It is not uncommon for adults involved in child protection cases to be vulnerable and have their own needs. It is not of course, always the case, but it is not rare. Also, it is not uncommon for adults involved in child protection cases to be facing serious allegations and have to give factual evidence about whether they did, or did not, do something. It is again, not always the case, but it is not rare.
Inevitably then, there will be some overlap, where the person facing very serious allegations and having to give evidence about them is a vulnerable witness.
We have been lacking in guidance about this, save for the Court of Appeal decision that having a vulnerable adult as a potential perpetrator was not sufficient to dispense with the need for a finding of fact determination.
The Court of Appeal has just decided :-
Re M (Oral Evidence: Vulnerable Witness)
I do not yet have a transcript, so this is the helpful summary from Family Law
Court of Appeal, Thorpe, Rimer, Black LJJ, 21 November 2012-11-30
A fact-finding hearing was scheduled to determine whether the father had caused non-accidental injuries to the 18-month-old child. The father was found to have low intelligence and a psychologist recommended that due to his vulnerability, tendency to be manipulated and anxiety of speaking in front of people, special measures should be put in place when he gave oral evidence either by way of video-link or screen in court.
As video facilities were not available the father had to give evidence in court but a screen was not provided and the father’s application for an adjournment was refused. The father’s guardian acted as an intermediary but had no experience of doing so. Following the father’s evidence his representative applied for the trial to be terminated due to an infringement of the father’s rights under Article 6 of the Human Rights Convention. The judge determined that the father had capacity to give evidence and that he had caused the non-accidental injuries to the child. The father appealed.
The appeal would be allowed. While the judge had a duty to manage the instant case in a busy court, that did not override the duty to ensure the father had a fair trial. The judge had erred in failing to specifically rule on the father’s application for an adjournment when it became clear that a qualified intermediary had not been available. Overall the judgment could not stand in light of the breach of the father’s Article 6 rights.
Hopefully, the full judgment will give some guidance to professionals and the Court as to how the article 6 rights of vulnerable adults are to be protected whilst the Court conducts the necessary determination of whether a child has been abused and if so, how that came about.
It raises also interesting questions as to whether a request for a cognitive assessment in cases where a fact finding hearing might be contemplated, should be tailored to include specific questions about giving evidence and any protective measures that should be put in place.