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Presumption that children should not give evidence abolished by Supreme Court

9 March 2010

The Supreme Court has responded to a call from the Court of Appeal for a review of the rules on child witnesses in care proceedings by scrapping the presumption that children should not give oral evidence.

The move is all the more remarkable as it comes only three weeks after the Court of Appeal suggested in the same case that a committee of the Family Justice Council should review the rules (see Solicitors Journal 154/6, 16 February 2010).

Delivering judgment on behalf of the Supreme Court in Re W (Children) [2010] UKSC 12, Lady Hale said the president of the Family Division, Sir Mark Potter, had already referred the matter to a committee chaired by Lord Justice Thorpe.

However, she disagreed with Lord Justice Wall, who gave the leading judgment in the Court of Appeal jointly with Lord Justice Wilson, that the matter “was not one for the judiciary to solve”.

She went on: “While this must be true of the criminal justice process, with the greatest of respect to them, it cannot be true of the family justice process. There is no problem with the admissibility of hearsay evidence.

“The problem is whether the current practice of rarely calling children to give live evidence even when they could be called can be reconciled with the Convention rights or even with the elementary principles of justice.

“That is a question of law for this court, even if it is one on which we should very much prefer to have the up-to-date advice of an expert multi-disciplinary committee.”

Re W centred on a 14-year-old girl who claimed she had been raped by her stepfather. She was immediately taken into care as were the man’s four young children with his current partner. The man also faces criminal charges, to which he has pleaded not guilty.

The girl had previously claimed her stepfather had sexually abused her, but later withdrew the allegations.

The local authority and the children’s guardian agreed that she should give evidence in the care proceedings via video link, but, after the judge decided to seek further evidence, the council changed its mind.

“However tempting it may be to leave the issue until it has received the expert scrutiny of a multi-disciplinary committee, we are satisfied that we cannot do so,” Lady Hale said.

“The existing law erects a presumption against a child giving evidence which requires to be rebutted by anyone seeking to put questions to the child. That cannot be reconciled with the approach of the European Court of Human Rights, which always aims to strike a fair balance between competing Convention rights.

“…Striking that 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.”

Lady Hale said that, when considering whether a child should be called as a witness, the court must weigh up the advantages it would be bring to determining the truth and the damage it might do to the child, or any other child.

She went on: “That risk of harm is an ever-present feature to which, on the present evidence, the court must give great weight. The risk, and therefore the weight, may vary from case to case, but the court must always take it into account and does not need expert evidence in order to do so.”

Lady Hale allowed the stepfather’s appeal, but remitted the decision as to whether the girl should give evidence to Portsmouth County Court. Lords Walker, Brown, Mance and Kerr contributed to the Supreme Court judgment.

Categorised in:

Children Procedures Costs Local government