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The family courts are now requiring video recorded evidence as a means by which children may give oral evidence in chief in family proceedings. This is a development that has come as a response to the need for children and young people to have their experiences, wishes and feelings heard by the court directly. This post offers some advice to to assist lawyers who need to issue instructions for videos to be undertaken in compliance with the ABE Guidance and the FJC Guidance on Children Giving Evidence in the Family Court. 
Timescales: It is wise to consider requesting a video recorded interview and indentifying a team to provide this at the earliest opportunity. Unlike independent risk assessments, video interviews are a discreet piece of work that can be filed as soon as the interview has been recorded. Consequently, the turn-around time can be relatively quick but there are some logistical issues that need to be taken into account e.g. finding an intermediary if required and an appropriate venue. 
 
Intermediaries: Current best practice suggests that an intermediary be provided for children that are younger than the age of 12. Intermediaries should also be instructed for children that have learning disabilities or other cognitive impairments (e.g. Autism Spectrum Disorder), communication disorders, sensory impairments or physical disabilities that may contribute to communication difficulties. The Intermediary’s role is to facilitate communication between the child and the interviewer . Further guidance on the use of intermediaries can be found at http://www.theadvocatesgateway.org/intermediaries#intermediaries-for-witnesses-in-family-and-civil-cases
The National Crime Agency (NCA) holds a directory of accredited intermediaries socwitnessint@nca.x.gsi.gov.uk ). It can sometimes take several weeks for an accredited intermediary to be available. In some cases it may be possible to instruct an intermediary that is not accredited (e.g. a local speech and language therapist that has knowledge and expertise concerning the child’s communication needs). It is important that the non-accredited intermediary is fully briefed regarding the scope of their role, rules of evidence and duty to the court. 
 
Recording: The video recording equipment requires an operator. This should not been done by the interviewer. The operator sometimes referred to as the controller, is a specific role. It needs to be undertaken by someone who understands the equipment that is being used. They must be present throughput the interview to ensure that it is being fully recorded and to respond to any technical problems that may arise e.g. an equipment failure. In the event of such a problem occurring the operator will immediately inform the interviewer and the interview can be suspended with the minimum impact upon the child and their account. 
The video record should be supported by a written interview plan. Any notes made during the interview including drawings or diagrams made by the witness should be dated and signed by the interviewer and filed together with the video and the interview plan. 
The operator will make two DVD recordings of the interview, one of which will be sealed and signed by the Interviewer or operator with the date of the recording. The second copy is the “working copy”. 
 
Venue: If available an interview suite is an ideal environment to undertake the interview but high demand often means that it can be difficult to book these. It is acceptable to use portable video recording equipment. This must include microphones as well as cameras and will require a meeting room that is big enough to ensure that the equipment can be set up as discreetly as possible. Video interviews should not take place in the child’s home unless absolutely unavoidable e.g. due to severe health problems or disability. 
 
Interviewer(s): The interview must be child centred; the welfare of the child is paramount. The structure and pace of the interview will be based upon the needs of the child and it is the responsibility of the interviewer to suspend or terminate the interview at any stage if continuing seems likely to cause damage to the welfare of the child taking account of the guidelines of the Family Justice Council (Re:W). 
The Achieving Best Evidence Guidance recommends two interviewers. It is my view that whilst this is extremely important in the course of investigative interviews (requiring Police and Social Workers to run joint or parrralel investigations into suspected child abuse), it may not be necessary for Family Court proceedings but the interviewer should be ABE Trained. It may be appropropriate to have the child’s named social worker present during the interview and this needs to be accounted for in the interview plan. 
Whilst the interviewer will not ask specific questions prescribed by the parties it is appropriate to agree topics that need to be covered in order to assist the court. These topics should be set out in the Letter of instruction. 
Clarity of topic areas will ensure that the interview is focused and is not unduly long. This benefits the child and the Court. 
 
For further discussion please contact Craig Barlow
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