Whether you are simply thinking about contacting a family lawyer to start legal proceedings, or are already in the middle of court proceedings, if you will be relying on evidence from an individual who either does not speak English, or who speaks limited English, you will need to follow certain guidelines, or face the penalties of not doing so. To evidence how best to follow these, here at St. Pauls Chambers we have prepared the below guide.
Within the case of NN V ZZ & Ors  EWHC 2261 (Fam), Mr Justice Peter Jackson became concerned that, during the hearing, witness statements in English were being produced by witnesses who did not speak the English language. In a postscript to his judgment, Mr Justice Peter Jackson therefore gave guidance to family lawyers on the preparation of evidence from witnesses who do not speak English, detailed below. You are most welcome to follow these principles yourself, or get in touch with one of our family lawyers for further assistance and clarification.
How Translating the Affadavit Must Take Place
In his postscript, Jackson proclaimed that “an affidavit or statement by a non-English-speaking witness must be prepared in the witness’s own language before being translated into English”. Jackson went on to evidence how this is understood from Practice Direction 22A of the Family Procedure Rules 2010, paragraph 8.2, and therefore should be executed as such (the below has been taken from this practice, and edited where appropriate for ease of understanding).
This section of the Family Procedure Rules states that, for an affidavit/statement prepared in a witness’s own (foreign) language, the party choosing to use it as reliable evidence absolutely must have it translated to English, have the translator sign the translation to certify that it is accurate, and file the foreign language affidavit/statement with the court.
The Importance of Clarity Within the Translated Document
There must be complete clearness about the process by which a statement has been created. To satisfactorily achieve this, the statement must contain an explanation of how it was taken, for example; face-to-face, via telephone, Skype or based on a document written in the witness’s own language.
The Solicitor’s Role and Responsibilities Concerning the Witness(es)
If a solicitor has been instructed by the litigant, they must be fully involved in the process, and not subcontract it to the client.
If presented with a statement in English from a witness who cannot read or speak English, the solicitor must question its provenance and not simply use the document as a proof of evidence.
The Use of Interpreters
The witness should be spoken to wherever possible, using an interpreter, and a draft statement should be prepared in the native language for them to read and sign. If the solicitor is fluent in the foreign language then it is permissible for him/her to act in the role of the interpreter. However, this must be made clear either within the body of the statement or in a separate affidavit.
A litigant in person should, where possible, use a certified interpreter when preparing a witness statement. If the witness cannot read or write in their own native language, the interpreter must carefully read the statement to the witness in his/her own language and set this out in the translator’s jurat or affidavit, using the words provided by Annexes 1 or 2 to the Practice Direction.
Once the statement has been completed and signed in the native language, it should be translated by a certified translator who should then either sign a jurat confirming the translation or provide a short affidavit confirming they have faithfully translated the statement.
Live Evidence and Statements Prepared Abroad
If a witness is to give live evidence either in person or by video-link, a copy of the original statement in the witness’s own language and the English translation should be provided to them well in advance of the hearing.
If a statement has been obtained and prepared abroad in compliance with the relevant country’s laws, a certified translation of that statement must be filed together with the original document.
The Potential Risks of Not Following These Rules, and How St. Pauls Chambers Can Help
It is crucial that you follow the above guidance, and in turn, the rules regarding the preparation of evidence from non-English speaking witnesses. If you do not, you may not be allowed to rely on the evidence of the non-English speaking witness. Or, alternatively, the Court may decide that the evidence holds little weight.
To ensure that you do not fall foul of these rules, and risk your case in the process, it is highly recommended that you seek assistance from a family lawyer who will be able to help you navigate these often tricky rules. If you do decide to take advice in this situation, either prior to starting proceedings, or due to problems which have arisen during the case, please don’t hesitate to contact us at St. Pauls, and we will be happy to help. If you require a solicitor’s assistance as well as a barrister, we can also aid you in finding somebody with the relevant expertise to further assist.