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Family Law

The leading authority on all aspects of family law

15 FEB 2016

Re S (Children) [2016] EWCA Civ 83

Re S (Children) [2016] EWCA Civ 83
(Court of Appeal, Black, Gloster and Vos LJJ, 9 February 2016)

Public law children – Evidence – Sexual abuse allegations – Case management decision to not require 15-year-old complainant to give oral evidence at fact-finding hearing - Appeal

The father’s appeal from case management decisions not requiring the 15-year-old complainant to give oral evidence during a fact-finding hearing was dismissed.

Care proceedings were initiated in respect of the father's two children after the 15-year-old paternal aunt alleged that he had sexually abused her since she was 6. Prior to the fact-finding hearing and criminal proceedings the aunt made several attempts to halt the investigation either by saying she had got justice as the abuse had now stopped or by retracting the allegations.

In case a care order would be necessary in respect of the aunt the judge directed a s 37 report to be prepared. The guardian was called upon to ascertain information about her maturity and vulnerabilities and her wishes and feelings about giving oral evidence and whether she would be likely to suffer harm if she were called to give evidence.

In the guardian's report the aunt was said to have repeated her wish for the proceedings to be dropped. She had at times expressed a wish to give oral evidence and the social worker felt that if she wasn't given the opportunity to convey her feelings to the court she would suffer further emotional difficulties. Both the guardian and the social worker concluded that it would not be in her best interests to give oral evidence.

The judge determined that the aunt should not be required to give oral evidence as it was unlikely to assist the court very greatly and it would cause her emotional harm. She also concluded that her two friends whom she had told about the abuse should not give oral evidence as they had been adversely affected by the process so far and were receiving support through counselling. Overall it would not be proportionate to require them to give oral evidence.

The judge found the allegations proved and a supervision order was made on the basis that the children would live with the mother and have weekly supervised contact with the father.

The father appealed against case management decisions that the paternal aunt and two of her friends would not give oral evidence at the fact-finding hearing.

The appeal was dismissed. The Court of Appeal would rarely interfere with case management decisions and there were no grounds for interfering with the decisions in this case.

The finding of anal abuse was set aside. There had been no such complaint by the aunt of that nature and the medical evidence was insufficient to found a finding of it.

Gloster LJ dissented. The case raised Art 6, European Convention issues and the outcome had serious consequences to the life of the father and his children. The decision that the aunt should not be called to give evidence was taken without adequately weighing the relevant considerations set out in Re W (Children) [2010] UKSC 12. The father had not received a fair trial in accordance with Art 6 of the European Convention and as a result the Art 8 rights of the father and his children had been seriously infringed.

Case No: B4/2015/0191 & 0192
Neutral Citation Number: [2016] EWCA Civ 83



Royal Courts of Justice

Date: 09/02/2016

Before :




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Re S (Children)

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Mr Andrew Bagchi QC & Miss Carly Henley (instructed by Hay & Kilner Solicitors) for the Appellant
Ms Rachel Langdale QC & Mrs Fiona Walker (instructed by North Tyneside Council Legal Services) for the Respondent
Mr Nicholas Stonor QC (instructed by Caris Robson solicitors) for the Children’s Guardian

Hearing date: 26th November 2015

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Re S (Children) [2016] EWCA Civ 83


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