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Vulnerable witnesses and parents article 6 rights

 

 

This is a big case anyway, but it particularly struck a chord with me having heard Penny Cooper speak very eloquently at the Westminster Policy Forum yesterday on the shabby way vulnerable witnesses are treated in care proceedings as compared to criminal proceedings.

 

The Court of Appeal in Re J (A child) 2014 overturned a finding of fact by Pauffley J that a vulnerable witness X had been sexually abused by the father in private law proceedings. This had become pertinent in the private law proceedings because X had contacted the mother and told her, and the mother had decided that if what X said was true, the mother didn’t want father around the children.

http://www.bailii.org/ew/cases/EWCA/Civ/2014/875.html

 

The witness in question, X, had been the subject of litigation that went all the way up to the Supreme Court, on the issue of whether father was entitled to see the details of what the allegations were, you may remember it

 

Re A (a child) 2012   http://www.bailii.org/uk/cases/UKSC/2012/60.html

 

The lawyer representing her, Sarah Morgan QC was arguing there that the prospect of X giving evidence in her circumstances was so traumatic that it amounted to an article 3 inhuman and degrading treatment breach.

 

The expert evidence about X was this

“It is my opinion that disclosure of the social services records regarding X to other parties would be potentially detrimental to her health. As above, she appears to manifest psychological distress in physical terms both through medically unexplained symptoms and through the well recognised exacerbating effect of stress on a particular medical disorder. Her physical health has deteriorated considerably recently and, at times, has deteriorated to the point of being life-threatening. There is therefore a significant risk that exposure to further psychological stress (such as that which would inevitably result from disclosure) would put her at risk of further episodes of illness. It would also be working against the current therapeutic strategy of trying to help minimise stress and engage with psychological therapy.”

The Supreme Court didn’t go that far, but were sympathetic

 

This was what happened in relation to X’s evidence at the finding of fact hearing.

 

  1. In the light of the advice of Dr B, X gave evidence in the proceedings over a video link. Throughout she was supported by a trained registered intermediary who sat in the video room with her. It was planned that X would give oral evidence over the course of the Monday and the Wednesday during the first week of the hearing. However, for much of the morning of the first day X felt unable to contemplate answering questions and required discussion with and encouragement from her legal team assisted by the intermediary. Her evidence in chief, which was punctuated by breaks to enable X to re-gather her confidence, occupied the remainder of the first day and much of her second day in the witness box. Frustratingly, the first day of evidence coincided with what the judge described as “quite appalling noise disturbance” coming from road-works outside the video room window.

     

  2. During the morning of the second day a further difficulty occurred. One of the clear ground rules established for the giving of X’s evidence was that at no time should F see X on the television screen. F failed to abide by this ground rule and, on being spotted by the judge craning forward to see X, the evidence was abruptly curtailed. The effect of this event upon X is described by the judge as being “considerable” and that “thereafter, progress was painfully slow”. In the event the judge decided that F should leave the court room. However, by that stage X had become distraught and had locked herself in the lavatories in the court building and was refusing to come out. The court therefore adjourned for the rest of the morning hoping that X’s testimony could be resumed after lunch. X’s evidence in chief then continued until shortly before 3.30 p.m. Thereafter, following a short break, counsel on behalf of F cross-examined for something short of one hour. At 4.25 p.m. the judge concluded the process for the day and also concluded that “it would have been inhuman to have required X to return for a third day”. Cross-examination on behalf of F was thereby cut short and ended at that point. There was also no cross-examination on behalf of the guardian.

 

Clearly the process was pretty ghastly, and also it is clear that the father did not get to have all that he wanted to put to X in cross-examination put to her.

 

This is what Pauffley J said about X’s evidence

 

  1. Under the related heading of “X’s presentation at this hearing” the judge went on to describe X’s presentation during her evidence in striking terms:

     

    “I should say at once that I have never before witnessed anyone of any age demonstrate such emotional turmoil and distress whilst participating in a court hearing. If one phrase encapsulates the whole experience, it is that watching and listening to X was harrowing in the extreme.”

