider any potential impact this may have on the mother as a vulnerable witness and any participation directions that should be made.

The father, who appeared in person, provided a written skeleton argument and oral submissions. He submitted that there would simply be no difference in the final outcome and the function of a remote hearing would have assisted the mother. At no point did the mother ask for her camera to be switched off, she had breaks during her evidence and the videos were required to be played as she disputed facts.

Decision and Conclusion

Whilst considering her decision, Mrs Justice Theis DBE reiterated historic appeals in relation to compliance with FPR Part 3 and PD3AA at [34]. The recurrent grounds resulting in a successful appeal were on the “basis of procedural irregularity where the court had failed to comply with its duty to consider the vulnerability of a party or a witness, and to then, in turn, hold a ground rules hearing and consider what, if any, participation directions should be made.”[8] Mrs Justice Theis DBE also drew attention to the fact that neither party’s legal representative raised this as an issue and these requirements “should now be embedded in the legal landscape of these cases to ensure the important safeguards they provide are kept under active review.”[9]

The appeal was allowed on grounds 1 and 2 and the detailed reasons are set out at [37]. As the appeal was successful on these grounds, it was deemed not necessary to consider the last ground. The reasons are in summary;

1. No ground rules hearing took place nor was it considered;
2. This lack of consideration, it left a gap in the safeguards for a vulnerable witness;
3. At no point did the court consider or address any participation directions for a vulnerable witness, whether needed or not;
4. Allegations involved intimate details of the parties’ relationship;
5. No consideration was given to the video evidence; and
6. The totality of failing to consider Part 3A and the lack of consideration of the mother’s vulnerability resulted in the hearing being unfair.

This appeal, together with the decision in Re M, provide a helpful summary of the law in relation to vulnerable witnesses for practitioners. Further, it highlights a duty, not only for the court, but also representatives to ensure that this issue is continually reviewed throughout proceedings. There have been increasingly more and more cases that invoke Practice Direction 12J, where the nature of the allegations involve witnesses that fall into the category of being ‘vulnerable’. Therefore, the judgment of Mrs Justice Knowles in Re M and the principles set out in this appeal should remain at the forefront of practitioners’ minds when involved in such cases.

[1] D v R [2023] EWHC 406 (Fam) (24 February 2023) (bailii.org)

[2] FPR rule 30.12 (3)

[3] B v B (Residence Orders: Reason for Decision) [1997] 2 FLR 602

[4] Royal Bank of Scotland v Carlyle [2015] UKSC 13

[5] Re S-W (Care Proceedings: Case Management Hearing) [2015] 2 FLR 136

[6] G v G (Minors: Custody Appeal) [1985] 1 WLR 647

[7] Matrimonial and Family Proceedings Act 1984

[8] [34]

[9] [35]