Special measures are provisions available under the direction of the court to aid vulnerable parties to give evidence or participate in court proceedings.
Provision for special measures in family proceedings is made in Part 3A of the Family Procedure Rules 2010, supported by Practice Direction 3AA. 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 or their ability to participate is likely to be diminished due to their vulnerability.
Special measures often look at the physical and practical process of safeguarding or mitigating fear and anxiety of attending the family courts such as separate court entrances; separate waiting rooms, the use of screens in court to prevent the witness from seeing the perpetrator and from being seen; permitting evidence via video link.
The move to remote hearings poses other issues. The Family Justice Council (FJC) published guidance titled ‘Safety from Domestic Abuse and Special Measures in Remote and Hybrid Hearings’. This sets out guidance on a variety of considerations, including video and telephone hearings.
Technology aside – what implications are there for survivors of abuse attending an online hearing? Well let’s look at the obvious.
THE PERPETRATORS VOICE – A TRIGGER FOR TRAUMA
Women who experience PTSD repeatedly relive the ordeal through thoughts and memories of the trauma. These may include flashbacks, hallucinations, and nightmares. Survivors of domestic abuse may also feel great distress when certain things remind them of the trauma, such as hearing a voice, tone of voice, hearing “meaningful” words – this is very much a code word, usually a benign and insignificant word that abusers use to create fear and terror: other trigger words – such as the names of the children, words that would be used as a warning, sighs, whistles, the drumming of fingers on a table, the clicking of a ball point pen, coughing as an interruption and asking for constant breaks within the court proceedings with the intention to tease out tension and anxiety.
This has significant impact on women who have experienced abuse and deal with PTSD to be able to provide their best evidence. The role of special measures are an important mitigation, however the intrusive and subtle experiences in relation to voice, language and gestures of words can have a significant impact on traumatized women. During a relationship, abusive men use verbal intimidation and tactics in conversations to discredit statements, views, beliefs and morals to ultimately silence victims. This experience can be carried into the courtroom where survivors are fearful they will not be heard or believed.
Fear brings about increased arousal which includes hightened emotions; difficulty falling or staying asleep and difficulty concentrating. The survivor may also suffer physical symptoms, such as increased heart rate, rapid breathing, and muscle tension,
It is accepted that the anticipation of and participation in family court proceedings is a stressful and often distressing experience. It requires, calmness, focus, concentration, ability to absorb information and be organised; to have flexibility of thought as well as the requirement to respond around a complex layer of facts and information. So much for a level playing field!
We know that anticipation of something frightening has the same effect on the nervous system as an actual experience. Fear reaction starts in the brain and spreads through the body to make adjustments for the best defence, or flight reaction. The fear response starts in a region of the brain called the amygdala. A threat stimulus, such as the sight, sound or anticipation of a predator, triggers a fear response in the amygdala. So its hardly surprising that retraumatization is a very common experience in the family court system. It may be caused by situational reminders of abuse (triggers), or conditions that result from the abuse (e.g. contact with a perpetrator via child contact arrangements or from abuse and violence continuing in the present time.) Incidents, thoughts, memories, images, sounds and actions can all trigger retraumatization in this way and the courts need to recognise and respond to these issues.
Sir Andrew McFarlane President of the Family Division and Head of Family Justice has produced important guidance on the need to protect victims of Domestic Abuse in Remote and Hybrid Hearings and goes some way to dealing with perpetrators who use the family courts as an opportunity for further abuse.
Importantly it states:- “Where options as to the format of the hearing are available, it is for the judge to decide which format will be used, but victims of domestic abuse should always be consulted (via their legal representative if they have one) as to their preferred mode of participation – in a courtroom in person, or by telephone or video. He goes on to state.
“The emotional impact of each option will vary depending on their experiences and individual vulnerabilities – it would be inappropriate to be prescriptive.”
Please see in full, the president’s guidance for remote hearings: