Vulnerable Witnesses

This article is designed to provide a useful guide to the subject of vulnerable clients and witnesses.  

Vulnerable Clients

As Solicitor Advocates, we are the main link between the Court and our clients.  It is therefore a key element of our role that we are able to identify at an early stage any vulnerabilities from which our client may be suffering and may therefore place them at a disadvantage in providing us with their instructions and presenting their case to Court.  

The criminal Courts are already well advance in ensuring that witnesses’ vulnerabilities are identified and appropriate support put in place. The family Courts are now becoming increasingly aware of the need to ensure that vulnerable witnesses (whether these are parents, children or witnesses generally) are properly supported in the court process.

This article will focus on public law but the principles apply equally across the board to all types of family cases.  

If a client has filed a statement in any proceedings, they may need to give evidence. When we ask questions of the client in drafting their statement, we must always bear in mind the specific needs of the client. Vulnerabilities can come in many forms, some of which may not be immediately recognisable.

An obvious category of a vulnerable client or witness group are children, non-capacious clients, clients that have been assessed as either learning disabled or suffering from learning difficulties and clients suffering from Autistic Spectrum Disorder. 

We may also have a client who is particularly vulnerable because he or she has been the victim of domestic abuse, sexual abuse or suffers from poor mental health.

We will often be the first lawyer that the client has ever met. From the outset, it is therefore essential that we gain a full understanding of the client’s case, to include any previous or existing medical diagnoses, a referral to support agencies (such as Women’s Aid or the Adult Learning Disabled Team of the Local Authority) and at the same time assess the client’s ability to provide us with clear instructions and understand our advice. 

It may be that the client has been involved with the Local Authority for a number of years and their vulnerability has not been picked up. We recently represented a client whose family had been subject to Child Protection Plans for several years, during which an assessment of our client’s cognitive ability had never been assessed. Once the Local Authority had issued proceedings, it was apparent that our client was having difficulty in providing us with instructions and a psychological assessment was therefore undertaken of her. It transpired that she was in fact “learning disabled” and therefore required the assistance of the Official Solicitor (see below). Thankfully, we not only successfully opposed the Local Authority’s application for the children to be removed from her care but now that she has the support in place, the children remain in her care.

Children

When we are representing children, we must assess whether they have sufficient understanding of the case to provide us with their instructions. In Public Law proceedings, they will inevitably be represented by a Children's Guardian. We should nevertheless continue to take instructions directly from the child (and not the Children's Guardian) where we have assessed the child as having the necessary capacity. Otherwise, we take our instructions from the Children's Guardian.  

In a Private Law case, the joining of the children as parties may arise as a result of an appointment under Rule 16.4 Family Procedure Rules 2010, in which case the Children's Guardian will be appointed to represent their best interests and also a Solicitor who will first assess whether instructions can be taken directly from the child. In some circumstances, it is also possible for the child to make an application (e.g. for a contact order to see his or her siblings). Whenever we represent children, we must ensure that the Solicitor with conduct of the case is a member of the Law Society’s Children Panel.

There are now strict guidelines in place for Advocates when a child is giving evidence. This is a specialist piece of work and we must therefore ensure that the Advocate has the necessary expertise when we are involved in a case where a child is likely to give evidence. 

Victims of Domestic Abuse

We may often need a support worker from a local domestic violence project to assist our client when we take instructions and when he or she attends Court.  There are many special measures that we can request from the Court, to include a separate waiting room, a screen (when giving evidence), a refusal to be questioned by a litigant in person (unless advance notice of the questions have been provided and the Judge has agreed to assist in the questioning by the litigant in person). In addition, it may be that due to the client’s emotional state, we will need to request frequent breaks as the Court can often sit for hours on end and a witness being cross-examined at length as a result. 

Mental Health Patients

We need to be particularly aware of how a client suffering from a mental health condition may present on a particular day. We should always therefore obtain and read our client’s medical records and seek advice on how our client can be best supported and managed through the Court process.  

We should also be aware of the symptoms and behaviours which are likely to indicate a client is becoming distressed or angry and if necessary ensure that a number of short appointments are made for the purpose of taking the client’s instructions and going through documents.  

A number of our clients are likely to be suffering from anxiety and/or depression, not least due to the circumstances that have led them to instruct us. We not only need to be aware that such clients will need a patient and claim approach from us but we will need to often summarise their instructions and our advice to ensure they have understood what has been said. In every case, we should always confirm all our clients’ instructions and the advice we give them in writing. 

Also, beware of a client presenting as flat in mood; this may be attributable to the medication they are taking, which increases the need for us to ensure that they have retained the information and advice we have given them.  

Clients with learning difficulties or who are learning disabled

We will need to know the extent of the client’s learning difficulty as soon as possible and certainly within weeks from the outset of their case. This will usually be by way of a psychological assessment or an existing report. The information that we should glean is their reading age, are they literate? Does the client have a proper understanding of time? What are their verbal skills? Are they capable of understanding advice?  If so, how should we provide such advice?  For example, we may need to use visual aids or draw pictures and in many cases use straightforward language which does not comprise words which are difficult to read.  

