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Can children be called as witnesses in family proceedings?

View profile for Nicole Thornley
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Can children be called as witnesses in family proceedings?

Whether a child should give evidence in family courts has always been an important question for the Court and parents. Before Re W 2010 UKSC 12 views swayed. Baroness Hale told us there was no presumption either way, a fresh piece of paper is needed, a line down the middle, pros on one side cons on the other. She said that a rebuttable presumption against a child giving evidence, “cannot be reconciled with the approach of the European Court of Human Rights which always aims to strike a fair balance between competing European Convention Rights. Article 6 requires that the proceedings overall be fair and this normally entails an opportunity to challenge the evidence presented by the other side….. Striking the balance in care proceedings may well mean that the child should not be called to give evidence in the great majority of cases, but that is a result and not a presumption or even a starting point.”

The test was established as the advantages that it will bring to the determination of the truth; and the damage that it may do to the welfare of the child. In terms of the child’s welfare the Court should look at the age and maturity of the child together with the length of time since events in question; what support from the family or other sources the child has; child’s own wishes and feelings. The Court endorsed the view that an unwilling child should rarely, if ever, be obliged to give evidence; the views of the Guardian and those with parental responsibility; the risk of delay; the potential damage if the child is not called since the family Court has to give less weight to the child’s evidence in such circumstances; any risks to the specific child in the circumstances of that case.

The important thing is that the questions which challenge a child’s account are fairly put to the child so that he/she can answer them, not that Counsel or the solicitor should be able to question the child directly. The required questions could be put to the child through an intermediary or video links, so that the child does not have to face a formal Court setting and does not have to come face to face with the person against whom they are making the allegation. Judges are encouraged to explain to children that they should say if they do not understand a question and the Judicial College produced guidance in 2012. McFarlane LJ in the recent case of Re E(a Child) 2016 EWCA Civ 473 bemoaned the failure of Courts the length and breadth of the Kingdom to apply Re W and the guidelines of the President’s working group on children and other vulnerable witnesses. In Re E McFarlane LJ noted that in criminal proceedings, about 40,000 children give evidence each year (typically with special measures such as a video link) and that conversely, “the Supreme Court’s decision in Re W seems to have gone unheeded for five or more years since it was given.” Such that the previous culture and practice of the family courts has remained largely unchanged with the presumption against children giving evidence intact. He concluded that such a presumption is contrary to both the binding decision of the Supreme Court and Article 6 (right to a fair trial) of European Convention of Human Rights. Any decision must be made by the trial judge taking into account the full guidance given in Re W.