The Court of Appeal recently found that a failure to identify an appellant's cognitive limitations had led to procedural unfairness in a case involving children. Poonam Bhari examines the ruling.
InRe S (vulnerable party: fairness of proceedings); A v A local authority and others  EWCA Civ 8;  All ER (D) 55 (Jan) (Court of Appeal Civil Division) (Baker, Whipple LLJ and Francis J) the appellant’s (A’s) child J, together with his brother, had been subject to a local authority assessment in 2019 due to A’s misuse of ketamine. There had also been concerns about the marks and bruises seen on J by his school. During the few days before the weekend of Saturday 18 January 2020 there were no marks on J. On this weekend J went to stay with the A’s then friends X and Y, who had a daughter S then aged 6½ and of a similar age to J.
When J was returned to A after the weekend break there was a dispute between the adults as to whether any marks were seen on him. Over the following 24 hours X suggested various incidents which had occurred over the weekend, including falling in a ditch while playing in the woods which could have caused the marks.
The local authority undertook a section 47 investigation and J was found to have a total of 23 marks, bruises and abrasions. The view of the examining doctor was that some of the marks were non-accidental and others could have been accidental. When J was discharged from hospital, he and his brother went to stay with their grandparents, but they returned home after three weeks. Meanwhile S moved to live with a maternal aunt. X was arrested, interviewed and released on police bail with no further action in relation to J’s injuries.
In June 2020 the local authority started care proceedings in respect of S and A was joined as an intervener based on cross-allegations made between her and X as to the cause of J’s injuries.
The key issue for the fact-finding hearing in January and February 2021 was the causation of J’s injuries and allegations of domestic abuse by Y towards X and A. In relation to A the issues were not limited and included her misuse of ketamine. An unsuccessful appeal was mounted by A about the scope of the fact-finding hearing. The circuit judge made findings that A deliberately caused physical harm to J and lied about this to establish a case against X and Y, she also found that some injuries sustained by J were accidental.
A appealed the findings against her setting out six grounds of appeal but later amended the grounds to include serious procedural irregularity because she had cognitive difficulties which were unidentified at the time of the fact-finding hearing but came to light in subsequent proceedings started by the local authority in relation to A’s own children. The appeal was opposed on behalf of the local authority and X.
The court allowed A to amend her grounds of appeal and allowed the appeal on the basis of serious procedural irregularity on the basis that A’s cognitive difficulties had not been identified by her legal team (solicitor and counsel), the court or any other party, in advance of the fact-finding hearing, leading to findings that were unsafe. In particular, the circuit judge had in large part based her findings on the quality of A’s evidence, which appeared confused at times and questions were answered in a way that lost the actual question. The judgment of Her Honour Judge Nisa indicated to the court that she had placed a great deal of weight on the manner, demeanour and answers given by A. The Court of Appeal set aside the findings of the circuit judge as A’s cognitive difficulties were not identified and appropriate participation directions were not made, this in turn diminished the quality of A’s evidence leading to a fact-finding hearing that was unjust. The case was remitted to a judge of the Family Division to decide if there should be a rehearing of the fact-finding.
The Court of Appeal considered Part 3A of the Family Procedure Rules, ‘Vulnerable Persons: Participation in Proceedings and Giving Evidence’ introduced in 2017 and supplemented by Practice Direction 3AA (PD3AA).
Before the fact-finding hearing A had appeared able to provide clear instructions to her representatives, but towards the end of it A’s counsel had concerns that her client had some cognitive issues. As a result of the coronavirus (COVID-19) pandemic A had never met her solicitor in person and she attended the fact-finding hearing remotely. The identification of A’s cognitive difficulties took place after the event but serious findings made against her by a circuit judge.
‘Part 3A [of the Family Procedure Rules 2010 (FPR 2010)] and its accompanying Practice Direction provide a specific structure designed to give effective access to the court, and to ensure a fair trial for those people who fall into the category of vulnerable witness. A wholesale failure to apply the Part 3 procedure to a vulnerable witness must, in my mind, make it highly likely that the resulting trial will be judged to have been unfair.’
There is a duty to identify any party or witness who is a vulnerable person, which extends to all parties to the proceedings and their representatives and it is good practice to address this issue at the earliest opportunity. Courts and tribunals across the English and Welsh legal system have recognised the need to make provision for vulnerable persons to participate in proceedings.
It is important that the judge dealing with allocation and the first case management hearing should investigate whether there were, or might be, issues engaging Part 3A to comply with the obligation under the rules. The parties' representatives should also, so far as they are able, have considered this issue and be able to notify the court and other parties accordingly. Rule 3A.9 sets out the court's continuing duty to consider vulnerable parties applied until the end of the proceedings, this includes intervenors.
The Court of Appeal also made clear that a failure to comply with the provisions, whether through oversight or inadvertence, would not necessarily lead to a successful appeal, it would depend upon the particular circumstances of each case and the approach would be to consider, firstly (i) had there been a serious procedural or other irregularity and, (ii), if so, was the decision of the court unjust.
In this case the failure to identify A's cognitive difficulties and to make appropriate participation directions to ensure that the quality of her evidence was not diminished as a result of vulnerability had amounted to a serious procedural irregularity. If the circuit judge had known of A’s cognitive difficulties it is likely that there would have been an intermediary assisting A. In addition a ground rules hearing could would have been listed to consider how the court and other parties would take account of and address A’s difficulties when questioning her. The court may have requested questions/themes in advance to consider the appropriateness of the formulation of the questions, in light of A’s difficulties. None of this preparatory work had taken place because A’s needs were unidentified during the fact-finding hearing. In reaching her findings the circuit judge had placed considerable weight on an assessment of A’s credibility, character and demeanour, some of which would have been presented by A in a particular way because of A’s cognitive difficulties. The circuit judge’s overall assessment may have been different in light of A’s difficulties with comprehension and understanding of the questions asked of her.
The Court of Appeal did not explicitly state that the circuit judge’s findings were wrong overall but had A been properly treated as a vulnerable party then the necessary safeguards would have been in place to enable A to give her best evidence and the hearing would have been conducted differently, albeit the outcome and findings may have been the same.