If a client has to give evidence, we should make sure that other advocates involved in the case do not overstep the mark and any questions asked of our client are broken down into simple sentences and our clients are given sufficient time to answer any questions.  

Clients without capacity

We cannot take instructions from a client who has been certified as lacking capacity.  At the commencement of a case, we will therefore normally invite the Court to direct a psychological assessment of our client to include an assessment of our client’s ability to instruct a Solicitor directly. If the outcome of the assessment is that our client lacks capacity, we must identify a litigation friend who can assist our client in the presentation of his or her case. This litigation friend will need to be objective, trustworthy and have our client’s best interests at heart. If such a person is not available, we will need to ask the Court for a direction that the Official Solicitor be invited to act on behalf of our client instead.  The procedure for doing so doing is set out in Practice Direction 15A of the FPR 2010. 

Clients suffering from Autistic Spectrum Disorder

We will need to understand the client’s specific traits which will necessarily involve our speaking to a parent or carer or someone else who has had in depth experience of our client and his or her particular needs. We will need to adapt both our oral and written communications and be guided by those closest to our client as to how this can be best achieved.    

Ensuring our vulnerable clients are properly represented in court

An excellent online resource is the Advocates Gateway (www.theadvocatesgateway.org).  This has a useful number of “toolkits” available, each of which provide information about the various types of vulnerability and the support that can be put in place.  

If we are representing a client who is presenting as vulnerable, we should ask the Court for a ground rules hearing (see below). If we believe that our client’s needs are such that he or she is likely to experience difficulty in providing or giving evidence, we will have usually obtained a cognitive assessment as part of the psychological assessment. This assessment may well indicate that our client would benefit from the appointment of an intermediary.  

Procedure for the appointment of an intermediary

A number of us have already been involved in cases were an intermediary has been appointed to assist our clients. There are a number of steps involved as follows:

1.         We should have already obtained an expert psychological assessment confirming that our client suffers from low cognitive functioning. In such cases, we will need to invite the Court to direct an intermediary assessment. It is important that you note that the Legal Aid Agency will not fund either the assessment or the cost of an intermediary once appointed. These costs therefore need to be borne by the Courts (HMCTS) and most Judges are aware of this.  

2.         Once we have secured the direction for an intermediary assessment, we will need to identify an approach and an organisation which carries out such assessments.  There are a number of such organisations available who will send us an assessment questionnaire for completion and return, together with an estimate of their likely costs. This should be sent to the Court for prior approval and once approval has been obtained, the assessment can take place. As part of the assessment process, the organisation will need to meet with our client, usually at one of our offices and within seven days will provide a report making various recommendations.  

3.         Once the assessment has been received, it will quite often make a recommendation for the appointment of an intermediary. If there is not already a directions hearing listed, we will need to file and application for the appointment of an intermediary and seek an urgent hearing. Some Courts are willing to deal with such applications in writing by way of a Consent Order but any order must include a direction that the costs of the intermediary will be met by HMCTS.  

4.         If the Court agrees to the appointment of an intermediary, funding will usually only be available for the intermediary to attend Court hearings. It is therefore important that all dates are agreed with the intermediary in advance. 

5.         The Court will also arrange a ground rules hearing so that the special measures recommended by the assessment are put in place for subsequent hearings.  

We should be aware that in approximately 25% of cases, the appointment of an intermediary will not be recommended.  Further, when our client has been assessed as lacking capacity, the Official Solicitor will usually ensure that our client’s interests are protected by instructing us to put in place the necessary measures, if for example, our client has to give evidence.

Organisations which we can currently recommend include Communicourt and Triangle, the latter of which specialises in working with children. The NHS is also providing speech and language therapists as part of several pilot schemes running throughout the country.  

Ground rules hearing

Before the main trial, the Court will consider what special measures are needed to be put in place at the grounds rules hearing. Such measure can include the following:

 
• When and where the intermediary will take the affirmation;
 
• The timing and management of breaks;
 
• How the intermediary will signal to the Judge for an unscheduled break;
 
• Whether a room needs to be booked for the use of the client during breaks;
 
• The provision of written documents, prior to the evidence being presented in court;
 
• If, and how often, the Judge would like to be updated as to the client’s understanding and effectiveness of strategies that have been put in place;
 
• What measures need to be put in place for the client giving evidence; 
 
• Whether questions to be asked of the client need to be provided in advance of the hearing and reviewed by the intermediary.
 

As the family Courts become more attuned to the needs of vulnerable witnesses, the process of asking for special measures should become much easier. Until then, we need to be alive to the particular needs of our clients and make sure that their rights are protected and the necessary support put in place throughout their case.