Chapter Three: Special measures in civil cases
The Vision for Justice in Scotland says that "many of the issues that bring people to the justice system are very traumatic. It is our duty to ensure that we minimise further trauma or re-traumatisation".
This can apply to a number of civil cases as well as criminal cases. For example, civil cases, like criminal cases, can involve people who have suffered domestic abuse.
However, the existing provisions in the Vulnerable Witnesses (Scotland) Act 2004 ('the 2004 Act') for special measures in the civil courts rely on there being 'witnesses' and 'evidence'. A number of civil court hearings are non-evidential and so there are no 'witnesses' or 'evidence'.
Over the years, there have been representations suggesting that people who have suffered trauma, such as domestic abuse, may be less protected in the civil court system than in the criminal justice system. As a consequence, the Children (Scotland) Act 2020 ('the 2020 Act') contains provisions, not yet commenced, on special measures in the family courts.
The analysis of the responses to the consultation which led to the 2020 Act noted that many consultees supported bringing special measures in civil cases closer to the protections available in criminal cases. The 2020 Act just covers family cases, while the proposals below would cover civil cases generally.
Part 2 of the 2004 Act contains provisions on special measures (such as use of a live television link, use of a screen and supporters) in civil proceedings. In particular, the Act contains provisions to protect a person who is a 'vulnerable witness' 'who is giving or is to give evidence in or for the purposes of any civil proceedings'. The term 'vulnerable witness' includes persons under 18 on the date of commencement of proceedings.
Changes (not yet commenced) introduced by the Children (Scotland) Act 2020
Sections 4 to 7 of the 2020 Act introduce special measures to be used to assist vulnerable witnesses and parties in civil proceedings arising out of children's hearings or where the court is considering making an order under section 11 of the Children (Scotland) Act 1995 ('the 1995 Act'). These provisions are not yet in force. The Family Law Committee of the Scottish Civil Justice Council has set up a sub-committee on implementing the vulnerable witness and parties aspects of the 2020 Act. Further information on the set up of the sub-committee on the vulnerable witnesses and parties aspects of the 2020 Act can be found at paragraphs 13 to 15 of the Family Law Committee minutes of 27 September 2021.
Prohibition on personal cross-examination
One of the special measures envisaged by the 2020 Act would be to allow the court to prohibit a party to the proceedings from personally conducting their own case and cross-examining witnesses in certain circumstances, such as when there has been domestic abuse. A solicitor would be appointed to the party who has been prohibited from personally conducting their own case. Under the 2020 Act, this special measure is to be available only in court proceedings arising out of children's hearings or where the court is considering making an order under section 11(1) of the 1995 Act (on matters such as child contact and residence).
Special measures in non-evidential family hearings
Section 8 of the 2020 Act, once commenced, will amend the 1995 Act to require the court to consider the use of special measures to reduce distress in relation to vulnerable parties which may be caused by attending or participating in hearings.
Section 8 relates to proceedings in which the court is considering, or has considered, whether to make an order under section 11(1) of the 1995 Act. This provision is specifically aimed at Child Welfare Hearings in family cases which are generally non-evidential.
Other civil cases?
The measures included in the 2020 Act, which cover some family cases such as child contact and residence, raise the question of whether provision should be made so that:
- personal cross-examination could be prohibited in evidential hearings in civil cases generally when the circumstances require this measure to be taken
- special measures could be available when required for all civil court hearings whether the hearings are evidential or not
Extending provisions in these areas could cover a wide range of civil cases. The benefit of extending these protection measures to civil cases generally is because vulnerable witnesses and parties may be involved in a range of civil cases and not just in family cases.
Prohibition of personal cross-examination in civil cases, when required?
On prohibiting personal cross-examination in civil evidential hearings generally it may be more likely that circumstances will arise in child contact and residence cases where personal cross-examination may need to be prohibited. However, it is possible to imagine, for example, other civil cases where one of the parties has carried out domestic abuse on one of the other parties.
If there should be a need to prohibit personal cross examination in a specific case because of the circumstances in that case, the party involved would need legal representation. This might require a register of solicitors similar to that proposed (and not yet in force) for family cases in section 7 of the 2020 Act. Solicitors on this register could be appointed to act on behalf of a party for these purposes. There would be resource implications.
If there should be primary legislation in this area, there might be a need for rules of court as well. If that should be the case, the Scottish Government would prepare a policy paper to go to the Scottish Civil Justice Council, in line with usual practice. Information about how court rules are made can be accessed on the Scottish Civil Justice Council's website.
Special measures in non-evidential civil hearings, when required?
On special measures in non-evidential civil hearings, these could potentially be required in a wide range of hearings such as:
- family cases (as discussed above, the 2020 Act makes specific provision for some family cases)
- applications for a civil protection order, such as an interdict or a non-harassment order or a forced marriage protection order, to protect against domestic abuse or other forms of abuse
- applications by the police for court orders under the Age of Criminal Responsibility (Scotland) Act 2019 (although these applications are by the Police, they are under civil procedures)
- applications by the police for domestic abuse protection orders under the Domestic Abuse (Protection) (Scotland) Act 2021 (again, although these applications are by the police, they will be under civil procedures)
The Scottish Government's understanding is that, other than family options hearings and child welfare hearings, a party would usually only attend procedural hearings if they were not legally represented.
Extending provisions on special measures would have resource implications. If there should be primary legislation in this area, there might be a need for rules of court as well.
The position in England and Wales
In England and Wales, part 5 of the Domestic Abuse Act 2021 ('the 2021 Act') makes provision on special measures in family and civil proceedings. In England and Wales, a distinction tends to be drawn between family and civil proceedings. This distinction is not normally drawn in Scotland. The 2021 Act includes provision on:
- special measures in family proceedings for victims of domestic abuse
- special measures in civil proceedings for victims of domestic abuse and of specified offences
- prohibition of personal cross examination in certain circumstances in family and civil proceedings
Question 28: To what extent do you agree or disagree that the courts should have the power to prohibit personal cross-examination in civil proceedings when the circumstances in a particular case require this measure to be taken?
Please give reasons for your answer.
Question 29: To what extent to do you agree or disagree that special measures should be available when required for all civil court hearings in Scotland, whether the hearings are evidential or not?
Please give reasons for your answer.
Question 30: Are there any other matters relating to special measures in civil cases that you would like to offer your views on?
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