Re P (Child: Compellability as Witness)
| Jurisdiction | England & Wales |
| Judgment Date | 1991 |
| Date | 1991 |
| Court | Court of Appeal (Civil Division) |
LORD DONALDSON OF LYMINGTON, MR, NICHOLLS AND BUTLER-SLOSS, L JJ
Care proceedings – allegation of abuse by child – evidence of child's allegations proposed to be adduced by out of court statements made to third parties – parent wishing child to be called – child aged 17 but local authority having information that giving evidence would harm child – whether local authority could be compelled to call child.
Witness – child – care proceedings – allegations of abuse by child – local authority not proposing to call child – parent wishing to cross-examine child – whether witness summons should be issued to allow party to cross-examine – whether court had discretion as to issue of witness summons.
The child, a girl who was born in Sepember 1973, and her sister lived with their step-father and his two young children. In March 1990 the girl, who was then aged 16, made serious allegations of sexual abuse against the step-father. As a result, she and the three younger children were taken into care under place of safety orders. Care proceedings were instituted the same month in respect of all four children and they were retained in care under interim care orders. The substantive hearing was set down for hearing before a stipendiary magistrate in November 1990. In view of evidence from a child psychiatrist and the social worker in charge of the case of the likely harmful effect of giving evidence on the eldest child, who attained the age of 17 in Sepember 1990, the local authority did not propose to call her to give evidence but proposed to rely on statements she had made to the police and the child psychiatrist. When the matter came before the stipendiary magistrate the step-father applied for an order excluding the child's statements and requiring the local authority to call her as a witness. The magistrate refused that application. The step-father then applied under s 97 of the Magistrates' Courts Act 1980 for a witness summons requiring the child to attend to give evidence. He did not wish to call her himself but wished her to be called so that he could cross-examine her. It was accepted that the child was a competent witness who would not attend voluntarily. The stipendiary magistrate held that, as the child had attained the age of 17, he did not have a discretion to refuse to issue a witness summons on the basis that he should have regard to the welfare of the child as required by s 44(1) of the Children and Young Persons Act 1933. However, he stated that if he had found that he did have a discretion he would have exercised it by refusing to issue a witness summons on the ground that the probative value of the child's evidence was outweighed by the damage likely to be done to her. Nevertheless, he refused to issue a witness summons on the basis that the objective was to cross-examine the child and not to introduce material evidence.
The step-father applied for judicial review (i) of the local authority's decision not to call the child to give evidence and (ii) of the refusal of the stipendiary magistrate to grant a witness summons. Sir Stephen Brown, P refused both applications holding (i) that the local authority
[1991] FCR 337 at 338
had not acted unreasonably in refusing to call the child as a witness; and (ii) that as the child was a party to the proceedings and s 2(4) of the Children and Young Persons Act 1969 enabled the court to ensure her presence by summons or warrant, s 97 of the 1980 Act was not applicable; however, he indicated that, by virtue of s 29(1) of the Children and Young Persons Act 1963, which referred to a child attaining the age of 17 after care proceedings had been begun and enabled the court to make any order it could have made if the child had not attained that age, the discretion of the court to act in the interests of the child continued in respect of such a child.
The step-father appealed.
Held – dismissing the appeal: (1) The application for judicial review of the local authority's decision not to call the child to give evidence could not succeed unless the local authority had acted unreasonably within the principles stated in Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 112 JP 55; [1948] 1 KB 223. In this case, the local authority's decision not to call the child was well within the limits of their discretion and as such could not be faulted.
(2) By s 2 of the Evidence Act 1851 the parties in civil proceedings were competent and compellable witnesses. In the present case the child was such a witness and one who could give material evidence but was unwilling to do so. By s 2(6) of the Children and Young Persons Act 1969, s 97 of the Magistrates' Courts Act 1980 applied to care proceedings. Therefore, a witness summons under s 97 could be issued to any party in such proceedings. The provisions of s 2(4) of the 1969 Act, which enabled a summons or warrant to be issued to secure the attendance of the child who was the subject of the proceedings, was concerned solely with attendance and not with the giving of evidence and, therefore, did not exclude the applicability of the power to issue a witness summons under s 97 of the 1980 Act requiring a child who was a party to care proceedings to attend and give evidence. However, the court had a discretion whether to issue a witness summons and could refuse to do so in circumstances which would be oppressive: Morgan v Morgan [1977] Fam 122. Further, in the case of a child the court should, when deciding how to exercise its discretion, have regard to the welfare of the child, including a child who had attained the age of 17 after care proceedings were commenced: s 44(1) of the Children and Young Persons Act 1933 and s 29(1) of the Children and Young Persons Act 1963.
(3) The purpose of s 97 of the 1980 Act was to enable a party to bring to court a witness who he genuinely wished to call himself. It was not designed to enable the applicant to bring to court a witness who he hoped would be called by someone else so he could cross-examine him, and such a use of s 97 would be an abuse of the process of the court.
(4) Although the child's statements to the police and psychiatrist were admissible under the Children (Admissibility Of Hearsay Evidence) Order 1990 made under s 96(3) of the Children Act 1989, such evidence must be handled with the greatest care; the court should look at it anxiously and consider carefully the extent to which it could be relied upon: see Re W (Minors) (Wardship: Evidence) [1990] FCR 286.
Simon Buckhaven for the step-father.
Diana Barnett for the local authority.
Pamela Scriven for the guardian ad litem.
LORD JUSTICE BUTIER-SLOSS.This is an appeal from the dismissal by the President on 4 December 1990 of the appellant's application for judicial review. The matter arises out of the allegations by the appellant's step-daughter of sexual abuse by the appellant, strenuously denied by him, and his efforts to require the girl, whom I shall call J, to give evidence in order that she may be cross-examined and shown to be a liar.
[1991] FCR 337 at 339
The relevant facts are that J, who is 17 and was born on 5 Sepember 1973, is the eldest of four children who until March this year were living with the appellant. J and her sister L are step-children of the appellant and there are two younger children who are his natural children. The mother left some years ago and the appellant ever since has cared for the four children with the help of a succession of female companions. In March 1990, J made serious allegations of sexual abuse against the appellant. As a consequence, the county council was granted place of safety orders in respect of all four children on 21 March. Care proceedings were instituted by the county council in respect of all four children. The police investigated, arrested the appellant and charged him with criminal offences. However, at the magistrates' court on 22 June the prosecution offered no evidence against the appellant and the case was discharged under the provisions of s 6 of the Magistrates' Courts Act 1980.
Interim care orders were made in respect of the children in the care proceedings which were continuing. The substantive hearing came before a stipendiary magistrate sitting in the juvenile court on 5 November.
The appellant's solicitors wrote to the county council requiring them to call J to give evidence in the care proceedings. A written statement made by J to the police and oral statements made by her to a child psychiatrist were to be relied upon by the county council in support of its applications for care orders for all four children. The admissibility of such evidence in care proceedings is provided by the Children (Admissibility of Hearsay Evidence) Order 1990 and was made under the provisions of the Children Act 1989. Rule 2(2) provides:
"In civil proceedings before a juvenile court (a) a statement made by a child – shall be admissible as evidence in connexion with the upbringing, maintenance or welfare of the child, notwithstanding any rule relating to hearsay."
The county council replied to the appellant's solicitors that they did not intend to call J, having regard in particular to evidence in their possession from the child psychiatrist and the social worker...
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