Each year about 40,000 children each year give evidence in criminal proceedings; often with special measures, but the fact remains that they still give evidence. In the family court social workers, guardians, parents and indeed their advocates generally start from the perspective that children should never give evidence in court. The Court of Appeal in Re E (A Child)[2016] EWCA Civ 473 heavily criticises this practice and concludes that such a presumption is contrary both to the binding decision of the Supreme Court in Re W (Children)(Family Proceedings: Evidence)[2010] UKSC 12 and Article 6 of the European Court on Human Rights.

This issue has recently come to the fore as a result of a fact-finding hearing in care proceedings before HHJ Watson (sitting as a Deputy High Court Judge) who made a number of findings of sexual abuse against a father and his teenage son (A). The judge determined that the abuse was perpetrated against A and three other children. What the judge did not do was hear evidence from any of the children. She declined an application for the children to give evidence during the fact-finding process and determined that the issue would be kept under review during the trial. The Court of Appeal allowed the appeal against the findings and criticised the "process and procedure together with the judge's overall analysis"

So how do we change this mindset?

Well the starting point as we all know is Re W and the relevant factors as set out by Baroness Hale. These should be considered with (from paragraph 9) the Working Party of the Family Justice Guidelines on the issue of Children Giving Evidence in Family Proceedings [2012] Fam Law 79.

The Guidelines themselves set out 21 factors to which the court should have regard when determining whether a child should give oral evidence in the determination of a fair trial. The Guidelines require the court to carry out a balancing exercise ‘between the following primary considerations:

i)the possible advantages that the child will bring to the determination of truth balanced against:

ii)the possible damage to the child’s welfare from giving evidence i.e. the risk of harm to the child from giving evidence’

It is very clear that the question of children giving evidence should be determined at the earliest stage and certainly not on the eve of trial. There will be have to be an evaluation of the available evidence and whether the child’s evidence would assist the court in determining the issues. This will obviously require a full consideration of the ABE evidence. This will mean obtaining it from the police as soon as possible and not simply relying on police summaries. There really should be a separate hearing on this issue, with skeleton arguments and for the advocates to have watched the ABEs (and indeed the judge) prior to this hearing. The funding for this work should make for an interesting discussion with the LAA.

Whilst it remains good practice for the court to obtain the analysis of the guardian on whether to call a child to give evidence, it is the court’s decision alone as to whether a child gives evidence. McFarlane LJ recognises in Re E that guardians often start from the premise that the child will suffer emotional harm should they give evidence. Is not this also the view of almost every social worker? The court must be alive to this argument and must thus balance this as just one factor to be weighed against the possible advantages of the child giving evidence in a determination to find the truth. Such emotional harm may be temporary as balanced against the prospect of a fair trial. What is certainly the case is that the emotional harm argument should not, as appears to be the case presently, represent the start and the finish of the argument.

The court will have to give a ‘full and sophisticated evaluation of the relevant factors and provide a judgment’. For many this will be a significant shift, but should certainly emphasis the need for this to be in the forefront of the court’s mind.

As a consequence the Court of Appeal note that, in accordance with recommendations from the President's working group on children and other vulnerable witnesses, the FPR 2010 will soon be amended to take account of the decision in Re W.

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