180.Section 11B of the 2004 Act will be inserted into that Act by section 4(3) of the Children (Scotland) Act 2020 when that section is brought into force. Section 11B makes provision requiring the court in certain civil proceedings to treat a person who is giving, or is to give, evidence in or for the purposes of those proceedings as a vulnerable witness.
181.Where a person is deemed a vulnerable witness under section 11B, the court can order certain special measures to apply to their participation in the proceedings (such as taking their evidence by live television link) to better enable the witness to give evidence and to protect the witness from certain risks if special measures were not used.
182.The civil proceedings to which section 11B applies are proceedings (other than “relevant proceedings”) in which the court is considering making an order under section 11(1) of the Children (Scotland) Act 1995. An order under section 11(1) of that Act is one relating to parental responsibilities, parental rights, guardianship or the administration of a child’s property. “Relevant proceedings” are proceedings under Part 10 and section 154 of the Children’s Hearings (Scotland) Act 2011. Section 11A of the 2004 Act applies to relevant proceedings and, like section 11B, makes provision to treat certain people as vulnerable witnesses.
183.In proceedings covered by section 11B of the 2004 Act, a person will be deemed to be a vulnerable witness if they are protected by a civil protection order (such as a non-harassment order) from conduct by a party to the proceedings, or where they are the victim or complainer in respect of certain criminal offences committed or alleged to have been committed by a party to the proceedings.
184.Section 58(2)(a) will amend section 11B so that the proceedings to which that section applies will be all civil proceedings, other than relevant proceedings. As a result, it will no longer matter whether the court is considering making an order under section 11(1) of the Children (Scotland) Act 1995. In all civil proceedings, other than relevant proceedings, a person to whom subsection (3) of section 11B applies will be deemed to be a vulnerable witness. Section 58(2)(c) replaces the existing section 11B(3) to extend the range of persons who will benefit from this protection. Persons who are protected by a civil protection order (such as a non harassment order) are currently protected. The new section 11B(3) extends the protection to persons who have applied for such an order, clarifies that interim orders are included, and adds lawburrows – a type of civil order in which a person is required to lodge a guarantee against harm to another person - to the list of relevant orders. In addition, the new section 11B(3) extends the protection to persons who have brought an action for damages in relation to personal injuries they have sustained which are attributable to sexual abuse or harassment by a party to the proceedings. Section 58(3) amends section 22D(5)(a)(i) of the 2004 Act to make consequential changes reflecting the changes being made in section 11B.
Crown Application Vulnerable witnesses Section 58 – vulnerable witnesses