Re W (Children)
| Jurisdiction | England & Wales |
| Judge | LADY HALE |
| Judgment Date | 03 March 2010 |
| Neutral Citation | [2010] UKSC 12 |
| Date | 03 March 2010 |
| Court | Supreme Court |
Lord Walker
Lady Hale
Lord Brown
Lord Mance
Lord Kerr
Appellant
Charles Geekie QC
Michael Liebrecht
(Instructed by Dutton Gregory LLP)
Respondent
Lucinda Davis
Sarah Earley
(Instructed by The County Council Legal Services)
Respondent
Kate Branigan QC
Maggie Jones
(Instructed by Larcomes LLP)
LADY HALE giving the judgment of the court
At issue in this case are the principles which should guide the exercise of the court's discretion in deciding whether to order a child to attend to give evidence in family proceedings. The current approach was stated by Smith LJ in LM v Medway Council, RM and YM[2007] EWCA Civ 9, [2007] 1 FLR 1698, at para 44:
"The correct starting point … is that it is undesirable that a child should have to give evidence in care proceedings and that particular justification will be required before that course is taken. There will be some cases in which it will be right to make an order. In my view they will be rare."
She went on to explain the factors which should guide the judge in considering whether to make the order, at para 45:
"… the judge will have to balance the need for the evidence in the circumstances of the case against what he assesses to be the potential for harm to the child. In assessing the need for oral evidence … the judge should, in my view, take account of the importance of the evidence to the process of his decision about the child's future. It may be that the child's future cannot satisfactorily be determined without that evidence. In assessing the risk of harm or oppression, the judge should take heed of current research into the effect on children of giving evidence and should not rely only upon his impression of the child, although that will of course be relevant."
That approach was based upon the earlier authority of Butler-Sloss LJ in R v B County Council, ex parte P [1991] 1 WLR 221 and Wilson J in Re P (Witness Summons) [1997] 2 FLR 447. It was endorsed by Wilson LJ in the Medway case and by Wall and Thorpe LJJ in SW v Portsmouth City Council; Re W (children: concurrent care and criminal proceedings) [2009] EWCA 644, [2009] 3 FCR 1. And it was followed by Wall and Wilson LJJ in their joint judgment in the present case: [2010] EWCA Civ 57. Each had previously stated that in all their years of experience in the Family Division of the High Court he had never heard oral evidence from a child in care proceedings. That is also my own experience.
The complaint, very moderately advanced by Mr Geekie QC, is that a "starting point" of undesirability, placing the burden upon the person wishing to cross-examine a child to show some "particular justification" for doing so, gives insufficient weight to the Convention rights of all concerned. All the parties in care proceedings are entitled to a fair hearing in the determination of their civil rights and obligations – the parents who stand to lose their children if allegations of abuse are made out, the children who stand to lose their parents if allegations of abuse are made out, but also stand to suffer abuse or further abuse if they are left at home because those allegations cannot be proved. And it is not only their article 6 rights which are in play. The civil rights in issue are also Convention rights in themselves – the right to respect for the family lives of the parents and their children but also the right to respect for the private lives of the children, which include their rights to be protected from attacks upon their physical and psychological integrity: X and Y v The Netherlands (1985) 8 EHRR 235. Even a "stranger" child, whose future is not in issue in the proceedings but whose statements are relevant, has privacy interests which deserve respect.
Hence, argues Mr Geekie, there should be no starting point or presumption that such cases will be rare. Instead, the court should adopt the approach explained by Lord Steyn in In re S (Identification: Restrictions on Publication) [2004] UKHL 47, [2005] 1 AC 593, at para 17, when balancing of the right to respect for private and family life in article 8 and the right to freedom of expression in article 10:
"First, neither article has as such precedence over the other. Secondly, where the values of the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each."
Mr Geekie understands that article 6 is not a qualified right in the same way that article 8 is a qualified right, but he accepts that what is entailed in a fair hearing in Childen Act proceedings will have to take account of the article 8 rights of all concerned. All he asks for is "an intense focus" upon their comparative importance rather than an assumption that the one will almost always trump the other.
