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23 JAN 2007

CARE PROCEEDINGS: LM (By her Guardian) v Medway Council, RM and YM) [2007] EWCA Civ 9

(Court of Appeal; Longmore, Smith and Wilson LJJ; 19 January 2007)

The mother and the 10-year-old child had made allegations against the father of sexual and physical abuse of the child, and of domestic violence against the mother. The mother later retracted the allegations, claiming she had instructed the child to make false allegations. The authority did not accept the retraction and began care proceedings, which were opposed by the father. The mother and father wished the child to give evidence at the care hearing by video link. The judge granted the application, stating that in this respect the law was moving on" and that if a child could be questioned in a court setting without damage to the child that was oppressive, normally, if they were of appropriate age, the child might be questioned. The authority and the guardian appealed.

The starting point was that it was undesirable that a child should have to give evidence in care proceedings and that particular justification would be required before that course was taken. It was presently normal for the child not to be questioned in a court setting. In considering whether to make an order, the judge would have to balance the need for the evidence in the circumstances of the case against what he assessed to be the potential for harm to the child. The judge should also take particular account of the importance of the evidence to the process of his decision about the child's future. In assessing the risk of harm or oppression the judge should take heed of current research into the effect on children of giving evidence and should not rely upon his impression of the child, although that would be relevant. In this case the judge's need for this evidence in his search for the right decision in respect of the child's future outweighed the concerns about the harm that might be done to her by giving evidence.

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