  2. That observation, coupled with the detailed description that the judge gives in the ensuing paragraphs, is a matter to which I give the greatest regard. This court frequently, and rightly, reminds itself of the substantial premium that must attach to the analysis of a trial judge who has had the experience, not available to those who sit on appeal, of observing the key witnesses give their testimony live at the court hearing. When the judge in question is a tribunal of the experience and standing of the judge in the present case, the level of respect and the premium that attaches to her observations must be of the highest order.

 

When a High Court family Judge describes hearing evidence as harrowing in the extreme, that is not something one can take lightly. The tolerance that High Court judges have for hearing things that would make most people faint or run out of the room to avoid is very high indeed.

 

Sarah Morgan QC described the process of X’s evidence like this

Miss Morgan submitted, and I readily accept, that the transcript of X’s evidence gives no real impression of the quality of her presentation over the video link. She told the court, and again I accept this, that this case was one that would stay in the minds of all of the professionals who had been in the court room “for decades”.

 

The whole thing was rather compounded by the father not being able to get legal aid, for one reason or another, and then that the barrister paid for by the Local Authority to represent him  (as the alternative would have been him cross-examining X himself) not realising until very late on that she was in conflict and someone fresh having to pick up the papers.

 

During the fact finding hearing, the Guardian’s team took on an almost amicus role to assist with this, putting both sides of the case and making extremely detailed submissions of the pros and cons of the evidence and the considerations that the Judge had to make.

 

And did so similarly at the appeal

On behalf of the children’s guardian Mr Paul Storey QC and Ms Camille Haboo have, through their submissions, continued to provide the court with assistance which is of the highest quality. At the stage of the conclusion of their written submissions they retained a neutral position as to the outcome of the appeal. Their helpful oral submissions included the following points:

 

a) In a case where there is no direct physical evidence or other clear “diagnostic” proof of sexual abuse, the process of judicial evaluation requires great subtlety;

b) There was an inevitable imbalance in the court process as a result of the inability of any party to cross-examine X;

c) There was a need for the judge, who obviously found X to be a very impressive witness, to exercise caution in relying upon such an impression where the full process of ordinary forensic evaluation has not been seen through;

d) Where, as here, the process of cross-examination has been halted, it is incumbent upon a judge to explain the approach that she has adopted to that factor in her overall evaluation. That is especially the case where the alleged perpetrator is a litigant in person for much of the hearing;

e) The fact that F was a litigant in person meant that he had no one to call him to give evidence in chief, he had to undertake his own closing submissions and was therefore much more on display before the judge than would be the case if he were represented.

 

 

Where the Court of Appeal were critical of Pauffley J was that in her analysis of the factors, all of them were factors which were supportive of the findings being made and none setting out that counterbalance of the reasons not to make the findings and particularly not the difficulty in X’s evidence and the risk of placing weight on the emotional content and impact on it over and above the forensic issues.

 

  1. Despite the very valuable support given to X by NM, a registered intermediary, who was described by Pauffley J as extremely impressive, it is clear that X found the process of discussing these matters to be highly distressing. As I have explained, her evidence was halting, truncated by the need for breaks and, in the end, concluded in the early stages of questioning on behalf of F.

     

