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On Wednesday 3 March 2010 the Supreme Court delivered judgment in W (children) [2010] UKSC 12, one day after hearing argument and just in time for a fact-finding hearing listed this week. The issue for the Court was whether the trial Judge had been wrong to refuse the father’s application for his 14-year-old step-daughter, who had made allegations against him of serious sexual abuse, to be called to give oral evidence. The father’s appeal has been allowed, and the issue remitted to the trial Judge to be dealt with at the start of this week’s hearing.

The issue of children giving evidence in care proceedings, particularly in fact-finding hearings where their evidence may go to the heart of whether or not the threshold criteria are made out, has arisen on a number of occasions in recent years. The question has become more urgent since the courts have been obliged to consider the Convention rights both of the adult accused (to a fair trial) and of the child and other family members (to respect for private and family life.) At the same time it has not escaped the notice of the family courts that children are now giving evidence on a regular basis in criminal proceedings, almost always with the assistance of ‘special measures’ – and sometimes on the very allegations which may fall to be tested again in the parallel care proceedings, where the outcome may often be even more serious both for accuser and accused.

These factors gave rise to some questioning of the family courts’ traditional reluctance to expose to the traumatic experience of giving oral evidence children who it is the court’s function to protect. At one stage it appeared that older children especially might find themselves giving direct oral evidence far more frequently in public law fact-finding hearings: see for example the typically robust judgment of Coleridge J in B v Torbay Council [2006] EWHC 3675, where a child had admitted to having fabricated allegations of anal rape (in later proceedings some years after the initial allegations had been found proved), leading the Judge to make some trenchant observations about the fairness of the original process. However, shortly afterwards the Court of Appeal, in LM v Medway Council, RM and YM [2007] 1 FLR 1698, affirmed the traditional ‘starting point’ that ‘it is undesirable that a child should have to give evidence in care proceedings and that particular justification will be required before that course is taken.’ 

W (children) changes the law, at least for the time being (the issue of children playing a more active role in all forms of family proceedings being one that is due to be considered more widely in the near future.) For now, the Supreme Court has done away altogether with the ‘starting point’ (read presumption) that children should not give oral evidence, in public law proceedings at least. In doing so it has imposed new guidance, some of which has the potential to bring about significant changes to the family justice system as a whole.

The factual matrix in W was straightforward. A 14-year-old with four younger half-siblings alleged serious sexual abuse against her stepfather. Initially there was agreement between the parties that she should give oral evidence, as she wished to do. The local authority subsequently changed its position and the trial Judge therefore had to decide the issue; the father maintaining that he should have the opportunity to test, through direct cross-examination, the allegations made against him. Based on the authorities, the trial Judge refused his application; that refusal was upheld by the Court of Appeal.

In removing the ‘presumption’ that it is only in an exceptional case that a child will give oral evidence in care proceedings, the Supreme Court, in a single judgment delivered by Baroness Hale, has acknowledged the special, inquisitorial nature of Children Act proceedings (exemplified by the admissibility of wide categories of evidence, including hearsay evidence), and also the substantial body of expert opinion to the effect that for an abused and traumatised child, giving oral evidence in court and being cross-examined may itself become an abusive experience. These factors are still powerful and will carry weight; the task for the court in most cases will be to balance competing Convention rights, which means weighing two considerations: ‘the advantages that [calling the child] will bring to the determination of the truth and the damage it may do to the welfare of this or any other child.’

The Court’s guidance to the Judges who must carry out this exercise includes some innovative and potentially controversial suggestions. For example, it is suggested that one factor to consider may be the quality of the ‘other evidence’: where there is sufficient to make the findings needed ‘whether or not the child is cross-examined’, this may be a reason not to call the child (but surely, if one keeps Article 6 well in mind, a parent facing a mountain of evidence against him should have a stronger case for being permitted to mount an effective challenge to it?) It is also suggested by the Supreme Court that ‘an unwilling child should rarely, if ever, be obliged to give evidence’; scope there for the unscrupulous parent to take steps to ensure that the child becomes, or remains, unwilling?

In terms of the practicalities of calling children to give evidence, the Court’s guidance is wide-ranging. It is suggested that Judges may consider an early (shortly after ABE interview) video’d cross-examination; or, more radically, putting pre-formulated questions to the child via an intermediary – possibly even the court itself – rather than directly by the parent’s advocate. The Court also floats the idea of introducing criminal court-style ‘special measures’; but, as one commentator on this blog has already wondered, is there really any prospect of funding that with no legislation or formal practice direction in place?

Baroness Hale concludes with the expectation that it will continue to be rare for children to give evidence in care proceedings; but rarity ‘should be a consequence of the exercise rather than a threshold test.’ Otherwise the pitch is wide open. There has been a feeling amongst some practitioners and judiciary for some time that children are not effectively heard in Children Act proceedings; W (children) may just be the catalyst to translate this into one of the most significant shifts in family court practice for many years.

Madeleine Reardon practices in all areas of family law at 1KBW.  She has a particular interest in both public and private law children work. She is an update editor of Hershman and McFarlane: Children Law and Practice’.