D v R

In proceedings involving allegations of domestic abuse, the court must assume that an alleged victim’s evidence and participation may be diminished and must consider whether participation directions are necessary. That obligation is independent of the parties’ representation and must be kept under review.

Where a vulnerable witness is to give evidence, the court should hold a ground rules hearing and consider appropriate safeguards, including arrangements for questioning, breaks, video evidence and whether the witness should see another party. A wholesale failure to undertake that exercise may amount to a serious procedural irregularity making the hearing unfair. The appeal court must then determine whether the decision was unjust. Where it was, findings may be set aside and the matter remitted for rehearing before a different judge.

The mother appealed against findings made by Recorder Bradberry after a four-day fact-finding hearing concerning allegations of domestic abuse, including coercive and controlling behaviour and sexual harm. The allegations were not proved to the required standard.

Permission to appeal was granted on grounds concerning the court’s failure to comply with FPR Part 3A, Practice Direction 3AA and section 63 of the Domestic Abuse Act 2021, and its treatment of section 98 of the Children Act 1989. The mother argued that no ground rules hearing or consideration of participation directions had taken place, and that the arrangements for her evidence and covert video evidence failed to address her vulnerability. The central issue was whether those failures rendered the hearing procedurally unfair and the decision unjust.

1. The appeal was allowed on the grounds concerning FPR Part 3A. The findings made by Recorder Bradberry were set aside. The matter was remitted to be heard by a different judge.

2. Under section 63 of the Domestic Abuse Act 2021 and FPR rule 3A.2A, where it is stated that a party or witness is, or is at risk of being, a victim of domestic abuse, the court must assume that the quality of the person’s evidence and, where applicable, participation in the proceedings may be diminished. The court must then consider whether one or more participation directions are necessary.

3. The court’s obligation is independent of whether the parties’ representatives draw the relevant provisions to its attention. Where a vulnerable party or witness is to give evidence, a ground rules hearing should take place before the evidence is heard. The court must consider the available safeguards and record its reasons for making, refusing, varying or revoking participation directions.

4. The obligation concerns both participation in the hearing and the giving of evidence. The court should consider, as appropriate, whether one party should be prevented from seeing another, how questions are asked, the timing of breaks, and how video or other intimate evidence is presented. The safeguards must be tailored to the issues, the evidence and the alleged vulnerability.

5. Failure to comply with Part 3A does not invariably require an appeal to succeed. The appellate court must determine whether there was a serious procedural or other irregularity and, if so, whether the resulting decision was unjust. Here, the wholesale failure to consider Part 3A, the absence of a ground rules hearing, and the failure to address the mother’s vulnerability and the management of the video evidence made the hearing unfair. The outcome of any rehearing was left open.

• High Court (Family Division): The appeal from the order of Recorder Bradberry dated 23 September 2022 was allowed on two grounds. The findings were set aside and the matter was remitted for rehearing before a different judge.