Key Facts
- •Interim threshold in children's case accepted by mother, but threshold for separation not accepted.
- •Initial hearing proceeded on submissions due to time constraints and extensive evidence.
- •Mother's new legal representative argued for oral evidence, citing concerns about mother's vulnerability and fairness of submissions-only hearing.
- •Mother was a victim of domestic abuse (by former partner and potentially father).
- •Court's duty to consider participation directions for victims of domestic abuse under FPR 3A.2A.
- •Mother's legal team did not raise domestic abuse by father at the initial hearing, which triggered assumption under FPR 3A.2A.
- •Court considered mother's potential vulnerability due to ADHD and trauma.
- •Court addressed concerns about mother's participation, noting her active engagement and representation.
- •Court considered whether special measures were necessary (screens, separate waiting room).
- •Court ultimately proceeded without special measures, considering mother's representation and nature of hearing.
- •Intermediary's role also considered and deemed unnecessary at that stage.
Legal Principles
Court's duty to consider participation directions for victims of domestic abuse.
FPR 3A.2A
Court's obligation to provide a fair hearing, considering factors that diminish a party's ability to participate and give evidence.
FPR 3A
Primary responsibility for raising vulnerability issues lies with the legal team representing a party.
FPR 3A
Court need not revisit previously considered and ruled-upon issues unless the situation has materially changed.
Decisions on vulnerability and participation directions are evidence-based and not automatic responses to keywords.
Outcomes
Initial hearing proceeded on submissions, but concerns about the mother's vulnerability and the fairness of the process were raised.
The time constraints, extensive evidence and the initial agreement to proceed on submissions were initially considered sufficient. However, the mother's new counsel's arguments and the revelation of the potential domestic abuse by the father prompted concerns about fairness.
Court rejected the request for special measures (screens, separate waiting room) at the second hearing.
The mother's active participation, legal representation, lack of witness evidence and the non-acceptance of a re-arrangement of the courtroom were deemed sufficient to ensure a fair hearing without the specific measures requested. Also, the application of such measures wasn't formally requested at the proper time and via the correct channels.
Court concluded the mother's participation was fair despite potential vulnerability.
The court noted the mother’s active engagement, legal representation, and lack of evidence suggesting significant communication or understanding difficulties. This determination was made despite acknowledging the possibility of vulnerability from PTSD or ADHD.