If you Are a vulnerable litigant in the family court.


Lets first start by defining the term vulnerable;
(Of a person) in need of special care, support, or protection because of age, disability, or risk of abuse or neglect: Oxford Dictionaries

A person in need of special care, support or protection. For the purposes of this article we will be referring to those who have a Specific Learning Difficulty such as Dyslexia, Dyscalculia and those who have or suspected of having a Nuerodevelopmental Condition such as Asperger’s, ADHD ADD.

Vulnerable people include those who are young, those who have experienced trauma, those with autism spectrum disorder, attention deficit (hyperactivity) disorder ADHD, ADD, mental health needs, specific learning difficulties and deafness, as well as older people and those with physical disabilities or health conditions which may negatively affect their ability to effectively participate in the trial process.

Dyslexia is identified as a disability as defined in the Equality Act 2010. Dyslexia and related Specific Learning Difficulties are the most common disability to be encountered in the Justice System. As ‘Hidden Disabilities’ they are the least understood and can give rise to significant disadvantages in police and legal settings, even leading to miscarriages of justice. Dyslexia Malvern

ADHD/ADD. Signs of Attention Deficit (Hyperactivity) Disorder include inattention, restlessness, impulsivity, erratic, unpredictable and inappropriate behaviour, blurting out inappropriate comments or interrupting excessively. Some people come across unintentionally as aggressive. Most fail to make effective use of feedback.

Asperger’s is a Neurodevelopmental condition, it is not a mental illness.  Asperger’s is a hidden condition, more so in females than males. On meeting someone with Asperger’s for the first time it will not be apparent that they have the condition. Behaviour is often misinterpreted and misunderstood. Anxiety is a big feature, when placed under stress they can become overwhelmed with anxiety. This will show itself as brittle, angry and aggressive as they attempt to cope with the overload of information and sensory overload. They are easily suggestible an will shows signs of passivity and over compliance. This is because they want to please.

There are three main difficulties called the Triad of Impairments: They are: communication, (social) interaction, and (social) imagination.  Click Here

If you have a confirmed diagnosis or are suspected of having these conditions you need to make your legal team aware at the earliest stages. They must inform the other parties. The judge must be made aware of your difficulties as this makes you vulnerable. To be able to fully participate in proceedings the court must make reasonable adjustments for you.

Sir James Munby, President of the Family Division said the following in his judgement which concerned a vulnerable mother; Once again I am faced with the plight of a vulnerable mother unable to pay the cost of family proceedings in which it is essential that she is enabled to participate properly if her, and her child M’s, Article 6 and Article 8 rights are not to be breached.

The application came before Judge Bond in Bournemouth Family Court on 24th February 2015. It was opposed by the local authority. His judgment is dated 26th February 2015. He explained that he was concerned only with Stage 1 of the three-stage process explained in Re ZZ and others [2014] EWFC 9. He expressed his conclusion in this way:

“Article 6 provides an absolute right to a fair trial. That right cannot be diluted. The findings that the court made as to the mother’s reliability as a witness were central to the finding as to her possible role as a perpetrator of M’s injuries. In the light of the information which is now available it cannot now be said that the mother did receive a fair trial in December 2012. Re M (A Child) [2015] EWFC 71

In Re D (A Child) (No 3) [2016] EWFC 1 Care proceedings in which Munby P sets out key principles to consider in cases involving parents with learning disabilities.

There are a number of important points of principle either highlighted or endorsed in the judgment, as to how to approach cases where the parents have learning difficulties:

1. Munby P endorsed at [25] what is said in Y v United Kingdom (2012) 55 EHRR 33, [2012] 2 FLR 332, para 134:
“…It is not enough to show that a child could be placed in a more beneficial environment for his upbringing…”

2. Munby P endorsed at [26] the well-known passage from Hedley J in Re L (Care: Threshold Criteria) [2007] 1 FLR 2050, para 50:
“society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent … it is not the provenance of the state to spare children all the consequences of defective parenting. In any event, it simply could not be done.”

3. Munby P highlighted for the first time at [27] ‘the profoundly important of observations’ of Gillen J, as he then was, sitting in the Family Division of the High Court of Justice in Northern Ireland, in Re G and A (Care Order: Freeing Order: Parents with a Learning Disability) [2006] NIFam 8. Gillen J set out in 8 paragraphs some key points of principle that ‘must be taken into account by courts when determining cases such as this involving parents with a learning disability particularly where they parent children who also have a learning disability.’

Munby P entirely endorsed those 8 paragraphs, to the extent that he appended them in full to the end of his judgment, saying at [28] ‘I commend his powerful words to every family judge, to every local authority and to every family justice professional in this jurisdiction.’

Key points emerging from those 8 paragraphs are as follows:

a. People with a learning disability are individuals first and foremost and each has a right to be treated as an equal citizen…courts must take all steps possible to ensure that people with a learning disability are able to actively participate in decisions affecting their lives. [164.2]

b. Parents with learning difficulties can often be “good enough” parents when provided with the ongoing…support they need. The concept of “parenting with support” must underpin the way in which the courts and professionals approach wherever possible parents with learning difficulties. [164.4]

c. Judges must make absolutely certain that parents with learning difficulties are not at risk of having their parental responsibilities terminated on the basis of evidence that would not hold up against normal parents. Their competences must not be judged against stricter criteria or harsher standards than other parents. [164.4]

d. Too narrow a focus must not be placed exclusively on the child’s welfare with an accompanying failure to address parents’ needs arising from their disability which might impact adversely on their parenting capacity. [164.5]

e. The court must also take steps to ensure there are no barriers to justice within the process itself. Judges and magistrates must recognise that parents with learning disabilities need extra time with solicitors so that everything can be carefully explained to them…The process necessarily has to be slowed down to give such parents a better chance to understand and participate. This approach should be echoed throughout the whole system including LAC reviews (emphasis added). [164.6]

f. All parts of the Family justice system should take care as to the language and vocabulary that is utilised. [164.6]

g. The courts must be careful to ensure that the supposed inability of parents to change might itself be an artefact of professionals’ ineffectiveness in engaging with the parents in appropriate terms. [164.6]

h. A shift must be made from the old assumption that adults with learning difficulties could not parent to a process of questioning why appropriate levels of support are not provided to them so that they can parent successfully…The concept of “parenting with support” must move from the margins to the mainstream in court determinations. [164.7] http://www.familylawweek.co.uk/site.aspx?i=ed158421

