Re F (Minors) (Solicitors' Interviews)
| Jurisdiction | England & Wales |
| Judgment Date | 1995 |
| Year | 1995 |
| Date | 1995 |
| Court | Court of Appeal (Civil Division) |
NEILL, WAITE AND PETER GIBSON, L JJ
Children – interview for criminal proceedings – children present when father allegedly assaulted mother – parents not married – father not having parental rights – mother refusing to consent to children being interviewed by father's solicitor in criminal proceedings – father applying for specific issue order – whether order should be granted.
The parents, who were not married, had twin boys who were now aged 11 having been born in April 1983. Within three years of their birth the relationship between the parents broke down completely. There was a series of non-molestation orders against the father and he had been committed to prison for breach of them on four separate occasions.
The mother alleged that on 11 July 1993 the father went to her home in a drunken state and assaulted her physically and sexually. He was charged with offences of assault occasioning bodily harm, indecent assault, and affray of which he was due to stand trial at the Crown Court.
The twins were in the mother's care on the day of the alleged assaults. The father's defence solicitor wished to interview them to discover how much, if anything, either of them had seen of the incident. The mother had sole parental responsibility for the twins and she refused her consent to the twins being interviewed. The father accordingly applied to a county court for a specific issue order authorizing the interview. The Judge granted the order.
The mother appealed.
Held – dismissing the appeal: In the criminal proceedings the father could call the twins as witnesses even if they were not to supply a statement. In deciding to make the specific issue order the Judge had taken into account that the father was very attached to the twins and they to him so that it was a vital ingredient in any consideration of the children's welfare that the father should have the opportunity of a fair trial. The provision of a statement could lead to the possibility that the twins could give no evidence of any value at all so that their testimony could be dispensed with. Children were citizens owing duties to society as a whole which were appropriate to their years and understanding. Whether a child should be called to give evidence in a criminal trial was entirely a matter for the trial Judge. It was submitted that the general welfare conditions under s 1 of the Children Act 1989 applied. Without deciding that question but assuming that the provisions of s 1(1) and (3) did apply, it was implicit in the whole approach of the Judge that he had had regard to the risk of distress to the twins as a result of being interviewed and that he had clearly
assumed that it was an ordeal they would want to be spared if possible. The Judge had weighed the scale of distress involved in an interview against the advantage to be secured to the twin's welfare of a fair trial being accorded to the father.
Statutory provisions referred to:Children Act 1989, ss 1 and 37.
Case referred to in judgment:R (Ward: Witness), Re [1991] FCR 642; [1991] Fam 56; [1991] 2 WLR 912; [1991] 2 All ER 193.
AppealAppeal from Mr Recorder Boyle.
Stephen Bellamy for the mother.
Sally Porter for the father.
LORD JUSTICE WAITE.The respondent to this appeal is the father of twin boys who are now aged 11. In a few days from now he is due to stand trial at the Crown Court on charges of assault occasioning bodily harm, indecent assault and affray. The alleged victim of the assaults is his former common law wife. She is the mother of the twins. All the charges arise out of a single incident which is said to have occurred at her home.
It is common ground that the boys were in her care on the day in question. The father's defence lawyers in the criminal proceedings wish to interview them in order to discover how much, if anything, either of them saw of the incident itself, or of its aftermath...
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