By Elizabeth Adams, barrister, 3PB
The majority of Family Law practitioners will be no stranger to clients with vulnerabilities or additional needs. By virtue of the fact of their vulnerabilities, clients with these difficulties are sadly more likely to end up in Family proceedings, whether it is a private matter involving domestic abuse or public law proceedings.
The need to protect and enable vulnerable clients and witnesses to participate properly throughout family proceedings is enshrined in law via the Family Procedure Rules 3A and accompanying Practice Direction 3AA. Further extensive guidance is available within the ‘Toolkits’ on the Advocate’s Gateway website. When determining whether a client is vulnerable, legal representatives should consider the full range of matters set out in FPR r3A.7.
My own background and the catalyst for my journey to the bar includes having had to navigate legal proceedings as a vulnerable client. I’ve given prosecution witness evidence in criminal proceedings, been a party to child arrangements proceedings with special measures, and I am neurodiverse. Since being in practice at the bar I have been able to draw upon my own experiences to really consider and empathise with the reality of navigating proceedings for the vulnerable clients I represent. Putting in place additional strategies has assisted me with building a rapport, obtaining key evidence, and making comprehensive applications for special measures and participation directions.
The following are my 5 tips to assist practitioners with ensuring that the needs and experiences of vulnerable clients can be fully considered.
- Let them Speak and Listen
A popular phrase in disability advocacy is ‘nothing about us without us’. It seems obvious to state that the best source of information about a person’s particular needs and adjustments they require is to ask them directly. Yet it is alarming at how frequently this is overlooked. Sadly, this sometimes includes in social and medical care. Whilst there are fantastic examples of best practice and improved approaches, it is common knowledge that the strain on such professions sometimes leads to the required individual and tailored approaches being too resource intensive to provide. Additionally, there may be gaps in training provision or limited access or time to review the latest knowledge and research. This means that unless they have an expert report by a properly qualified specialist, legal practitioners sometimes need to look beyond general medical reports or social care reports and check the adjustments listed are appropriate. Adjustments may be listed that the client themselves do not find helpful. Measures that would be helpful may be missing.
Listening to the client successfully may require legal representatives to consider re-structuring their conferences. Some clients, particularly those who are neurodiverse, may struggle process the lawyer’s planned order of questions or events. Some clients may need to speak for a time, without being interrupted, to reach the important information. Where possible, if it is known that a client may have different communication needs, a conference should be organised in advance of the hearing day. This will allow advocates to be able to introduce themselves, consider challenges in advance, and plan the pre-court conferences to account for time pressures that may hinder communication with the client. Other possibilities could include sending written questions to the client in advance so they can prepare answers, or, if unavoidable, requesting additional time from the Judge to take instructions.
- Suggest and Advise
Taking the lead from what the client says they require doesn’t mean legal representatives should abdicate responsibility for offering advice. Some clients may not fully understand their own triggers or limitations. Whilst the client may have a good understanding of adjustments they require in everyday situations, they may not appreciate the quirks and stressors encountered in the court room. It is the legal representative’s responsibility to ensure the client understands why they are being asked whether an adjustment is needed. This includes scenarios such as that their presentation without context may come across as aggressive or alarming, how long they are likely to be in Court or giving evidence, that the Court room may be windowless or of an uncomfortable temperature, or that they are going to be asked about topics they find triggering. Practitioners should be cautious to accept that a client with a clearly defined need does not require any adjustments. Be mindful that this position may be impacted by obstacles they may have faced when requesting adjustments in wider society.
Practitioners should consider at the earliest possible opportunity whether specialist assessment is required. If an intermediary assessment has been recommended, referrals should be prompt. It is important when considering adjustments to have regard to all areas. As a general guide this includes: physical adjustments (mobility aids, comfort breaks, etc), communication adjustments (interpreters/intermediaries, hearing aids, format of questions, processing breaks, etc), sensory adjustments (eye wear, sensory aids/fidget aids, movement breaks, environmental adjustments, etc), emotional triggers/safety (screens, remote attendance, questioning breaks). The omission of any of these areas may have an impact on the client’s ability to give their best evidence.
- Allow for Flexibility
Sometimes, needs change. For some conditions, the oscillation between good and bad days may mean a markedly different presentation and capacity is apparent at different times in the same person. It is important not to interpret this by default as someone downplaying or exaggerating their needs. Equally, court resources should not be wasted by rigidly sticking to breaks or other adjustments if it is apparent and the client is instructing that they are not now needed. There is an element of learning through process. Flexibility is crucial. If a review of adjustments is necessary because some are not working or require alteration then this should be requested. If there is a chance that your client’s presentation may get significantly worse than it has been, for example, they may have coped well with interim hearings but may struggle once evidence is being heard, ensure the Court and other parties are put on notice as early as possible.
- Don’t Hide your Empathy
Practitioners will be keen to conceal their own emotions about a case and of course need to uphold professional and ethical standards. However, we are all acutely aware that sometimes, the law doesn’t always equate to a just outcome for every individual. Vulnerable clients are likely to be particularly emotionally tied to the ‘justice’ of their position, whether due to emotional trauma they have suffered, or due to a difference in perception, such as viewing things in a ‘black and white’ context or not being able to move past a particular issue (sometimes this can be due to age, cognitive functioning, mental health, or neurodiversity). Some reassurance from a legal representative that they genuinely understand the client’s perceived injustice in the law or an opponent’s position can go a long way.
- Stand your Ground over Ground Rules
Unfortunately, practitioners may at times face some opposition when trying to ensure the court process is appropriate to a vulnerable client’s needs. There may be pushback from opponents who refute allegations and the need for special measures. There may be scrutiny over the proportionality of a trial that has to last an extra day once breaks are considered. None of those are reasons to scale back adjustments that are necessary for a vulnerable client to properly participate in proceedings. It is important to ensure a client is not deterred from accepting adjustments because they have been made to feel like they will be viewed negatively for using them.
Finally, it is important for practitioners to recognise and acknowledge the extra energy that representing vulnerable clients exhausts. This includes both mental and emotional energy. Mental health and wellbeing of practitioners can unfortunately take a back seat on many occasions. As a minimum, taking time to recover after dealing with emotionally draining cases should be standard. Having a good system in place to allow for communication between barristers, solicitors and clerks is vital. It would be a benefit to be able to mark down cases where a post-hearing wellbeing check may be a good idea. The more this is acknowledged the more of a shift we will hopefully see to make this easier in practice.
Elizabeth Adams barrister, 3PB