The background
The starting point of English criminal and civil procedure has historically been that facts must be proved by oral evidence given on oath before the court which can then be tested by cross-examination. Hearsay evidence was mostly inadmissible. But wardship proceedings in the High Court were an exception. The High Court was exercising a protective parental jurisdiction over its wards in which their welfare and not the rights of the parties was the paramount consideration: see In re K (Infants) [1965] AC 201; Re W (Minors) (Wardship: Evidence) [1990] 1 FLR 203. It was assumed that hearsay was also admissible in proceedings about the future of children in other courts. But the Court of Appeal held otherwise in H v H (Minor)(Child Abuse: Evidence)[1990] Fam 86 in relation to matrimonial and guardianship proceedings and Otton J held otherwise in Bradford City Metropolitan Council v K (Minors)[1990] Fam 140 in relation to care proceedings in juvenile courts.
The result was an addition to the Children Bill then going through Parliament, which became section 96 of the Children Act 1989. Subsections (1) and (2) allow a child to give unsworn evidence in any civil proceedings, even if he does not understand the nature of an oath, provided that he understands that it is his duty to tell the truth and has sufficient understanding to justify his evidence being heard. Subsections (3) to (5) provide for the Lord Chancellor (with the concurrence of the Lord Chief Justice) to make provision by order for the admissibility in civil proceedings of hearsay evidence relating to the upbringing, maintenance or welfare of a child. The Children (Admissibility of Hearsay Evidence) Order 1993, SI 1993/621, simply provides that such evidence shall be admissible "notwithstanding any rule of law relating to hearsay". It does not make the more detailed provision allowed for by section 96(5).
Meanwhile, there had also been developments in the criminal courts, not in relation to the admissibility of hearsay, but in relation to the way in which a child's evidence might be given. In 1989, the Report of the Advisory Group on Video Evidence (the Pigot Report) recommended that both the evidence-in-chief and cross-examination of child witnesses should be video-recorded and the recording stand as their evidence at the trial. The Group received evidence that "most children are disturbed to a greater or lesser extent by giving evidence in court" which was a "harmful, oppressive and often traumatic experience" (para 2.10). They attached "particular importance to the psychiatric opinion we received which suggests that not only do abused children who testify in court exhibit more signs of disturbed behaviour than those who do not, but that the effects of a court appearance are most severe and prolonged in those who have suffered the worst abuse and those without family support" (para 2.12).
The Criminal Justice Act 1991 implemented the Pigot Report's proposals for video-recorded evidence-in-chief but not for cross-examination. A Memorandum of Good Practice on Video Recorded Interviews with Child Witnesses for Criminal Proceedings, drawing on expert psychological advice, was published in 1992; replaced in 2002 by Achieving Best Evidence in Criminal Proceedings: Guidance for Vulnerable or Intimidated Witnesses, including Children; and again in 2007 by Achieving Best Evidence in Criminal Proceedings: Guidance on Interviewing Victims and Witnesses, and Using Special Measures. As its name implies, the aim is to enable witnesses who would not otherwise be able to give of their best in a criminal trial to do so.
The Youth Justice and Criminal Evidence Act 1999 now provides for a variety of special measures to assist children (and other vulnerable witnesses) to give evidence in criminal cases. These include screens, live television links, using video-recordings as evidence-in-chief, providing aids to communication and examining the witness through an approved intermediary. (There is also provision for cross-examination and re-examination to be video-recorded but there are no plans to bring this into force.) The 1999 Act also allows witnesses of any age to give unsworn evidence in criminal proceedings unless it appears to the court that they are unable to understand the questions put or to give intelligible answers. On top of these measures designed to improve the ways in which the evidence of these witnesses is put before the court, the Criminal Justice Act 2003 now allows for hearsay evidence to be given in criminal trials in a much wider set of circumstances than used to be the case.
Family proceedings are typically very different from criminal proceedings. There is often a mass of documentary evidence, much of it hearsay, from which a picture can be built up or inferences drawn. A child may reveal what...
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