President of Family Division says more children to give evidence in proceedings

Courts should expect to hear evidence from children in family proceedings more often, the President of the Family Division has said.

Sir James Munby’s remarks came in an unsuccessful appeal against three children being returned to Hungary after their mother had unlawfully brought them to the UK during proceedings in Hungary.

The mother appealed against this on the grounds that children L and F objected to being sent to Hungary and that there was a grave risk that returning the children would expose them to physical or psychological harm or otherwise place them in an intolerable situation.

Sir James and Arden LJ dismissed the appeals, concluding that the deputy judge who made the order that they should go to Hungary had neither misdirected himself nor fettered his discretion.

The deputy judge had allowed 14-year-old L and six-year-old F to tell the court of their preferences, though the third child G, aged four, was held to be too young to participate.

Both children preferred to remain in the UK but the deputy judge said this was not necessarily the determining factor in the case,

Sir James said in his ruling: “In my judgment, no error of fact has been identified in the judgment of the deputy judge. Nor has any error of law or principle. The deputy judge took into account all the relevant factors and attributed to them, as he was entitled to, such weight as he thought appropriate in the circumstances. He was entitled to decide as he did and for the reasons he gave. This court is not entitled to interfere with his decision nor, even in the light of the additional material which is now before us, with the order he made.”

He went on to note that proper adherence to the principles laid down by the Supreme Court in In Re W would see “ever increasing numbers of children giving evidence in family proceedings.

“One of the drivers for this is…that a meeting between the child and the judge is an opportunity: (i) for the judge to hear what the child may wish to say and (ii) for the child to hear the judge explain the nature of the process;" that the "purpose of the meeting is not to obtain evidence and the judge should not, therefore, probe or seek to test whatever it is that the child wishes to say;" and that if "the child volunteers evidence that would or might be relevant to the outcome of the proceedings, the judge should report back to the parties and determine whether, and if so how, that evidence should be adduced”.

Sir James said: “The corollary of this is that, quite apart from all the other drivers for change, there are likely for this reason alone to be more cases in future than hitherto where the child either gives evidence, without being joined as a party, or is joined as a party.”

Mark Smulian