The appeal in Re W (Children) is listed to be heard on Monday 1 and Tuesday 2 March.  It has reached the Supreme Court with great expedition.  The first instance judgment was given on 30 November 2009, the Court of Appeal hearing took place on 21 December 2009 and judgment was given ([2010] EWCA Civ 57) on 9 February 2010.  The Supreme Court gave permission to appeal on 17 February 2010 and have listed it for next week – a total of less than 13 weeks from first instance to Supreme Court hearing.   The urgency of the case arises because it is concerned with the admissibility of evidence in a “fact finding” hearing in public law children’s proceedings.  These were originally due to take place on 4 January 2010 but have been postponed.  It appears that they are due to be heard shortly.

The County Court judge refused the father’s application that the oldest of the 5 children, a 14 year old girl known as “C” should attend the hearing be cross-examined.   C had made detailed allegations of sexual abuse against the father and, as a result, she and the other four children involved were taken into foster care.  C was willing to give oral evidence and it had originally been envisaged that she would. 

The position was, however, reversed on the basis of four authorities to the effect that it was normally undesirable for a child to give evidence in care proceedings (see, in particular LM v Medway Council [2007] EWCA Civ 9; [2007] 1 FLR 1698 and Re W (Care Order: Sexual Abuse) [2009] EWCA Civ 644, [2009] 2 FLR 1106).  Wall and Wilson LJJ reviewed that line of authority and “refined” their thoughts on the current state of the law, noting that there  “no meeting of the minds between the criminal and family lawyers” – with children being cross examined in the criminal justice system and not being cross-examined in family cases.  In their joint judgment they expressed the view that

“the references in the family jurisprudence … that the “starting point’ is that the child’s oral evidence is undesirable and that it is ‘rare’ to order it, do no more than represent this court’s concern to date … about the emotional health of the a childre subjected to cross-examination” [28]

In short, the existing case law bound the judge and the Court of Appeal.  They held that the judge had properly exercised her discretion and dismissed the appeal [29].

They were, however, concerned about the position and suggested that the time had come for consideration of the possibility of some change in approach.  They proposed to send the judgments to the President of the Family Division to decide whether to take the issue further – with perhaps a multi-disciplinary committee being set up to look into the issue of children’s evidence.  They commented that

“Consideration of any introduction of more widespread oral evidence of children in family proceedings will, no doubt, als include a study of recent legislative provisions for lessening the ordeal for children of giving oral evidence in criminal proceedings” [32]

In contrast to the two family judges – Wall and Wilson LJJ – the third member of the Court, Rimer LJ, is a former Chancery judge.  In his judgment he makes clear that his initial reaction was to allow the appeal but that, on reconsideration, he understands why the judge made the decision she did and agreed that the appeal should be dismissed.  However, he arrived at this conclusion “with disquiet” [36].   Having reviewed the authorities, Rimer LJ said that it was

intuitively unsatisfactory, and likely to be productive of injustice, for the courts to approach the type of issue with which [the first instance judge] was faced on the basis of a presumption that it is undersirable and unusual to call a child to give evidence …” [64]

His final endorsement of the judge’s decision was not in ringing tones:

“ultimately, with hesitation, I have come to the conclusion that her decision should be upheld.  It was a decision that was, for all practical purposes, imposed on her by a mixture of jurisprudence and practice, being however a mixture whose underlying soundness I would respectfully question” [69]

The case involves a “clash of cultures” between family lawyers and judges on the one hand, and criminal and civll litigators on the other.  Outside the area of care proceedings it is is inconceivable that findings of serious abuse could be made without the benefit of oral evidence.  That being said, the family lawyers’ approach is motivated by a proper and understandable concern for the obviously damaging effects of cross-examination of children in the context of care proceedings.  It will be of great interest to see how the “non-family lawyer” majority on the Supreme Court react to this dilemma.