Children giving evidence in family proceedings: a pocket guide to the law

The relevant legal principles that apply to the question of children giving evidence in public law proceedings have recently been re-iterated by McFarlane LJ in E (A Child) [2016] EWCA Civ 473, in particular [46] – [68].

This reminder – of course – takes place against the backdrop that, “It is of note that, despite the passage of some six years since the Supreme Court decision in Re W, this court has been told that the previous culture and practice of the family courts remains largely unchanged with the previous presumption against children giving evidence remaining intact. That state of affairs is plainly contrary to the binding decision of the Supreme Court which was that such a presumption is contrary to Article 6 of the European Convention on Human Rights”, per McFarlane LJ, at [56].

By way of a quick guide, those principles, in short, are:

1. The question should be determined at an early stage and in any event well before the planned trial date, E (A Child), at [58];

2. Baroness Hale JSC considered the principles in depth in Re W (Children) (Family Proceedings: Evidence) [2010] UKSC 12; [2010] 1 WLR 701. The court has to weigh two considerations: the advantages that it will bring to the determination of the truth and the damage it may do to the welfare of this or any other child, Re W (Children), at [24];

3. In evaluating the first of those considerations, magnetic factors will include: (1) the issues that have to be decided properly to determine the case, (2) the quality of the current evidence, (3) the quality of any ABE interview, (4) the nature of any challenge to that interview, and (5) the age and maturity of the child – and the length of time since the events in question, Re W (Children), at [25];

4. And, re the second: (1) the age and maturity of the child – and the length of time since the events in question, (2) support (or lack of) from family or other sources, (3) child’s own wishes and feelings: a child should rarely, if ever, be obliged to give evidence, (4) view of the children’s guardian, and (5) existence of parallel criminal proceedings, Re W (Children), at [26];

5. Typically, a child will be protected from the full glare of the court room by way of special measure – for example, by video link: E (A Child), at [46];

6. The court will not be able to come to a conclusion on the issue unless it has undertaken an evaluation of the evidence that is otherwise available. Where there has been an ABE interview, and the quality and/or content of that interview are to be challenged, it is likely that the judge will have to view the DVD before being in a position to decide the Re W issue, E (A Child), at [58];

7. Court should also have regard to the Working Party of the Family Justice Council Guidelines on the issue of Children Giving Evidence in Family Proceedings issued in December 2011 [2012] Fam Law 69. The Guidelines, specifically developed post-Re W, contain a list of 21 factors to which the court should have regard;

8. It is good practice to have a written report from the children's guardian and submissions on behalf of the child before deciding whether that child should be called as a witness, E (A Child), at [61];

9. Where there are concurrent or linked criminal proceedings, there should be close liaison between the respective parties and the allocated judges and ideally linked directions hearings. The police / CPS should be informed of any proposal that a child give evidence in family proceedings and their views obtained before any such decision is made, Children Giving Evidence in Family Proceedings, at [11].

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