This is an interesting appeal, heard in the High Court by Mrs Justice Judd DBE.
M (A Child)  EWHC 3225 (Fam) (01 December 2021)
For background “Special measures” is the blanket term given for a range of solutions which can be applied to assist a witness considered to be vulnerable, particularly in a case where there are allegations of abuse from one adult towards that witness. For example, giving evidence behind a screen or by some sort of video-link, ground rules about being able to communicate that a break is needed and so on.
This case was a private law case, involving arguments about where M who was two years old should live and how she should spend time with her parents. As part of that, allegations of very serious sexual abuse from the father towards the mother including an allegation of rape were made.
In this case, at the fact finding hearing, there were no preliminary applications for special measures, nor any consideration of the possibility that such measures might be required.
At the conclusion of the finding of fact hearing, the Judge found that some of the allegations made by the mother were not proven by her and thus (as the law is binary) did not occur.
The mother engaged a fresh junior barrister and Queen’s Counsel for her appeal. The appeal was on two limbs – that the judgment was flawed in its analysis and conclusions and that the Court had failed to consider whether special measures were required and that this failure rendered the process and hence the conclusions unfair. As part of that, they also argued that the extent to which mother’s sexual history was the subject of cross-examination was excessive and that a special measures hearing would have properly addressed that in advance.
The father opposed this, arguing that those representing the mother at the hearing had not raised with the Court any suggestion of special measures and they could not point to any evidence that the lack of them had been detrimental to the mother.
The Court looked at the rules in relation to vulnerable witnesses, and referred to the new statutory provisions which had not been in place at the time of the fact finding hearing
25. Since the hearing at first instance in this case, Parliament has passed the Domestic Abuse Act 2021, which includes s63 which provides that where a person ‘is, or is at risk of being, a victim of domestic abuse’, the court must assume that their participation and evidence will be diminished by reason of vulnerability. This triggers arrangements for participation directions or special measures, and is formally adopted into the Family Procedure Rules 2010 as rule 3A2A
The High Court considered that these Rules had not been properly followed:-
It does not appear from any of the orders that the question of participation directions was considered or determined by the court. The provision that the mother and father should attend court on different days to give evidence appears from the wording to have been made in order to meet the restrictions on too many parties being in one room as a result of Covid.
The provisions of rule 3A and PD3AA are mandatory. The word used is ‘must’ and the obligation is upon the court, even though the parties are required to cooperate.
Rules 3A.4 and 3A.5 required the court to consider whether the mother’s participation in the proceedings was likely to be diminished by reason of vulnerability both when giving her evidence and otherwise. There can be no doubt that the mother came within the category of those who might be vulnerable, as someone who was alleging domestic and sexual abuse.
The mother was fully represented throughout the proceedings, but the obligation to consider vulnerability is upon the court. I entirely accept Mr. Tyler’s submission that counsel for the mother (and possibly the father too) would be expected to remind the judge(s) of this, and that (as privilege has not been waived) we cannot know whether or not there was a conscious decision not to ask for special measures. These points do not, however, relieve the court of the responsibility it has been given under the rules. Whilst I also take note of the the dicta of May LJ in Jones v MBNA Bank  EWCA Civ 514, as cited to me, there is a fundamental difference between the situation there and this one.
This was a very sensitive case where there were allegations of the utmost seriousness. They were of two rapes whilst the mother was under the influence of sedation and either drink or drugs respectively, and a third of anal rape when she was eight months pregnant. She also made overarching allegations of controlling, manipulative and intimidating behaviour on the part of the father.
The mother produced some explicit videos in support of her allegations of rape. In response the father filed a witness statement setting out detailed evidence of the mother’s sexual activities, including numerous screenshots of her naked and masturbating with him watching. He produced a large number of explicit videos of their consensual sexual activities, and argued that her activities as a ‘cam girl’ demonstrated that, far from being intimidated into sexual acts by him, (including being videoed) she was confident, adventurous and open about her body. The court bundle for the trial contained several large pornographic photographs of her and several more small ‘stills’ exhibiting videos. She was asked about these matters extensively as part of the father’s case that the sexual relationship between them was an equal one. Her case was that she was doing this to please him and keep him.
There was evidence, that the judge referred to, that the mother had some long term underlying fragilities, and that she was anxious. In one of his statements the father said that he ended the relationship because the level of emotional and psychological support she needed was very frustrating and emotionally exhausting.
It must be clear from the matters I have set out above that this was a case which cried out for participation directions and a ground rules hearing, not just for the sake of the mother, but for the integrity of the court process itself. The purpose of the rules and Practice Direction is to avoid the quality of the evidence being diminished. Here, the need for directions went beyond the need to consider whether the parties should not come into physical contact in the court room or building. Matters, such as whether the mother should be visually shielded from the father as she gave her evidence, and what topics should be covered in cross examination, were highly relevant.
The Court held that the appeal on both limbs should be granted and the case submitted for re-hearing.
It flags up the very important issue that even where a party does not apply for Special Measures or raise them as an issue, the Court must itself be alive to the issue and actively consider whether there are vulnerable witnesses and ask for the assistance of the advocates and parties in determining what special measures should be in place.
This was very obviously a case where special measures were likely to be appropriate and had they been applied for been likely to have been granted, but the failure or decision on behalf of the mother’s team not to do so did not prevent them from successfully appealing the findings of fact made as a result of a flawed process.
Whilst this arose in private law proceedings, the same principles will apply in public law proceedings and those advocates who are representing parties to those proceedings will need to ensure that the issues are properly ventilated and addressed, even if they do not materially affect their own client, to avoid the risk of an appeal.