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Can a child give evidence in Family proceedings?

Can a child give evidence in Family proceedings?

In the case of Re E (A Child) [2016] EWCA Civ 473, Lord Justice McFarlane more recently reminded practitioners that:

As is well known, children, even children of a very young age, who have made allegations of abuse which are subsequently the subject of criminal proceedings, are required to give live evidence within the criminal process. It is understood that some 40,000 do so during the course of each year. The child will typically be protected from full exposure to the court room by the use of special measures, for example, answering questions over a live video link. Conversely, for many years the practice and culture in family proceedings was that such children, even if aged in their late teens, would never be required to give live evidence in the family court.

Whether a child should give evidence or not has been a particularly difficult issue for the Family Court for many years.

The issue had been considered answered to some degree and certainty by Baroness Hale in Re W (Children) (Abuse: Oral Evidence) [2010] UKSC 12.

Before the case of Re W, the law was unclear but subsequently Baroness Hale advised practitioners that there was no presumption, either way, to a child giving evidence or not; what was needed was a essentially a balancing exercise to be conducted in each individual case, whereby the benefits of giving evidence were considered on the one side against the negatives on the other.

What Baroness Hale actually went so far as to say was that a rebuttable presumption against a child giving evidence “cannot be reconciled with the approach of the European Court of Human Rights, which always aims to strike a fair balance between competing European Convention Rights. Article 6 requires that the proceedings overall be fair and this normally entails an opportunity to challenge the evidence presented by the other side….. Striking the balance in care proceedings may well mean that the child should not be called to give evidence in the great majority of cases, but that is a result and not a presumption or even a starting point.

Subsequently, the comments made by Baroness Hale have led to Family Court’s considering a two stage test to determine whether a child should give evidence or not:

  • Firstly, what are the advantages that a child giving evidence will bring to the determination of the truth of any matter in dispute?; and
  • Secondly, what damage might the giving of evidence cause to the welfare of the child?

Subsequently, when asked to consider the advantages of a child giving evidence will bring to help determine the truth of a matter, Baroness Hale said that the parties and the court must consider:

  • Whether it is necessary for the findings to be made in order that the case can properly be determined;
  • The quality of the evidence that the court otherwise has;
  • Whether there is sufficient other evidence without the child being cross examined. Sometimes little or nothing can be gained from the child being cross examined orally, especially where there are just generalised accusations of lying;
  • The quality of the Achieving Best Evidence interview;
  • The age and maturity of the child;
  • The time that has elapsed since the events in question.

And in terms of harm the court has said that we need to look at:

  • The age and maturity of the child together with the length of time since the events in question;
  • What support from the family or other sources the child has;
  • The child’s own wishes and feelings about giving evidence must be borne in mind. The court endorsed the view that an unwilling child should rarely, if ever, be obliged to give evidence;
  • The views of the Guardian and, where appropriate, of those with parental responsibility;
  • The risk of delay;
  • The potential damage if the child is not called since the family court has to give less weight to the child’s evidence in such circumstances;
  • Any risks to the specific child in the circumstances of that case.
  • At paragraph 27, Baroness Hale added:

    It does not assume that the most reliable account of any incident is one made from recollection months or years later in the stressful conditions of a courtroom. Nor does it assume that an ‘Old Bailey style’ cross examination is the best way of testing that evidence….. A family court would have to be astute both to protect the child from the harmful and destructive effects of questioning and also to evaluate the answers in the light of the child’s stage of development.

    Her ladyship continued at paragraph 28 that:

    The important thing is that the questions which challenge the child’s account are fairly put to the child so that she can answer them, not that counsel should be able to question her directly. One possibility is an early videoed cross examination as proposed by Pigot [Report of the Advisory Group on Video Evidence(1989)]. Another is cross examination via video link. But another is putting the required questions to her through an intermediary. This could be the court itself, as would be common in continental Europe.

    Of course, there are a whole range of safeguards that can be put in place to protect a child who is to give evidence, such as the use of video links, so that the child does not have to face a formal court setting and does not have to come face to face with the person against whom they are making an allegation. Indeed, beyond this now, the Family Court is taking the additional step to authorising parties to instruct intermediaries with a view to better determining the steps appropriate to allow children to attend court and give evidence, essentially then setting the ground rules to follow.

    However, despite the judicial guidance, Re W is often forgotten about and as illustrated by the recent quoted case above of Re E (A Child) [2016] EWCA Civ 473 where Lord Justice McFarlane bemoaned the failure of courts the length and breadth of the country to properly apply Re W;

    This case should serve as a firm reminder to the judiciary and to the profession of the need to engage fully with all that is required by Re W and the Guidelines of the President’s working group on children and other vulnerable witnesses“.

    But whilst he urged us to engage the factors raised by Baroness Hale “together with any other factors that are relevant to the particular child or the individual case, before coming to a reasoned and considered conclusion on the issue”, he reminded us that:

    Part of any consideration of the overall welfare of a child must be that decisions as to his or her future, or the future of other children, are based, so far as is possible, upon a true understanding of important past events. Whilst the process of giving oral evidence in relation to allegations of past harmful experiences will almost always be an unwelcome one for any child, and for some that process itself may be positively harmful, those negative factors, to which full and proper weight should be given, are but one half of the balancing equation.

    So can a child give evidence in Family proceedings? In short yes, but only when the circumstances of the case warrant it, and the criteria outlined by Re W are met.

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