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Family Law

The leading authority on all aspects of family law

23 JUL 2014

Evidence, Practice and Procedure: Children proceedings – evidence from ‘protected’ witnesses

David Burrows

Solicitor Advocate

@dbfamilylaw

Evidence, Practice and Procedure: Children proceedings – evidence from ‘protected’ witnesses
The status of the evidence of children and of vulnerable witnesses has twice been before the Court of Appeal recently. Re J (A Child) [2014] EWCA Civ 875, [2014] 2 FLR (forthcoming) was a further rerun of the Supreme Court case (via Pauffley J in the Family Division) of Re A (Sexual Abuse: Disclosure) [2012] UKSC 60, [2013] 1 FLR 948. The evidence of (a vulnerable witness (X) in child contact proceedings could not be relied on, said the Court of Appeal, against the father applicant (paras [104] and [110]) after various efforts had been made by Pauffley J to deal with the evidence in a way which was fair to the father.

In Re B (Child Evidence) [2014] EWCA Civ 1015 the Court of Appeal considered how a court, in private children proceedings, should receive evidence from another child of the family. She was not a party, but might be able to give evidence relevant to findings of fact in the proceedings in question. Her mother’s partner was seeking contact with her (half) brother (their exact relationship is not clear from the report). Her expected evidence as to at least three incidents of violence might be relevant to the case.

Justice to the parties

The later case took as its starting point for a child’s evidence Re W (Children) (Abuse: Oral Evidence) [2010] UKSC 12, [2010] 1 FLR 1485. That case concerned whether a child, the subject of care proceedings, should be called to give evidence. Baroness Hale concluded (para [30]) that the test must be ‘whether justice can be done to all the parties without further questioning of the child’; but that it was justice to all parties – drawing a balance of Convention rights – which should be the basis for a decision. It was not a question only of giving priority to whether the child should give evidence:
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[22] … The existing law erects a presumption against a child giving evidence which requires to be rebutted by anyone seeking to put questions to the child. That cannot be reconciled with the approach of the ECtHR, which always aims to strike a fair balance between competing 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. But even in criminal proceedings account must be taken of the article 8 rights of the perceived victim: see SN v Sweden (App No 34209/96), 2 July 2002, BAILII: [2002] ECHR 551. Striking that 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.
The court must balance on the one hand ‘determination of the truth’ as against ‘the damage it may do to the welfare of this or any other child [if their evidence has to be given to the court]. A fair trial is a trial which is fair in the light of the issues which have to be decided’ (para [24]).

In Re B the judge had decided, after careful consideration in accordance with Re W, that the evidence of a 13-year-old daughter to the mother of a 5-year-old son ((half) daughter of the father applicant in contact proceedings) in the first instance should be approached by being obtained by a court ‘adviser’. The order:

[5] … envisaged that she may actually proceed to put questions to G. The parties were directed to agree and provide to the Adviser "a list of proposed questions … that they would seek to be put to G". The officer was then to meet G in a neutral venue and it was:
…left to the Adviser's professional judgment as how to conduct the interviews and whether or not the questions should or should not be put to G and if so the format and formulation of the questions or any additional questions the Adviser feels appropriate to the issues in Re W but the Court's provisional expectation would be that none of the questions proposed by the parties should be put on the first occasion or until the Adviser feels appropriate.
The court said that it wanted the ‘adviser’s’ report to cover:

  1. Would it be appropriate ‘or within G’s best interests’ to answer questions prepared by the parties;
  2. Whether G was willing to answer questions or attend a fact finding hearing to give oral evidence; and 
  3. ‘If the “adviser” [so] decided’ to put the questions to G, and report her answers.

Evidence from children and vulnerable witnesses

The position after Re B is therefore as follows:

  1. Child witnesses as parties can be required to give evidence: this will depend on the justice of the case balanced against the welfare of the child (Re W (Children) (Abuse: Oral Evidence) [2010] UKSC 12, [2010] 1 FLR 1485);
  2. Similar principles apply to child witnesses in private law proceedings even though they are not directly party to the proceedings (Re B (Child Evidence) [2014] EWCA Civ 1015)
  3. A vulnerable witness in children proceedings remains open to cross-examination (by some means: Re A (Sexual Abuse: Disclosure) [2012] UKSC 60, [2013] 1 FLR 948).
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