Vulnerable Witnesses & Parties

Dealing, as I do, almost exclusively with Child care cases brought to Court by Social Workers, I often have Clients or witnesses who have vulnerabilities. Child care cases are often in Court because of those vulnerabilities impacting, or allegedly impacting, upon the welfare and upbringing of children.

The Court recognises such issues and to ensure that everyone is treated fairly there are a whole raft of measures and procedures that need to be put in place.

The fact that a parent may have vulnerabilities does not mean automatically that they cannot bring up children to the standard that the law requires and it certainly does not mean that they cannot have a fair hearing and be properly included in the process.

Often, the first issue that is raised is whether a parent has the ability to understand the proceedings and to give proper instructions, having made decisions, to a Solicitor acting on his or her behalf. In such circumstances it is the Solicitor generally who sounds the alarm following a meeting with the Client which raises the Solicitors cause for concern.

I am talking about an issue which the Lawyers call ‘ litigation capacity’. The procedures to be followed in these situations are set out in an Act of Parliament called the Mental Capacity Act 2005. That does not require a person to be mentally ill.

It starts by making it clear that a person is assumed to have capacity unless and until it is established that the person doesn’t. It goes on to explain that a person is not to be treated as unable to make a decision unless all reasonable steps have been tried to help that person but failed and that simply making unwise decisions is not sufficient to allow a Court to treat a person as lacking capacity

Neither can age or appearance be relied upon to assume a lack of capacity.

A person is considered to be unable to make a decision if he or she is unable to understand the information relevant to the decision or retain that information or to evaluate that information or communicate his or her decisions in some way. He or she needs to be able to consider the consequences of making or failing to make a decision on any given point.

If alarms are sounded, a Psychologist or Psychiatrist would be appointed to confirm the position one way or the other and if the person is found to lack litigation capacity his or her Lawyer would normally take instructions via the Official Solicitors Office and not directly from the Client although the Clients wishes and feeling would always be considered. The Official Solicitors office and its remit can be considered at a later date.

Where a person has capacity but has other vulnerabilities which will impact upon that person fully participating in the Court proceedings and having his or her case fully and fairly considered, the Court can adopt a whole raft of measures to assist that person known as ground rules. Those measures are limitless and will be decided upon by the allocated Judge but may include; lay advocates or other persons sitting with the vulnerable person to assist in understanding and explaining what is happening, screens to keep persons whether parties or witnesses out of the sight of other persons involved in the case with separate entrances and exits to and from the building or not physically attending Court and instead giving evidence by video link . Children might be video’d in advance being asked set questions, approved by the Judge. It might include interpreters, deaf signing experts, lip reading experts, hearing loops, regular breaks to give the vulnerable person time to absorb and digest what is going on, documents in Braile, wheelchair access etc,etc.

As you will see, the Court can work fairly with people with fears, low cognitive functioning levels, low IQ, physical impairments and children.

Any matters of concern can be taken into account and accommodated.

Real problems can however occur when a person has vulnerabilities but doesn’t recognise or accept that and that will be the subject matter of my next blog