Supreme Court rules that presumption against children giving evidence not reconcilable with rights to justice under the Convention

11 February 2010 by

Re W (Children) [2010] UKSC 12

SC (Lord Walker, Lady Hale, Lord Brown, Lord Mance, Lord Kerr) March 3 2010

The facts of this case are set out in the report of the Court of Appeal judgment below. In the Supreme Court the stepfather continued his submission that there should be no presumption against a child giving evidence, as that gave insufficient weight to the rights of all concerned under the European Convention on Human Rights 1950.

Read the judgment


Appeal allowed.

The presumption against a child giving evidence could not be reconciled with the approach of the European Court of Human Rights, which always aimed to strike a fair balance between competing Convention rights. For that reason LM v Medway Council (2007) EWCA Civ 9, (2007) 1 FLR 1698, R v B CC Ex p P (1991) 1 WLR 221 CA (Civ Div), P (A Minor) (Witness Summons), Re (1997) 2 FLR 447 CA (Civ Div) and W (Children) (Care Order: Sexual Abuse), Re (2009) EWCA Civ 644, (2009) 2 Cr App R 23 should be overruled. Article 6 required that the proceedings be fair, and that normally entailed an opportunity to challenge evidence presented by the other side. However, even in criminal proceedings, account had to be taken of the Article 8 rights of the perceived victim. Striking that balance in care proceedings might mean that the child was not called in the great majority of cases, but that was a result, and not a presumption. A court considering whether a child should be called would have to weigh the advantages that it would bring to the determination of the truth against the damage it might do to the welfare of that or any other child. In weighing the advantages of calling the child, the court would have to consider: whether it could determine the case without making findings on particular issues; whether, because of the quality of the evidence it already had, there would be nothing useful to be gained from the child’s oral evidence; the quality of any ABE interview; the nature of any challenge a party might wish to make, as the court would be unlikely to be helped by generalised accusations of lying, or by a fishing expedition, though focused questions putting forward a different explanation for certain events could help; and the age and maturity of the child and the length of time since the events in question.

In considering the risk of harm to the child, the court should consider: the child’s age and maturity, and the length of time since the events; the support the child had from family and other sources; the child’s wishes, as an unwilling child should rarely, if ever, be obliged to give evidence; the views of the child’s guardian and, where appropriate, those with parental responsibility; the risk of delay to the proceedings; and, where there were parallel criminal proceedings, the potential increased risk of harm from the likelihood of the child having to give evidence twice. On both sides of the equation, the court had to factor in the steps to be taken to improve the quality of the child’s evidence and at the same time to decrease the risks of harm. The family court was not limited by the usual courtroom procedures or to applying the special measures used in criminal cases by analogy. The important thing was that the questions which challenged the child’s account were fairly put to the child, not that counsel could question the child directly. The possibilities included pre-recorded video cross-examination, cross-examination by video link, and questioning via an intermediary. The question of whether C should be called was remitted to the judge.

The approach in private family proceedings between parents was the same in principle, although there were specific risks. Abuse allegations were not made by a neutral local authority, but by a parent seeking to gain advantage. That did not mean they were false, but it did increase the risk of exaggeration or fabrication. Further, the child would not routinely have the protection of a CAFCASS guardian, and there were many more litigants in person in private proceedings, meaning that the court would have to take very careful precautions to ensure the child was not harmed.

R W (Children) [2010] EWCA Civ 57

CA (Civ Div) (Wall LJ, Wilson LJ, Rimer LJ) February 9 2010

The appellant was step father of C, the oldest of five children, four of whom were the appellant’s biological children. When she was 14 C made allegations of sexual abuse by the appellant which led to care proceedings in respect of all the children. He applied for an order that C should attend a forthcoming fact-finding hearing to give oral evidence and be cross-examined, but the judge refused this application on the basis that it was undesirable for children to give evidence in care proceedings. The result of the judge’s order was that C’s evidence at the fact-finding hearing, at which it would be decided whether sexual abuse had taken place, would be confined to the interview which she had given to the police under the “achieving best evidence” guidance.