Where it is known that you have Specific Learning Difficulties, it is important to ensure that the court or tribunal is supplied with copies of a document summarising any previous assessment, detailing the impact of problem areas and listing appropriate accommodations and Reasonable Adjustments (a specimen extract from such a document is included at the end of this chapter). Copies of assessment report(s) should also be made available.

The hearing judge should conduct a case management hearing to identify your difficulties and what reasonable adjustments you need and who will assist you in the court.
Re M (Oral Evidence: Vulnerable Witness) [2012] EWCA 1905 A father’s appeal against a fact finding decision was successful on the ground that inadequate special measures were in place when he gave evidence. http://www.bailii.org/ew/cases/EWCA/Civ/2012/1905.html

Lady Hale in P V Cheshire West and Others [2014] UKSC 19 para 45. Disability places upon the state (and upon others) the duty to make reasonable accommodation to cater for the special needs of those with disabilities’,
In Wiltshire Council –v-N, J and A [2013] EWHC 3502 (Fam) Mr Justice Baker gave guidance to courts in cases where a person was known to have a learning disability. This case was itself a re-hearing following failures by the Judge at first instance to make reasonable adjustments for the father to deal with his cognitive deficits and vulnerabilities reported in the Court of Appeal reports at [2012] EWCA (Civ) 1905. He set-out as follows:

1. The duty to identify the need for assistance in responding to questions and giving instructions falls to those acting for the parents. Plainly it is essential that those representing parents consider the question of capacity to give instructions and competence to give evidence at the outset of their instruction. If there is perceived to be a need for support, that issue must be addressed at the earliest opportunity. [para 76]

2. In a case where it is known prior to the issue of proceedings that there may be an issue about capacity or competence, the local authority or the party’s representatives should draw this to the attention of the court on issue. The court will then give directions for the appointment of a litigation friend and give directions for additional measures at the case management hearing
[paragraph 77]

3. In a case where the issue has not been identified prior to the issue of proceedings, it should be addressed fully at the case management hearing. The party’s representatives should, if they consider that expert advice is necessary to identify the existence or extent of a learning disability, apply to the court in accordance with Part 25 FPR 2010. If the court grants such an application, the court may list a further case management hearing after the expert has reported to give directions for an intermediary or such other assistance as may be required. Alternatively, if it is considered that the case for additional measures can be made without expert assistance, then that application should be made at the case management hearing.

4. The legal representatives should also, by the time of the case management hearing, identify an agency to assist their client through an intermediary or otherwise, in the event that the court confirms that such support is required [paragraph 78] Albeit not ‘expert witnesses’, a report from an intermediary or deaf relay interpreter in some cases is likely to be able to help in what tailored assistance, additional measures or adjustments the vulnerable witness/party needs.

5. Funding the cost of an expert (subject to the LAA’s approval) will fall on the certificate of the appropriate party (or parties). However, the cost of an intermediary, as a type of ‘interpreting’ service, should be borne by the Court Service.

6. Funding issues should be addressed by the appropriate representative at the earliest opportunity seeking prior authority from the LAA or giving notice to the Court Service that an intermediary may be required. http://www.familylawweek.co.uk/site.aspx?i=ed123147

In the Court of Appeal in the case of Re C (A Child) [2014] EWCA Civ 128 in which Mc Farlane LJ states “The court as an organ of the state, the local authority and CAFCASS must all function now within the terms of the Equality Act 2010. It is simply not an option to fail to afford the right level of regard to an individual who has these unfortunate disabilities”. http://www.familylawweek.co.uk/site.aspx?i=ed128597

Courts are expected to make reasonable adjustments to remove barriers for people with disabilities, including specific learning difficulties (Judicial College, 2013, Equal Treatment Bench Book), mental disabilities, specific learning difficulties and mental capacity, giving effect to the Equality Act 2010).
Equal Treatment Bench Book (2013) 4 November 2013 |General|Guidance A guide for judges, magistrates and all other judicial office holders. https://www.judiciary.gov.uk/publications/equal-treatment-bench-book/

The basic principle is that if you come under the category of vulnerable when in the family court you are entitled to a fair hearing. Article 6 of the human rights act is the right to a fair hearing. The right to a fair trial is fundamental to the rule of law and to democracy itself.
You are entitled to reasonable adjustments so that you are able to fully participate during the hearing.
You are entitled to a registered intermediary to assist you throughout the hearing.

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3 thoughts on “If you Are a vulnerable litigant in the family court.

  1. Reblogged this on | truthaholics and commented:
    “In the Court of Appeal in the case of Re C (A Child) [2014] EWCA Civ 128 in which Mc Farlane LJ states “The court as an organ of the state, the local authority and CAFCASS must all function now within the terms of the Equality Act 2010. It is simply not an option to fail to afford the right level of regard to an individual who has these unfortunate disabilities”. http://www.familylawweek.co.uk/site.aspx?i=ed128597

    Like

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