  2. Within this appeal, no criticism has been made of the sequence of decisions which led to the choice of these particular arrangements, as opposed to other less direct methods, for the court to receive evidence from X. As Baroness Hale explains, in any case there will be a scale of options, running from no fresh input from the witness into the proceedings, through written answers, video-recorded questioning by trained professionals or live questioning over a video-link, to full involvement via oral evidence given in the normal forensic setting. The aim, again as Baroness Hale says, is to enable witnesses to give their evidence in the way which best enables the court to assess its reliability. It must be a given that the best way to assess reliability, if the witness can tolerate the process, is by exposure to the full forensic process in which oral testimony is tested through examination in chief and cross-examination. Just as the sliding scale of practical arrangements rises from ‘no fresh involvement’ to ‘the full forensic process’, there will be a corresponding scale in which the degree to which a court may be able to rely upon the resulting evidence will increase the nearer the process comes to normality. In each case, where a vulnerable witness requires protection from the effects of the full process, it will be necessary for the court to determine where on the scale the bespoke arrangements for that witness should sit with a view to maximising the potential reliability of the resulting evidence, but at the same time providing adequate protection for the particular vulnerabilities of that witness.  
  3. Where special measures have been deployed it is, however, necessary for the judge who is evaluating the resulting evidence to assess the degree, if any, to which the process may have affected the ability of the court to rely upon the witness’ evidence. Where, for example, the witness has simply been unable to play any active part, the court will be required to fall back upon hearsay records of what has been said outside the court context on earlier occasions and without any challenge through questioning.  
  4. In the present case it is clear that even the process of X giving evidence in chief encountered a range of difficulties, some entirely outside the court’s control, which made progress painfully slow and, at times, came to a halt. Cross-examination was very limited and was, for good reason, brought to a premature conclusion. Despite these difficulties, which the judge describes in full, the judgment does not contain any evaluation of the impact that this compromised process had upon the court’s ability to rely upon the factual allegations that X made within her evidence as a whole. This was a case where, partly as a result of the limitations on her ability to give evidence in the normal court process and partly because of the difficulty in fully understanding what she was explaining, the court only experienced X’s account ‘through a glass darkly’ because of the number of filters (both psychological and forensic) in place between X and the judge. In assessing the reliability of X’s account it was, in my view, necessary to acknowledge these difficulties and give them appropriate weight within the overall analysis.

 

 

 

The Court of Appeal felt that they had to overturn the findings

  1. It is with the heaviest of hearts that I now contemplate the conclusion that must inevitably flow from the serious detriments that I have identified in the fact finding analysis conducted by Pauffley J in this case. My reluctance arises primarily from consideration of what must follow from a decision to allow this appeal, thereby setting aside the judge’s finding of sexual abuse. I have also, at every turn, been acutely aware of Pauffley J’s enormous experience of conducting these exquisitely difficult cases.

     

  2. Despite giving every possible allowance for the factors that I have identified which either support the judge’s finding, or properly caution against the appellate court from interfering with that finding, for the reasons that I have given, the judge’s determination cannot be upheld. In summary the factors that have led me to this view, taken together, are:  

    a) The only evidence of sexual abuse came from X’s accounts given in 2009/10, as confirmed by her to be true during oral evidence. No other evidence directly supported or corroborated X’s allegation of sexual abuse. The evidence around the ‘trigger event’ established that, in at least one central respect, X’s accounts in 2009/10 were not reliable. Whilst the unsupported testimony of a single complainant is plainly capable of establishing proof of what is alleged, where, as here, there were a number of factors that detracted, or may have detracted, from the degree to which reliance could be placed on X’s testimony, a finding of fact should only be made after those factors have been given express consideration and due weight in the judicial analysis.

    b) X’s emotional presentation in 2009/10 and over the video-link was a relevant factor, but the weight given to the emotional presentation was unjustified and was disproportionate in the absence of a corresponding analysis of the detail of what she was actually saying together by undertaking a process, similar to that presented on behalf of the guardian, of balancing the factors either for or against the making of a finding.

    c) Once it was established that the ‘trigger event’ of X informing M had never occurred, despite being reported by X on a number of occasions in 2009/10, it was necessary to conduct a full appraisal of the impact of that highly material change in X’s account.

    d) The judge’s conclusion that the ‘prohibitions’ went so far as to provide a ‘complete answer’ to the lack in X’s account of any of the detail identified by Mr Storey was a conclusion that was unsupported by any expert evidence and was not open to the judge. This is particularly as the ‘prohibitions’ themselves were shadowy and only partially understood.

    e) In the light of the expert evidence concerning the difficulty encountered in determining a psychological link to X’s physical symptoms, and, particularly where some of those symptoms may be consciously generated, great caution was needed before concluding that X’s account provided a reliable foundation for the finding of fact.

    f) The judicial analysis should have included assessment of the impact of the lack of any ABE interview and/or narrative statement in 2009/10.

    g) The judicial analysis should have included assessment of the impact of the, necessarily, limited forensic process around X’s oral evidence.

