Court of Appeal calls for review of oral evidence from children

The Court of Appeal has called for a review of the rules on the giving of oral evidence by children in family cases.

The court was considering the case of a 14-year-old girl, C, 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The teenager had previously claimed her stepfather had sexually abused her, but later withdrawn the allegations and said she had been lying.

Delivering judgment with Wilson LJ in Re W (Children) [2010] EWCA Civ 57, Lord Justice Wall said the case involved 'profoundly serious allegations' made against the stepfather, including oral sex and rape.

'The father strenuously denies all the allegations,' Wall LJ said. 'His case is that, just as in respect of the allegations which she made in 2008 but (so he says) rightly retracted, C has maliciously invented the current allegations, perhaps in part as an expression of her jealousy of his much closer relationship with her sister than with her.'

As a result, Wall LJ said the man faced criminal charges, to which he has pleaded not guilty.

In September 2009, the local authority told the judge that it was agreed by all sides, including by the children's guardian, that she should give evidence in the care proceedings via video link.

Judge Marshall decided to take further evidence on the question and the local authority changed its position, saying it would rely on the original interview as hearsay evidence.

Wall LJ said that C was 14 and had presented herself as mature and composed in the original interview.

He said the local authority's application for care orders was founded entirely upon her allegations and, apart from forensic evidence 'which may prove significant', there was no corroboration of her allegations.

The year before, whether in making or in retracting her allegations, C had lied.

'Were her current allegations to be found proved in the care proceedings, it is doubtful whether the four younger children would be allowed to return to live in a home in which the father might be living with the mother or, depending on a risk assessment, even to live with the mother alone.

'The establishment of C's allegations to the satisfaction of the judge might impact on the father's ability to be allowed to have a normal relationship with any other child yet to be born to him.

'Thus, for the lives of the father, the mother, the four younger children and any child yet to be born to the father, the judge's enquiry into the truth of C's allegations could scarcely be more important. In any event, C will almost certainly be giving oral evidence to the jury in the criminal proceedings.'

Wall LJ said that initially it was accepted on all sides that C would give oral evidence in the care proceedings, she was expecting to give oral evidence and she remained willing to do so.

He said the judge's application of the existing jurisprudence to the facts of the case led him to suggest that the time had come for consideration of the possibility of change in the approach to the giving of oral evidence by children in family proceedings.

He said the Court of Appeal ruling would be sent to Sir Mark Potter, president of the Family Division.

'It will be for him to decide whether to take the issue further, but one course open to him would be for him to refer it to the Family Justice Council, which might indeed see fit to set up a multi-disciplinary subcommittee to look into it.'

Lord Rimer agreed, reluctantly, that the man's appeal should be dismissed, but endorsed the proposal that the rules relating to the calling of oral evidence from children should be reviewed.