The Voice of the Child
The Supreme Court has removed the presumption against children giving evidence in family proceedings. Ayeesha Bhutta assesses the practical implications of this key ruling and outlines the issues local authorities need to consider.
In the recent case of Re W (2010) UKSC 12, (2010) 1 FLR 1486, five judges of the Supreme Court considered the sensitive and difficult issue of children giving evidence in family proceedings. The court overruled the previous presumption that such evidence was undesirable and should be confined to rare cases. The Supreme Court ruled that instead any court tackling this issue should weigh up the competing consideration of the advantages of a child’s evidence and the damage giving evidence many cause to the child.
Law prior to Re W
Children giving evidence in the family courts is a rare and novel event. The family courts sought to shield children from the traumatic experience. This approach was summed up by Smith LJ in LM (by her Guardian) v. Medway Council, RM and YM (2007), EWCA Civ 9, (2007) 1 FLR 1698.
The judge said: “The correct starting point...is that it is undesirable that a child should have to give evidence in care proceedings and that particular justification will be required before that course is taken. There will be some cases in which it will be right to make an order. In my view they will be rare.”
In contrast to the approach of the family courts, children have been able to be called to give evidence. The only test is: are they able understand the questions put to them and answer them comprehensively (s53 Youth Justice and Criminal Evidence Act 1999)? Children as young as four have given evidence in criminal proceedings (for example R v Barker (2010) EWCA Crim 4 – where a four-year-old girl gave evidence about anal rape which occurred when she was two).
Re W
In Re W a 14-year-old girl had made allegations of sexual abuse against her step-father. She was interviewed by the police and the stepfather arrested and charged. Previously the girl had made similar allegations which she had later withdrawn. The girl and four younger children (who were the biological children of the mother and stepfather) aged between eight years and eighteen months had been removed into foster care. The stepfather denied the allegations and wanted the girl to give evidence in the care proceedings.
Giving the judgment of the court, Baroness Hale of Richmond considered that when deciding if a child should give evidence the court should weigh up “the advantages that [the child giving evidence] will bring to the determination of the truth and the damage it may do to this or any other child.” [para 24]
The factors that need to be considered are amplified by Baroness Hale at paragraph 25 and 26. Those in favour of the child giving evidence include:
- The issues to determine in the case
- The quality of the evidence available
- The age and maturity of the child
- The length of time since the events alleged.
Those against children being the subject of questioning in the family courts are:
- The age and maturity of the child
- The views of the child (an unwilling child should rarely, if ever, be obliged to give evidence)
- The views of the guardian
- The risk of harm to the child in light of the established research
- The impact on and of any concurrent criminal proceedings.
Whilst there is now not a presumption that a child should not give evidence, Baroness Hale ‘predicted’ that the balance will usual fall against children appearing in the family courts.
Practical Considerations
The most common situation in the family where a child may be called upon to give evidence is care proceedings. In light of the judgement in Re W, applications for children to appear may become more common.
Applications
The Supreme Court endorsed the suggestion that the issue of children giving evidence should be considered at the Case Management Conference. In practise this may not be possible; however, by the Issues Resolution Hearing the issues should be clearer. Although it will usually be the parents or other alleged perpetrator who wish to call the child, social workers and their lawyers may need to be alert to the type of cases where the issue may arise. For example, one of the more common will be sexual abuse cases, particularly where earlier allegations have been retracted or unsubstantiated.
As the quality of the evidence is a factor in the decision to be taken by the court, the local authority may wish to ensure that the best evidence is available, for example by early liaison with the police, schools and foster carers. The local authority social workers may also (particularly in cases where a guardian is not yet appointed) wish to appropriately ascertain the child’s views on giving evidence.
Whilst the test for competency in terms of giving evidence is not a high one, it may be relevant, for example, where children have learning or other difficulties. The local authorities’ lawyers may need to observe the Achieving Best Evidence interview to assess whether the child can understand and answer questions. In some cases in may be helpful to instruct a child and adolescent psychiatrist to report on this narrow issue.
Child giving evidence
If a child is to give evidence they will need to be prepared appropriately to do so. The Department of Health and the then Department of Constitutional Affairs have published guidance on the preparation of vulnerable witnesses for court and their treatment at court (Achieving Best Evidence in Criminal Proceeding (2007), available on the CPS website). Whilst this guidance is prepared for the criminal process, it can be useful to also consider in the family courts.
Often the social worker or guardian will be the most appropriate person to speak to a child about giving evidence. The NSPCC and Barnados also run programmes for child witnesses in the criminal courts and their expertise may be used. Such preparation includes the watching of ABE interview(s), visits to the court, and talking to the child after giving evidence.
In the court itself children will almost always give their evidence by video link. Whether the child should be in the same building as the parents (so, for example, risk meeting them by chance in the corridors) or in another court/venue should be considered. Other ‘special measures’ such as pre-recorded cross-examinations and/or questions via an intermediary may also be of use in reducing the trauma for the child.
Who should accompany the child may also be important. Often children will have made allegations to their foster carers or social worker who may also be witnesses. Finding a trusted and known adult who the child will feel secure with should also be considered at an early stage.
Research carried out by the NSPCC and Nuffield Foundation in 2009 (Measuring Up? Plotnikoff and Woolfson) found that many children find giving evidence difficult and stressful. The local authority may need to put in place support for the child after the court dates have passed.
Finally, the Family Justice Council has set up a multi-disciplinary committee to consider the issue of children giving evidence in the family court. It is hoped they will provide further guidance tailored to the very delicate issues surrounding children giving evidence in the family courts.
Ayeesha Bhutta is a barrister at Field Court Chambers (www.fieldcourt.co.uk).