  3. In the circumstances, the appeal must be allowed and the judge’s findings of fact set aside.

 

 

Lady Justice Gloster went even further and accepted the submissions made by father that the process had been a breach of his article 6 rights

  1. However I should also add that I accept Ms Branigan’s submission (as referred to at paragraph 52 above) that the trial procedure, so far as F was concerned, was unfair to him.

     

  2. The allegations being made against him were extremely serious. If established they might well have led to him being deprived of contact with his daughter, to the possibility of criminal proceedings against him, and resulted in an indelible scar to his reputation and character, with potential consequences for his future employment and personal relationships.  
  3. Whatever the difficulties surrounding X’s position as a witness, F was nonetheless entitled to a fair trial of these allegations. For the following reasons, in my judgment he did not receive one:  

    a) First, there was no equality of arms. For various reasons, he received no legal aid, and the only legal representation which the local authority agreed to fund was a barrister solely for the anticipated 3 days of cross-examination of X and her mother (see paragraphs 17 and 18 above). This might be thought to have been designed more in order to protect X from direct cross-examination by F, than for the purpose of assisting F in the presentation of his case.

    b) Second, because of the conflict of interest problem (see paragraph 19 above) his counsel was instructed on absurdly short notice for what was, necessarily, going to be an extremely difficult cross-examination.

    c) Third, whilst one can readily understand the reasons why the judge terminated X’s cross-examination, the consequences of that decision so far as F was concerned were clearly highly significant. In my judgment the judge should, at the very least, have considered whether in those circumstances, where there had been no full or adequate cross-examination of X on behalf of F, it remained possible to reach any fair outcome of the determination of the issue so far as F was concerned.

    d) Finally, F’s exclusion from the court room when X was being cross-examined, meant that it was extremely difficult for him, when he came to make his final submissions, to know what X’s evidence had been. I find it difficult to understand how he was expected to have successfully deployed what his counsel may have told him about X’s evidence in his own final submissions as a litigant in person. Whatever the perceived egregiousness of F’s conduct in “craning his neck” to see X on the screen, I cannot believe that practical arrangements could not have been made which would have enabled him to remain in the court-room but nonetheless would have prevented him from repeating his attempts to see X on screen. To exclude a litigant in person from the courtroom in such circumstances was a very serious step.

  4. It is obviously important in trials with vulnerable witnesses that the trial process should be carefully and considerately managed in such a way as to enable their evidence to be given in the best way possible and without their being subjected to unnecessary distress. But that should not come at the price of depriving defendants and others, who claim that they have been falsely accused of criminal conduct, of their right to a fair trial in which they participate and a proper opportunity to present their case in accordance with natural justice and Article 6 of the European Convention on Human Rights.  
  5. It does not surprise me that, in the light of the history of this litigation, F has on occasions, as set out in paragraphs 133-136 of the judge’s judgment, expressed his dissatisfaction with the court process in strong, emotional terms. That should not, in my view, have been relied upon by the judge (as it apparently it was at paragraphs 133-137 of her judgment) as a basis for reaching adverse findings as to F’s credibility. It is not difficult to see, given the long history of this matter and the actual and potential personal consequences for F, why he might have found it difficult to refrain from making comments of this sort, or might have behaved in an inappropriate manner in what no doubt he perceived to be a hostile court environment.  
  6. Whilst I consider that the trial process was unfair to F, it is not necessary in the light of the Court’s main conclusion in relation to the inadequacy of the evidence upon which the judge based her conclusions, to consider whether this ground alone would have sufficed as a reason for allowing this appeal.

 

 

The question then arose as to what the Court of Appeal should do. The idea that the case would be reheard seemed deeply unattractive to everyone – I’m sure that the advocates involved did not relish the idea of taking X’s evidence again

  1. Finally, there is a need to determine whether a re-trial of the issue of sexual abuse should now take place. For my part, and in the light of the material to which this court has now been exposed in full detail, and even allowing the fullest justifiable weight to X’s demeanour, I do not consider that a finding of fact against F was open to the court on the evidence as a whole.

