Practice Direction: Child, Vulnerable Adult and Sensitive Witnesses

This practice direction defines the three relevant categories of witnesses, then gives details of the circumstances under which they may give evidence, and the manner in which evidence is given. It applies both to the First-tier and Upper Tribunals, and is dated 30/10/08.

Related cases

Any cases with a hyperlink to this legislation will automatically be added here. There may be other relevant cases without a hyperlink, so please check the mental health case law page.

  • JP v SSWP (DLA) [2014] UKUT 275 (AAC), [2014] MHLO 81 — "This [welfare benefits] appeal raises the issue of whether the claimant, who was 12 years old at the date of the hearing, should have been allowed to give evidence to the tribunal or at least to attend the hearing. I have decided that the approach to children, whether as witnesses or as persons present in the hearing room, has to be updated in order to be consistent with the international obligations on the rights of children, the right to a fair hearing and the right to family life. This approach is reflected in decisions of the Court of Appeal and Supreme Court in family cases. Doing so, requires some modification to the guidance given by the Tribunal of Commissioners in R(DLA) 3/06 and some care in applying the Senior President’s Practice Direction."

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The Practice Direction

PRACTICE DIRECTION

FIRST TIER AND UPPER TRIBUNAL

CHILD, VULNERABLE ADULT AND SENSITIVE WITNESSES

1. In this Practice Direction:

a. “child” means a person who has not attained the age of 18;
b. “vulnerable adult” has the same meaning as in the Safeguarding Vulnerable Groups Act 2006;
c. “sensitive witness” means an adult witness where the quality of evidence given by the witness is likely to be diminished by reason of fear or distress on the part of the witness in connection with giving evidence in the case.

CIRCUMSTANCES UNDER WHICH A CHILD, VULNERABLE ADULT OR SENSITVE WITNESS MAY GIVE EVIDENCE

2. A child, vulnerable adult or sensitive witness will only be required to attend as a witness and give evidence at a hearing where the Tribunal determines that the evidence is necessary to enable the fair hearing of the case and their welfare would not be prejudiced by doing so.

3. In determining whether it is necessary for a child, vulnerable adult or sensitive witness to give evidence to enable the fair hearing of a case the Tribunal should have regard to all the available evidence and any representations made by the parties.

4. In determining whether the welfare of the child, vulnerable adult or sensitive witness would be prejudiced it may be appropriate for the Tribunal to invite submissions from interested persons, such as a child’s parents.

5. The Tribunal may decline to issue a witness summons under the Tribunal Procedure Rules or to permit a child, vulnerable adult or sensitive witness to give evidence where it is satisfied that the evidence is not necessary to enable the fair hearing of the case and must decline to do so where the witness’s welfare would be prejudiced by them giving evidence.

MANNER IN WHICH EVIDENCE IS GIVEN

6. The Tribunal must consider how to facilitate the giving of any evidence by a child, vulnerable adult or sensitive witness.

7. It may be appropriate for the Tribunal to direct that the evidence should be given by telephone, video link or other means directed by the Tribunal, or to direct that a person be appointed for the purpose of the hearing who has the appropriate skills or experience in facilitating the giving of evidence by a child, vulnerable adult or sensitive witness. 1

8. This Practice Direction is made by the Senior President of Tribunals with the agreement of the Lord Chancellor. It is made in the exercise of powers conferred by the Tribunals, Courts and Enforcement Act 2007.

LORD JUSTICE CARNWATH

SENIOR PRESIDENT OF TRIBUNALS

30 October 2008

External links

The Practice Direction on the Judicary website

Senior President of Tribunals, 'Forthcoming revision to the Practice Direction for the First-tier and Upper Tribunal on Child, Vulnerable Adult and Sensitive Witnesses' (29/7/14)†. The text of the message is: 'In light of the recent judgment of the Upper Tribunal (Administrative Appeals Chamber) JP v SSWP (DLA) [2014] UKUT 275 (AAC), [2014] MHLO 81 dated 11 June 2014, it is necessary for me to revise the Practice Direction for the First-tier and Upper Tribunal on Child, Vulnerable Adult and Sensitive witnesses. The Practice Direction will be brought into line with developments in the law in this field. The revised Practice Direction will be published in due course.'