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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Dyslexia and the Family Courts

Do many UK adults have dyslexia?
Britain has two million severely dyslexic individuals, of which some 1,625,000 are adults. Some of the world´s most successful people are dyslexic, including Bill Gates (the founder of Microsoft), Richard Branson (the Virgin Boss), and Thomas Edison (the inventor).

What is dyslexia?
Put simply, dyslexia is a disorder which can cause difficulties in spelling, reading and writing. Dyslexia can affect people in different ways. Visual dyslexia may result in number and letter reversals and the inability to write symbols in the correct sequence, while auditory dyslexia involves difficulty with the sounds of letters or groups of letters. Dyslexia can also affect memory.

While dyslexia is classified as both a learning and reading disability, it is more commonly referred to as a Specific Learning Disability.

Does dyslexia qualify as a disability?
Not necessarily. Under the Equality Act 2010, for a condition to be considered a disability it has to be a physical or mental impairment which has a substantial and long-term adverse effect on your ability to carry out normal day-to-day activities.

It may be that your dyslexia does not affect you to this extent in normal day-to-day life, but most people find court proceedings stressful, and those stresses can exacerbate dyslexia and how it affects you. We advise being cautious, and if you have any concerns that your dyslexia may cause you difficulties with any aspect of court proceedings, we recommend you inform the court that you have a disability (even if it is not normally so profound that it affects you in normal life).

Be aware that you are likely to be asked to look at written evidence during court proceedings, will be questioned, and that a judge may misinterpret hesitation or poor recollection of events as an attempt to mislead the court. It is far better to be cautious and inform the court of your dyslexia from the outset.

While your dyslexia may not count as a disability under the Equality Act 2010, you do have the right to a fair hearing under the Human Rights Act 1998.

What should I do to ensure a fair hearing?
For most applications to the family court, you need to complete Form C100. On page 9 of that form, section 11 asks if you or any of the parties involved have a disability for which you require special assistance or special facilities. That form provides very little space for you to set out what reasonable adjustments and assistance you need the court to grant you. To assist you, we have provided a list of measures which may assist you and there is no reason why you cannot attach to the Form C100 court application form. You can download our suggested list of reasonable adjustments by clicking on Dyslexia, the Courts and Reasonable Adjustments.

We also recommend you consider asking that there be a pre-trial directions hearing, where you can discuss what support you need with the judge. Our document Dyslexia, the Courts and Reasonable Adjustments includes this request.

Do not underestimate how stressful court proceedings may be, and the effect of that stress on you. If you have dyslexia, we strongly recommend you include this on the application form. While you may normally feel it inappropriate to refer to dyslexia as a disability, in these circumstances, we recommend you do.

If you are the respondent…
If you are the respondent (you are not the person who has applied to the court), you or your solicitor will be served with paperwork notifying you of the court case.

In these circumstances you (or your solicitor) will be asked to complete Form C7 which is the acknowledgment of service.

On page 3 of that form, section 7 asks if you have a disability for which you require special assistance or special facilities. That form provides very little space for you to set out what reasonable adjustments and assistance you need the court to give you. To assist you, we have provided a list of measures which may assist you and there is no reason why you cannot attach this to the Form C7. You can download our suggested list of reasonable adjustments by clicking on Dyslexia, the Courts and Reasonable Adjustments.

We also recommend you consider asking that there be a pre-trial directions hearing, where you can discuss what support you need with the judge. Our document �Dyslexia, the Courts and Reasonable Adjustments´ includes this request.

A right to a fair hearing
Under section 6 of the Human Rights Act 1998, you have the right to a fair trial in court. It is however important, if you suffer from dyslexia, that you ask the court to make �reasonable adjustments´ so you do not face disadvantage.

I am using a solicitor, what should I tell them?
We recommend you print, complete and hand them a copy of “Dyslexia, the Courts and Reasonable Adjustments” which you can download from the gold button labelled “Our Dyslexia and Court Package” at the bottom of this page.

If you suspect that your dyslexia may cause you a problem in court, we recommend that your solicitor completes this form with you, and attaches it to the C100 court form (if you are the applicant) or the C7 form (if you are the respondent).

We also recommend you print and hand your solicitor a copy of The Good Practice Guide for Justice Professionals published by the Dyslexia Association.

I cannot afford a solicitor, what can I do?
You can represent yourself, but be aware court cases often require you to manage large quantities of paperwork, and deal with large amounts of information. If you can afford a solicitor, or qualify for legal aid, we recommend using the services of a solicitor experienced in helping people with dyslexia.

If are not using a solicitor, we recommend you have someone accompany you into court. Ideally, they should have experience of court proceedings.

Please also refer to our section on McKenzie Friends.

What do judges think of unrepresented dyslexics? click to collapse contents
The opinion will vary from judge to judge, and it is important you make them aware that you have dyslexia or else they may misread hesitation as your seeking to mislead the court or being disingenuous in some way.

Many judges (and solicitors and lay advisors for that matter) are ignorant of how dyslexia affects people, especially when they are under stress. We cannot overstate how important it is that you make the court aware of your dyslexia and also provide them with copies of The Good Practice Guide for Justice Professionals published by the Dyslexia Association. You should also ask if the judge is aware of sections 5.5 and 5.6 of the Judicial Studies Board´s Equal Treatment Bench Book which sets out guidance for the judiciary on specific learning difficulties.

With regard to being a litigant-in-person with dyslexia, the Equal Treatment Bench Book gives the following guidance to judges:

“Representing oneself is highly inadvisable for people with Specific Learning Difficulties. The difficulties of doing so should be made clear, and information on legal advice provided. If the individual still decides to go ahead, clear written guidelines should be provided on court procedures and terminology. The presence of a McKenzie Friend in civil or family proceedings should be encouraged in order to help locate information, prompt as necessary during the questioning of witnesses, and provide the opportunity for brief discussion of issues as they arise. Witness Intermediaries may also work with people with Specific Learning Difficulties and it may not be necessary to restrict this to criminal cases” [Equal Treatment Bench Book, section 5.5.4, Judicial Studies Board]

British Dyslexia Association Justice Guide

Good Practice Guide for Justice Professionals
Guidelines for supporting Clients and Users of the Justice System who have Dyslexia and other Specific Learning Difficulties

Justice Guide 2012 Click Here to read
Please pass this on to anyone you know who needs this information.