     

  2. It seems highly unlikely that X will be able to engage to a greater extent in the forensic process than she did before Pauffley J; indeed powerful submissions were made by Miss Morgan and by M to the effect that it would be abusive and/or untenable to expect X to take part in a further hearing.  
  3. In the circumstances, and whilst fully accepting that this leaves A, M, and indeed F, in the very difficult situation that M so clearly described, I consider that no greater clarity is likely to be obtained by a retrial and that this court should therefore now put a stop to the evaluation of X’s 2009/10 allegations within these proceedings.  
  4. As a result, the private law proceedings relating to A must now proceed on the basis that there is no finding of fact against F (arising from X’s allegations). The Family Court will therefore make any determination as to A’s welfare on the basis that F has not engaged in any sexually inappropriate behaviour with X.

 

 

This all leaves vulnerable witnesses very erm, vulnerable. X was about as vulnerable as anyone could get, as a reading of Re A would show – she was almost suicidal at the idea of father even seeing what she had said about him, let alone giving evidence. She had strong expert evidence about the harm that the process might do to her. I never felt reading Re A that she would get anywhere near to giving evidence.

But she did so, and the measures that the Court put in place still weren’t enough.

Adding what we know about X from Re A with the judicial comments that the process of her giving evidence was harrowing in the extreme almost turns your stomach, even at this remove.

And the remarks of Lady Justice Gloster even call into question whether a Court can safely make those protective measures without risking an article 6 breach.

 

So where does this leave a vulnerable witness who doesn’t have such a compelling and rich case as to vulnerability as X did here? I know that the President has been speaking about this issue, and I’m sure that some guidance is going to come our way. (For once, this is a piece of guidance that I will welcome, as I think Re J throws huge doubt on where a Judge should draw the line between protecting the witness and protecting the article 6 rights of those accused)

 

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Vulnerable witnesses revisited

The Court of Appeal have looked again at a case involving the issues of a vulnerable adult giving evidence.  Re M (A Child) 2013

Sadly, given how often this crops up, they have not given any generic guidance for the Courts to apply, but the case throws up some interesting issues.

http://www.familylawweek.co.uk/site.aspx?i=ed111952

 

The issue related to a finding of fact hearing, where the father was one of the adults “in the frame” for causing the injury to the child.  Noting his cognitive difficulties, a cognitive assessment was undertaken of him.

 That concluded that he was not capable of instructing a solicitor, but was capable of giving evidence. He would not be capable of providing a narrative statement.

 His capacity to give evidence was both fluctuating and deteriorating and before the fact finding hearing, a further updating report on his cognitive abilities was commissioned.

 This arrived the day before the fact-finding hearing was to begin

 

6. Dr North addressed that task, decided that a narrative statement could not be filed and by his report made it very plain that the father’s capacity to testify had deteriorated in consequence of mounting stress and anxiety.  Dr North in his final report was relatively, but not absolutely, clear in his opinion that, whilst the father remained capable of giving evidence, he was to be regarded as a vulnerable witness due to his cognitive difficulties and his level of suggestibility.  In order to help him to succeed in giving oral evidence Dr North suggested some preliminary familiarisation with the setting, but more importantly went on to set out in ten bullet points some pretty fundamental things that should be done if his competence was to be retained; particularly, the seventh bullet point stated:

“He should be offered a ‘supporter’ whilst he is in the witness box who can help him to understand any difficult questions and encourage him to provide accurate answers.”

7. Then, below the bullet points, Dr North wrote:

Mr Smith becomes excessively anxious if he has to speak in front of other people. His anxiety level may lessen if he is made familiar with the court and the court processes. If his anxiety levels do not reduce it will be essential to provide him with additional facilities such as using a screen or a video link. If his anxiety levels are excessively high he will find it extremely difficult to provide evidence; this can be assisted by the provision of screen or video link.”

And then, importantly, in the concluding paragraph:

“Mr Smith is a very vulnerable man and in order to help him to give oral evidence it will be essential that he be provided with an advocate or intermediary in order to help him to negotiate and understand the court processes and proceedings.”

 

Now, obviously, none of this was in place the next working day, and those representing the father made requests that such arrangements be made.

