Children giving evidence in court Private Law Children Children giving evidence in court

The Father appealed saying that the case law over- emphasised the fact that children should only give evidence in care proceedings in exceptional circumstances. The Court of Appeal dismissed the father's appeal but requested that the matter needed to be reviewed and sent the judgment to the then President to consider.

The Guideline on Children Giving Evidence As a result the Family Justice Council published guideline on the giving of evidence The guidelines set out that the court is entitled to hear from CAFCASS and the parties as to the hearing of evidence

Understanding the child’s views 1. The judge is entitled to expect the lawyer for the child and/or the Cafcass officer: (i) to advise whether the child wishes to meet the Judge; (ii) if so, to explain from the child’s perspective, the purpose of the meeting; (iii) to advise whether it accords with the welfare interests of the child for such a meeting take place; and (iv) to identify the purpose of the proposed meeting as perceived by the child’s professional representative/s. 2. The other parties shall be entitled to make representations as to any proposed meeting with the Judge before the Judge decides whether or not it shall take place.

Re W [2010] EWCA Civ 57 C, the step-daughter of the appellant, had made allegations of sexual abuse against the appellant before retracting them. The LA commenced care proceedings and C was taken into foster care. At a case management conference all parties agreed permission should be given to call C to give oral evidence but the judge of her own volition called for argument on the point. At the hearing the LA and Guardian changed their position and the Judge refused to call C due to existing case law. The father's appeals were heard in quick succession by the Court of Appeal and Supreme Court.

The Supreme Court Decision The case of Re W radically changed the court’s approach The decision removed the presumption or starting point that it is only in the exceptional case that a child should be called Baroness Hale concluded that the court will have to weigh the advantages of a child's oral evidence to the determination of the truth against the damage it may do to the welfare of that, or any other, child (para.24).

Baroness Hale’s Judgment "[22] 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 European Convention rights. Article 6 requires that the proceedings overall be fair and this normally entails an opportunity to challenge the evidence presented by the other side… 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.

[23] The object of the proceedings is to achieve a fair trial in the determination of the rights of all the people involved. Children are harmed if they are taken away from their families for no good reason. Children are harmed if they are left in abusive families. This means that the court must admit all the evidence which bears upon the relevant questions: whether the threshold criteria justifying State intervention have been proved; if they have, what action if any will be in the best interests of the child? The court cannot ignore relevant evidence just because other evidence might have been better. It will have to do the best it can on what it has." [My emphasis]

Factors the court should consider when deciding if a child should give evidence: (i) The issues necessary to determine the case; (ii) Whether the child's oral evidence is necessary in order to determine those issues; (iii) The quality of any available ABE interview; (iv) The age and maturity of the child; (v) The length of time since the relevant events occurred.

The damage giving evidence may cause to a child The court must assess: (i) The age and maturity of the child; (ii) The length of time since the events occurred; (iii) The support (or lack of it) which the child has from family or other sources; (iv) The child's own wishes and feelings about giving evidence ('an unwilling child should rarely, if ever, be obliged to give evidence', para.26); (v) The views of the guardian and if appropriate those with parental responsibility; (vi) The risk of delay to the proceedings if evidence is given; (vii) Whether any concurrent criminal proceedings might increase the risk of harm to the child caused in the family courts.

Human Rights Considerations Article 3 of the United Nations Convention of the Rights of the Child ("CRC") states that: "In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration." Article 12 of the CRC provides that: "(i) States parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child. (ii) For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law."

Child’s attendance at court The issue of a child's attendance at court was revisited by the High Court in the recent case of Re K (A Child) [2011] EWHC 1082, reported sub nom A City Council v T, J & K [2011] 2 FLR 803. A LA applied to keep K, a 13 year old girl, in secure accommodation for three months. K did not want to be in care, or secure accommodation. Peter Jackson J described her as 'an angry and damaged girl who is determined to fight the system until she is allowed to go home.' At an initial hearing that K did not attend, a circuit judge granted an interim secure accommodation order. Prior to the hearing of the full application, K made it clear to her guardian that she wanted to attend on the next occasion. The judge referred the matter to the High Court for a preliminary decision on this issue.

