Re W concerned a 14-year-old ‘step-child’ of the father of four younger children who had made allegations of sexual abuse about him. Lady Hale (who gave the judgment of the court) noted that there remains a debate on how practice in relation to children’s evidence should be dealt with (eg as to how the recommendations of the Pigot Report should be dealt with in family courts: see ‘Vulnerable Witnesses’ below). Whilst that debate continues it is for the courts to decide, as a matter of law, in each case:
' … There is no problem with the admissibility of hearsay evidence [as explained at para 6]. The problem is whether the current practice of rarely calling children to give live evidence even when they could be called can be reconciled with the Convention rights or even with the elementary principles of justice. That is a question of law for this Court, even if it is one on which we should very much prefer to have the up to date advice of an expert multi-disciplinary committee'.
The aim of a fair trial is to determine the rights of all involved, including those of children who will be harmed if taken away from their families for no good reason, but will ‘be harmed if left in abusive families’ (para ). The court must admit all ‘evidence which bears upon the relevant questions’. And of the evidence of a child:
' When the court is considering whether a particular child should be called as a witness, the court will have to weigh two considerations: the advantages that that will bring to the determination of the truth and the damage it may do to the welfare of this or any other child. A fair trial is a trial which is fair in the light of the issues which have to be decided…'.
The European Convention balance
One of the important differences between Re S and Re W is tha,t in the earlier Supreme Court case, the court was concerned with evidence from a child as party, but in Re S the court was concerned with the evidence of a child as witness. Of another vulnerable individual as witness – a young adult who alleged abuse by a father in children proceedings – Lady Hale confirmed that the Art 6 rights of all the parties (ie not witnesses) were ‘in play’ (Re A (Sexual Abuse: Disclosure)  UKSC 60,  1 FLR 948):
' … There are the article 6 rights of all three parties to the proceedings, A [child], M [mother] and F [father], to have a fair trial in the determination of their civil rights. The right to a fair trial is absolute but the question of what is fair may depend upon the circumstances of the case. There are the article 8 rights of A, M and F to respect for their private and family lives. There is also the article 8 right of X [witness] to respect for her private life. Article 8 rights are qualified and can be interfered with if it is necessary in a democratic society in order to protect the rights of others'.
Both Re A and Re S were concerned with a vulnerable witness; but in Re A the witness (X) was now adult, whilst in Re S the witness remained a child. By contrast, in Re W the evidence was from a child subject to proceedings.
The Court of Appeal in Re S  links the welfare of a child as witness with those of a child as party (as in Re W):
' … [In Re W at para 22] Baroness Hale forecast that the result of striking the balance [between demands of justice and the welfare of the child] may well be that the child should not be called to give evidence in the great majority of cases. In paragraph 30, having observed that the "essential test is whether justice can be done to all the parties without further questioning of the child", she predicted that the consequence of the balancing exercise that has to be done by the court "will usually be that the additional benefits to the court's task in calling the child do not outweigh the additional harm that it will do to the child".'
These are not Art 6 questions as far as the witness is concerned – as Lady Hale made clear in Re A (above): only the parties – such as K and the children in the proceedings – have Art 6 (and Art 8) rights. In such cases as Re S the child witness’s rights stand on her welfare alone.
Compelling a child to give evidence
The question of whether a child was compellable in family proceedings was not formally before the court (the issue was whether the judge was correct to manage the case as she did). However the parties agreed the law on compellability of a child, and this was summarised by Black LJ thus:
' … It may be helpful to record that counsel agreed that a competent child is a compellable witness in civil proceedings and that a witness summons could have been issued under section 31G of the Matrimonial and Family Proceedings Act 1984 if appropriate. Theoretically, the penalties for failing to attend in answer to a witness summons are committal to custody and/or a fine. However, there can be no detention for contempt of a person under the age of 18, see sections 89 and 108 of the Powers of Criminal Courts (Sentencing) Act 2000'.
Gloster LJ dissent – other measures for a child’s evidence
Gloster LJ dissented. She stressed the duty on the local authority to establish their application, the changes of mind of K and that it was ‘highly unsatisfactory’ that the court should have relied, for evidence that K would not give evidence, only on K’s guardian and the social worker. As with the other judges Gloster LJ assumed that Re W should apply to a child witness as to a child party (para ). Her main criticism was that it was ‘wrong [for the judge] not to explore other ways in which K could have given evidence’ (para ).
As long ago as 2010 Lady Hale looked at the extent to which family courts lag behind the criminal courts in dealing with evidence from vulnerable witness in Re W (paras –); and she touches on the point again in Re A (paras –). Since February 2015 the Family Procedure Rules Committee have been considering recommendations as to how evidence from children might be put before the court such as via intermediaries, or other special measures (see Report of the Vulnerable Witnesses and Children Working Group February 2015 and draft amendment rules). Matrimonial and Family Proceedings Act 1984, s 31F(6) (in force since April 2014) may give the court the power to act as intermediary where a witness is to be in examined by a party.
Of other measures available to the judge, Gloster LJ commented:
' … This was a case that cried out for special measures so as to ensure that the judge received direct evidence from K in relation to the allegations, and, in particular, her retraction of them, and was not forced to rely on the very unsatisfactory secondary evidence of the social worker and the Guardian as to their interpretation of K's evidence. In my judgment some sort of measure should have been in place to ensure that the judge heard directly from K on the fact-finding hearing'.
This lack of consideration of the options for receiving K’s evidence, and therefore permitting its effective challenge by the father, said Gloster LJ, denied the appellant father a fair trial (paras  and ) and would have led her to allow the appeal.
See further Penny Cooper, 'Like ducks to water? How family courts have taken to the use of intermediaries for vulnerable witnesses and parties' due to publish in the March issue of Family Law.