Supreme Court removes the presumption that a child should only give evidence in exceptional cases

WED 03/03/2010 - The Supreme Court has unanimously allowed the appeal of Re W and has remitted the question of whether the child should give evidence, and if so in what way, to a fact finding hearing before Her Honour Judge Marshall scheduled for 8 March.

In doing so, the Supreme Court has reformulated the approach a family court should take when exercising its discretion to decide whether to order a child to give live evidence in family proceedings. It removes the presumption or starting point of the current test, which is rarely if ever rebutted, that it is only in the exceptional case that a child should be so called.

At issue in this case is the care of five children. The mother and father at the relevant time were in a relationship and the father is the biological parent of the four youngest children. A sixth child is due to be born to the couple this month. The proceedings began in June 2009 when the eldest child, a 14 year old girl, alleged that her de facto stepfather had seriously sexually abused her. All the children were taken into foster care and the four younger children are having supervised contact with both parents.

The father has since been charged with thirteen criminal offences and is currently on bail awaiting trial. In the family proceedings the parties originally agreed that there would be a fact finding hearing in which the 14 year old girl would give evidence via a video link. The judge however asked for further argument on whether she should do so. The Local Authority, having had time to consider the material received from the police, decided that they no longer wished to call the girl as a witness. In November 2009 the judge decided to refuse the father's application for her to be called. Instead, she would rely on the other evidence, including a video-recorded interview with the child.

The Court of Appeal dismissed the father's appeal. They did, however, express some concern about the test laid down in previous decisions of that court and suggested that the matter might be considered by the Family Justice Council. The father appealed to the Supreme Court.

The Supreme Court held that the current law, which erects a presumption against a child giving live evidence in family proceedings, cannot be reconciled with the approach of the European Court of Human Rights, which aims to strike a fair balance between competing Convention rights. In care proceedings there must be a balance struck between the article 6 requirement of fairness, which normally entails the opportunity to challenge evidence, and the article 8 right to respect for private and family life of all the people directly and indirectly involved.

The court set out a number of factors that a family court should consider when conducting this balancing exercise.

Giving the lead judgment of the court, Lady Hale said: "The essential test is whether justice can be done to all the parties without further questioning of the child. The relevant factors are simply an amplification of the existing approach. What the court has done however is remove the presumption or starting point; that a child is rarely called to give evidence will now be a consequence of conducting a balancing exercise and not the threshold test.

"In this case the trial judge had approached her decision from that starting point. The Supreme Court could not be confident that the judge would have reached the same result had she approached the issue without this starting point, although she might well have done so. Nor did the court consider it appropriate to exercise its own discretion, given that all of the relevant material was not before the court," Lady Hale said.