 The Judge rather ‘parked’ that issue, saying well, we will all try, counsel and myself, to make it easy for the witness“, but in the end it is impossible to spell out anywhere in the transcript the judge giving a ruling on the application or saying much beyond that she was minded to, as it were, get on with the case, see how it went and possibly return to the issue at a later stage in the light of the father’s performance. 

 The Court of Appeal describe this as a ‘high risk judicial case management decision’ and of course, not actually determining the application for the steps proposed by Dr North to be taken or not taken, robbed the father of either having those safety mechanisms or being able to appeal the decision for them not to be provided.

This next bit is very peculiar –the Guardian was charged with the role of being the ‘advocate or intermediary’ to help the father in the witness box.

 

The father did testify, but, before he did, an unsatisfactory makeshift was engineered whereby Mr Taylor, who was after all the guardian ad litum, found himself trying to undertake, additionally, the role of being intermediary.  He had no previous experience of that role unlike Dr North.  He had some brief guidance I think from Dr North, but not only was he not a registered practitioner but he was attempting the responsibility for the first time and, fundamentally dangerous, trying to fulfil two functions at the same time; functions that were not mutually complementary and which were liable to take him into conflict between Role A and Role B.

This seems to me to have been an intolerable position both for the father and the Guardian to find themselves in.

At the conclusion of his evidence Mr Taylor registered with the judge how uncomfortable he felt at the end of his endeavour to provide intermediary services.  He said, by way of self-criticism, that he felt that he had failed the father

The Court of Appeal came to the conclusion that the father had not been fairly treated by the process and that his article 6 right to a fair trial had not been properly adhered to, and directed that the finding of fact hearing be re-tried.  [underlining mine for emphasis]

 

21. By way of conclusion, I would like to express my appreciation of the burden borne by  [the Judge] , who is the designated judge in a busy care centre. She has a responsibility for containing delay in these county court cases.  Although this case was not particularly urgent, it was necessary to ensure completion at the earliest viable date.  Had she acceded to Ms Storey-Rae’s application, the consequence would have been months of delay.  So I would wish to be in every way supportive of the judge’s general duty to manage all cases to achieve targets.  I only observe that that general duty cannot in any circumstance override the duty to ensure that any litigant in her court receives a fair trial and is guaranteed what support is necessary to compensate for disability.  It is easy to be critical with the advantage of hindsight, but I do think that the judge fell into error in not ruling specifically on Ms Storey Rae’s application of 13 April.  I think she fell into error in adopting the “let’s see how we get on” management policy.  As I have already observed, it seems to me a dangerous policy because, by not grasping the nettle, it risks having to adjourn not at the optimum moment before the trial is launched, but at a very late stage, when things have run off the rails and then there is simply further wastage of court time.

22. I also think that she was wrong to take the evidence and to endeavour to assess the expert contribution of Dr North when the case was over and done, and then to rule on the issue of capacity.  It seems to me that to defer the ruling beyond the evidence of Dr North and the submissions that followed and to set it in her final judgment was less than ideal.  Finally, I consider that her justification for the course that she had adopted throughout the trial is unpersuasive in that it fails to grapple with core expert evidence from Dr North as to what was essential and to explain why a simple protective measure, like the provision of a screen, had simply not been put in place.  Some steps were taken to ease the mother’s contribution by ensuring sight lines that did not bring her into direct eye contact with the father.  It seems to me almost worse to take steps to assist the mother, who had no particular disability, and not to do more for the father.

23. Whilst it is never attractive to order a retrial of any fact finding investigation, I conclude that we have no alternative, and that is the consequence of finding a breach of Article 6 rights

 

It does seem that the importance of this case will be in those representing such vulnerable persons to secure detailed expert evidence addressing the difficulties of the client in giving evidence and what can be put in place, and in persuading the Court that such recommendations need to be adjudicated on and not merely ‘parked’

 Given what we know of the Legal Services Commission, I am unclear as to how funding to obtain the intermediary or advocate to assist father in the witness box would be obtained, but those efforts would have to be made. It must be manifestly unfair for a party to the proceedings to have to take that neutral role.

How do we deal fairly with vulnerable adults under suspicion?

 

 

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.