As citizens of the UK we are each entitled to a number of fundamental rights and freedoms under the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950). The recent case of Re C (No.2) (Children: Welfare) highlights the importance of two of these rights – the right to a private and family life (under Art. 8) and the right to a fair trial (under Art. 6) – and how these rights must be promoted within Care Proceedings.
The case was concerned with the long-term placement and education of two children whose mother opposed the local authority’s care plan. The mother had a diagnosis of Autism Spectrum Disorder and underwent an assessment within the proceedings to determine what reasonable adjustments could be put in place to help her engage with the hearings and how best to approach her cross-examination.
It was recommended that the mother should be asked a series of written questions and allowed to type out her responses during cross-examination from the witness box, all whilst wearing headphones and listening to white noise in order to prevent her from becoming overwhelmed.
Cross-examination, and the answers given by a witness, can often vastly alter the outcome of a case, so it’s important that witnesses with additional needs are as comfortable as possible. And as the evidence given during cross-examination cannot be as carefully crafted as a written statement, it means that the party’s position cannot be protected within the proceedings. The exact questions posed are not known in advance and the answers given by the witness are instantaneous reactions. It is therefore crucial in any case that reasonable adjustments are put in place, where possible, to ensure that a party’s access to justice is not impeded upon.
That being said, it is clear that a careful balancing act was undertaken to ensure that, in this case, the adjustments did not undermine the effectiveness of the cross-examination. His Honour Judge Moradifar expressed that there had been much anxiety surrounding this innovative approach, but he determined that overall this had been a positive experience for the mother. It was noted that she was ale to concentrate for longer periods and required less breaks during the hearing.
It is unclear whether Re C will have far reaching consequences in future Family Law Proceedings. However, this case is an encouraging step forward for parents with additional needs.
For more information on the subject, please contact Jasmine Wright (firstname.lastname@example.org), Trainee Solicitor at Alderson Law LLP specialising in child care representation.