What are ‘special measures’?
Special measures are a series of provisions that help a party or witness participate or give evidence in Court proceedings. The Family Courts have the power to make ‘participation directions’ to assist a person during proceedings, which can include a direction that a particular measure should be made available. There are a range of special measures available in family proceedings to help parties and witnesses, which include permitting them to give evidence from behind a screen or via a live link and giving them the assistance of an intermediary.
Special measures are changes to the Court process that can be requested by those attending a court building to participate in a case. These rules provide that victims of domestic abuse, and other parties or witnesses, are eligible for special measures in the proceedings if the Court is satisfied that the quality of their evidence is likely to be weakened due to their vulnerability.
The Court will need to consider a wide range of matters to first assess whether a victim is “vulnerable”, before determining whether any special measures are necessary to assist them.
The most common measures aim to keep the parties separate from one another by way of different entrances and exits to the court, separate waiting rooms, and screens behind which they can give evidence without fear of intimidation by the other party.
The report published by the Family Justice Council aims to set out what special measures can be put in place to avoid remote and hybrid hearings. Remote hearings take place with all the parties online, usually in separate locations, whilst hybrid hearings take place with some participants in the courtroom and some online.
It is recognised that for some victims of domestic abuse, participation in a video conference can be invasive, (re)traumatising, and endangering. The victim’s home, their safe space, becomes visible to the abuser at the other end of a video call and from what they see, the abuser may be able to determine information about their victim, such as location or the existence of a new partner.
The Family Court has been urged to give proper consideration to these factors if they do not it is recognized that parties may not be able to give their best evidence and cases may not be dealt with as efficiently as they might otherwise be.
Summary of considerations and recommendations:
- Where a party is represented by a lawyer, their lawyer should join the hearing first to ensure the parties are not left alone together on the telephone or video call.
- Where a party does not have a lawyer, the Judge or a member of Court staff should be first on the call for the same reason. When the hearing ends, the Judge or a member of Court staff should ring off last.
- For hybrid hearings, where a victim may be in the courtroom with other participants on a telephone or video link, their lawyer (if they have one) should accompany them.
- Where a party is not legally represented, they can be encouraged to bring a supporter with them. A supporter however cannot speak on behalf of their friend/relative and must keep the content of the hearing private.
- To keep a safe space at home private, the court should guide how to blur or de-personalise a background.
- A victim can be permitted to join by audio-only or to deactivate their video screen when the other party is giving evidence. In some cases, victims may be permitted not to attend at all, giving evidence to a lawyer by telephone instead.
The full report, with all the considerations and recommendations, can be found here.
Ultimately, the digital platforms used for remote and hybrid hearings pose their unique challenges, not least how to use the platforms and whether all the parties remain connected at all times during the hearing. To have parties join and leave or to use and then turn off video feeds could potentially disrupt the flow of a hearing and lead to parties giving evidence that is far from their best. It is important that the parties in the process feel they have had a fair hearing and an opportunity to be heard. If they leave the remote or hybrid hearing feeling this is not the case, it could be hard for them to feel the matter is closed and the terms of an order honoured.
Finally, there are strong recommendations and suggested approaches that put the onus on the Court to assist parties and to look into how the measures are adapted to each person’s circumstances and needs, as recommended by the report. The Court is urged to always give careful consideration of the extent to which any special measures are needed and to give proactive planning in advance of any hearing to assess risk, and what practical and other support will be necessary to promote the physical and emotional safety of all participants.
