About the Family Law Week blog

The Family Law Week Blog is a companion site to Family Law Week. It complements the news, cases and articles published on Family Law Week with additional comment and coverage of the wider aspects of family law.

The Blog is edited by Jacqui Gilliatt, of 4 Brick Court and Lucy Reed, of St Johns Chambers.

Wednesday, 25 November 2009

Interpreters in the courtroom

There are estimated to be 3 million people who live in the UK but were born in non-English speaking countries. The use of interpreters is understandably therefore becoming more common particularly in metropolitan areas. I have seen one estimate that the court service as a whole spends about £7m on interpreters annually.

Whereas there is specific reference in Article 6 to the right to a free interpreter when facing a criminal trial, there is no such absolute requirement enshrined in the ECHR in relation to civil cases. Even with regard to a criminal case, this does not necessarily extend to a right to have documents translated. However, it is difficult to see how a family hearing could be described as fair if someone who needed an interpreter did not have one. In a recent case of Kearns v France the ECHR ruled that there was no breach of Article 8 where a consent to adoption form had not been translated from French but this was in circumstances where the Irish mother (who had gone to France to give birth to take advantage of the possiblity of the birth being registered anonymously, which it could not be in Ireland) had had previous and lengthy discussions assisted by a lawyer and an interpreter and therefore it could not be said that she had not understood what she was doing and the consequences.

I quote from the court service website about foreign language interpreters.

Court staff will also arrange for language interpreters needed for civil and family hearings in certain circumstances where cases involve:

Committal cases

Her Majesty's Courts Service has a legal obligation under the Human Rights Act to provide language interpreters. They will ensure that anyone attending a committal case, has the free assistance of an interpreter if he/she cannot understand or speak the language used in court.

Domestic Violence and cases involving Children

Because of the sensitivity of these cases, Her Majesty's Courts Service will provide an interpreter if required. This is irrespective of whether solicitors are involved or public funding is available.

Non-committal cases

Her Majesty's Courts Service will provide an interpreter if that is the only way that a litigant can take part in a hearing. The relevant circumstances are:

Where the person:

  1. Cannot speak or understand the language of the court well enough to take part in the hearing.
  2. Cannot get public funding.
  3. Cannot afford to privately fund an interpreter, and has no family member, or friend, who can attend to interpret for them and who is acceptable to the court.

If the case is publicly funded, Community Legal Service funding may be available. If the case is privately funded parties have to supply their own interpreters.

All Courts

For foreign language interpreters in any court proceedings HMCS arranges and pays for interpreters in accordance with a standard set of terms and conditions (pdf file) which include minimum daily payment rates (£85 on a weekday, £110 at weekends and bank holidays) - applies qualification criteria from national agreement

The LSC encourage the use of interpreters who are on the National Register of Public Service - Interpreters Access to the register requires a subscription. Payment for interpreters is an allowable disbursement for licensed & controlled work according to funding code decision making guidance (at 3C 009 para 4a).

There is a good summary of interpreter qualifications in the national agreement for use of interpreters in criminal justice system . This also has a useful summary of other sources of interpreters if fully qualified interpreters not available including links to the professional bodies representing specific types of interpreters eg lipspeakers & information about sources of translators.

The National Register of Public Service Interpreters has approved a booklet full of good advice about working with interpreters.

Some practice points:

* If possible use a member of NRPSI or National Registers of Communication Professionals Working with Deaf and Deafblind People

* Avoid using an interpreter who has been involved in any police investigation (although sometimes this will be unavoidable because a very rare language is involved)

* It may be possible for 1 interpreter to interpret for more than 1 person in relation to what goes on in court but this will not normally be appropriate during any confidential discussions such as when taking instructions.

* Consider if one interpreter can manage the whole of a case - especially if sign language interpreter is being used

* Most of the codes of conduct for interpreters specifically request them to provide assistance with cultural issues particularly where relevant to interpretation and require interpreters to interrupt if they feel that there has been a misunderstanding of a linguistic or cultural nature.

* Ask your interpreter whether they will be interpreting simultaneously. The NRPSI booklet recommends that you help the interpreter by signalling as you move to a new topic and bear in mind that some languages involve the use of a lot of words to translate one word in English. Make sure that the interpreter is able to keep up and slow down if necessary. Take particular care when you are quoting from documents when your natural tendency is to speak more quickly than normal.

* If using an interpreter for a deaf client who is also a speaker of a foreign language or very rare language it may be necessary to use 2 interpreters - to interpret into 3rd language and then back into English or interpret into foreign language and then sign.

* ‘Facilitated communication’ (a technique used to assist profoundly disabled individuals to communicate) should not be used to provide evidence in support of allegations of abuse or to make diagnostic or treatment decisions (Re D (Evidence: Facilitated Communication) [2001] 1 FLR 148.

For some reason there is much more guidance on use and behaviour of interpreters in criminal cases through the national agreement.

The interpreter's oath is as follows:

I swear by Almighty God that I will well and faithfully interpret and make true explanation of all such matters and things as shall be required of me according to the best of my skill and understanding.

I have always thought that the ability to get through this oath is some kind of an English proficiency test in itself!

Other useful resources

The Association of Police & Court Interpreters publishes a code of practice and has a directory.

Institute of Translation & Interpreting

National Union of Professional Interpreters & Translators (NUPIT) (part of Amicus)

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