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Family Law

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25 JUN 2013

EVIDENCE: Re G and E (Vulnerable Witnesses) [2011] EWHC 4063 (Fam)

(Family Division, Pauffley J, 16 June 2011)

The 17-year-old girl had significant learning difficulties and functioned at around the level of an 8-year old. She made allegations of sexual abuse against her father and care proceedings were initiated in relation to herself and her 7-year-old brother. The Official Solicitor, who acted for the girl, was of the provisional view that she should not be called to give evidence.

Two expert reports, one from a psychologist and one from a psychiatrist assessed the girl and found that with the appropriate support and safeguards she would be competent to give evidence. The Official Solicitor maintained his stance. Drawing on the guidance in Re W [2010] UKSC 12, the only sensible conclusion was that the girl should be required to give live evidence.

The local authority's case upon threshold was based upon the girl's allegations. The case against the parents rested on the sexual abuse allegations against the father and the mother's inability to protect her.

The judge's role in such a case was both inquisitorial and paternalistic. He or she was required to watch, assess and make constant judgments as to the utility, fairness and impact upon the witness of continuing. A balance had to be struck between on the one hand enabling a fair process and on the other protecting the vulnerable. The barristers would be permitted to begin questioning the girl in the usual way and whether or not that was allowed to continue would depend on the quality of the evidence given and the extent to which she was exhibiting signs of discomfort by reason of the switches in the identity of the questioner. 


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