Children proceedings: a fair trial

How different were things in 2016? As explained at 3.70, in Re S (Care Proceedings: Case Management) [2016] EWCA Civ 83, [2017] 1 FLR 1476 the Court of Appeal was confronted by a 15-year-old (K) whose statements to a social worker and children’s guardian had led to a judge to decide – though in the absence of hearing live evidence from K – that her young niece should be found to be suffering significant harm. This decision was upheld by Black and Vos LJJ.

The third member of the Court of Appeal, Gloster LJ, would have allowed the father’s appeal and required K to give evidence, albeit with special measures (see Chapter 3, Part 7). She said:

‘[58] … This case has left me with a deep sense of unease…

[64] … There was no adequate consideration by the judge of the impact on the appellant’s case of the inability of his counsel to cross-examine K as to the allegations and her retraction of, or unwillingness to proceed with, them. The consequences for the appellant, and his infant children, leaving aside his relationship with his partner, were monumentally serious if K’s allegations against him were accepted….

[65] …. In my judgment, the judge failed to appreciate that the critical issue was whether or not the appellant could have had a fair trial without the ability of challenging K’s evidence in any realistic way.’

In both cases, over 25 years apart, a father was condemned by a family court on the untested, hearsay evidence of a ‘child’; but a ‘child’ who is competent to give evidence in criminal proceedings (Youth Justice and Criminal Evidence Act 1999, s 53(1)). In Gillick terms the child witness would have been well able to express views and to be heard. In both cases the father had no opportunity to cross examine – even to put questions in writing – to his accuser. In criminal proceedings, anyone charged with a criminal offence has right to ‘examine or have examined witnesses against him’ or her (European Convention 1950, Art 6.3(d)); albeit with use of special measures (Re D (a minor)) v Camberwell Green Youth Court [2005] UKHL 4, [2005] 1 WLR 393; and see 3.22). In family proceedings that basic right – part of the Art 6 right to a fair trial – is not available.

This book examines these rights and other aspects of the law in relation to children and their evidence. The working out of the recommendations for children in family proceedings (following the work of the Vulnerable Witnesses and Children Working Group (considered in Chapter 1)) remains to be seen. The effects of EU withdrawal will be felt in children law as it will in many others.

The law is stated as I understand it to be at 4 September 2017.

This preface introduces Children’s Views and Evidence which can be purchased here.

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