Peter Jackson J referred to Re W (Secure Accommodation Order: Attendance at Court) [1994] 2 FLR 1092 which concerned a younger child (aged 10), but was otherwise factually similar. In Re W, Ewbank J concluded that: "… the court must always bear in mind that attendance at court is likely to be harmful to the child, and the court should only allow the child to attend if it is satisfied that attendance is in the interests of the child…" Peter Jackson J observed, however, that 'In the generation that has passed since the decision in Re W… thinking about these issues has undoubtedly evolved… It can no longer be presumed that attendance in court is likely to be harmful…'     Peter Jackson J commented that children should not be required to establish that their attendance at court is in their best interests: 'The starting point should be an open evaluation of the consequences of attendance or non-attendance in terms of the welfare of the child and the court's ability to manage its proceedings fairly.'

Private Law Children – case update

Re: M conditions on residence The Court of Appeal held that an order to share care of a child (W) contained an impermissible condition on a child arrangements order (CAO), because it provided that the mother (M) relocated, with W, from Newcastle, to London, where the father (F) lived.After M had taken W from London to live in Newcastle, F applied for a CAO providing for W to live with him. The judge ordered: W return from Newcastle to live with F in London. If M moved to London, W should live with F and M under an equal shared time arrangement. M's appeal was allowed and the order was set aside: an order requiring M to move to London goes beyond what the law can require, save in exceptional circumstances. The circumstances here were not exceptional. The order used the choice of home for W to encourage M to return to London, which would be impermissible if the judge had made that an overt condition (Re E [1997] EWCA Civ 3084 and Re S [2001] EWCA Civ 847). Despite finding a power imbalance between the parties, the judge chose a care arrangement without considering the consequences. The findings of fact had not been drawn fully into the welfare analysis. There is no longer any need to impose a shared living arrangements order because both parents have equal status (section 11, Children and Families Act 2014). Despite recent extensive changes in the law, the court retains the power to impose a condition on orders under section 8 of the Children Act 1989 (CA 1989) (section 11(7), CA 1989). Re M highlights that it remains an exception for the court to insert a condition as to where in the UK parents live.

M's appeal was allowed and the order was set aside: an order requiring M to move to London goes beyond what the law can require, save in exceptional circumstances. The circumstances here were not exceptional. The order used the choice of home for W to encourage M to return to London, which would be impermissible if the judge had made that an overt condition (Re E [1997] EWCA Civ 3084 and Re S [2001] EWCA Civ 847). Despite finding a power imbalance between the parties, the judge chose a care arrangement without considering the consequences. The findings of fact had not been drawn fully into the welfare analysis. There is no longer any need to impose a shared living arrangements order because both parents have equal status (section 11, Children and Families Act 2014). Despite recent extensive changes in the law, the court retains the power to impose a condition on orders under section 8 of the Children Act 1989 (CA 1989) (section 11(7), CA 1989). Re M highlights that it remains an exception for the court to insert a condition as to where in the UK parents live.

H-B (Children) [2014] EWCA Civ 1729, 15 December 2014 ( F had contact with his daughters (A and B) aged 15 and 13, after separating from M) Following F's remarriage, M applied for a residence order and suspension of contact, when F’s wife behaved violently towards A. Contact did not resume and M made allegations that F had behaved in a sexually inappropriate way towards the children. At a fact- finding hearing, the judge found M’s allegations were untrue. The children were adamant they did not wish to have contact with F, despite therapy and mediation. After protracted proceedings, Wildblood HHJ rejected F’s application for direct contact, made an indirect contact order and an order under section 91(14) of the Children Act 1989, prohibiting F from making further applications without permission. .

Ryder LJ granted F permission to appeal: It was likely the children did not know M's allegations were false: their wishes and feelings could not be properly deduced. The court was obliged to consider every reasonable option to maintain the relationship between F and the children, where F had not perpetrated the harm alleged. Expert evidence about the children's position should have been obtained. A failure to enforce a parent’s right to contact with their child or to facilitate contact can amount to a breach of Article 8 of the European Convention on Human Rights (Hokkannen v Finland [1994] ECHR 32). Ryder LJ held that H-B (Children) is likely to be the first case to consider what a court should do if Article 8 is breached since Re A (Application for Leave) [1998] 1 FLR 1. The test for granting permission to make an application after a section 91(14) order, is whether there is an arguable case. Re A expressed the test as whether the application demonstrates a need for renewed judicial investigation.