In this appeal, the father argued that the jurisprudence on which the judge had relied about the proper approach to the calling of a child to give oral evidence in care proceedings had too swiftly embraced an insufficiently reasoned criterion that children should not give oral evidence in such proceedings save in exceptional circumstances and in particular had failed to grapple with the right to a fair trail and the rights of other family members under Articles 6 and 8 othe European Convention on Human Rights 1950.


Appeal dismissed.

The jurisprudence to which the father particularly objected could not be disregarded as per incuriam and as such was binding on the Court: R v B CC Ex p P (1991) 1 WLR 221 CA (Civ Div), P (A Minor) (Witness Summons), Re (1997) 2 FLR 447 CA (Civ Div), LM v Medway Council (2007) EWCA Civ 9, (2007) 1 FLR 1698. The guidance, namely that the “starting point” was that a child’s oral evidence was undesirable and that it was “rare” to order it, did no more than represent this court’s concern to date, expressed in all four of the relevant authorities, about the emotional health of a child subjected to cross-examination in these circumstances and its prediction of the likely decisiveness of that feature in striking the balance in most cases. The two cases which post-dated the introduction of the Human Rights Act 1998 had not run against the Convention since the court had not been invited to analyse the issue through the prism of Convention rights. In any event, the analysis of the issue through the prism of Convention rights did not generate any significantly different effect from that of the existing jurisprudence, founded firmly as it was on opinion as to what the welfare of the child was likely to demand. Notably, in R v. Horncastle [2009] UKSC 14, [2010] 2 WLR 2, the Supreme Court has held that a defendant’s rights under Article 6 are not necessarily infringed even in circumstances in which his conviction is based solely or to a decisive extent on hearsay evidence.

However, the time had come for consideration to be given to the possibility of some change in the approach to the giving of oral evidence by children in family proceedings. This judgment would be sent to the President of the Family Division, and it would be for him to decide whether to take the issue further; one course would be to refer it to the Family Justice Council, which might indeed see fit to set up a multi-disciplinary subcommittee. Among the many relevant issues were whether the premise behind the existing jurisprudence was an overstatement of the likely damage to children of giving oral evidence; whether there was an age-threshold above and below which different considerations might apply; whether likely damage to a child could be reduced and, if so, what measures might be taken, both before and after a child had given oral evidence, to reduce it.

COMMENT (February 2009)

The question this case asks is whether the premise behind the existing jurisprudence is an overstatement of the likely damage to children of giving oral evidence in family proceedings. The dangers of intimidation and distress consequent on calling a child for cross examination are serious but not so as to justify the failure of the courts over the years to exercise their discretion in an even handed way.

To say, as the appellant father did in this case, that the jurisprudence concerning a particular issue was per incuriam because it did not expressly address Convention rights is a bold statement indeed. If such an argument holds up it suggests not only that the court seized of the matter is free to disregard that jurisprudence but that it is bound to as a public authority (Section 6 HRA). Of course such an approach was doomed to failure in this case but the appellant has succeeded in the sense that he has brought pressure to bear on the courts to address the grave injustice brought about by the existing guidance on child evidence in care proceedings.

The arguments in favour of allowing the alleged perpetrator the chance to cross examine his accuser are particularly compelling in this case.  C was accusing him of sexual violations of the most serious nature. She had made previous allegations of sexual abuse against him in 2008 but had then withdrawn them, asserting that they were lies. Her credibility therefore was in issue and consequently her evidence “cried out” for cross examination. The local authority’s application for care orders was founded entirely upon her allegations, since there was no corroboration. The establishment of C’s allegations would no doubt have impacted on the father’s ability to be allowed to have a normal relationship of any child yet born to him. Thus, for the lives of every member of the family apart from C, the judge’s enquiry into the truth of C’s allegations could scarcely be more important.

Rimer LJ differed from the majority view in that he would have been inclined to uphold the appellant’s submissions had he not felt bound by the Court of Appeal’s own precedents in the matter. After some fairly robust observations about a judge deciding such serious factual issues as child rape without the alleged perpetrator having the right to test the allegations by cross-examination, he goes on to consider the “settled practice” of

He expresses his concern about the problems raised by a case such as this, in which the marginalising any notion that considerations of fairness towards someone like the father have any part to play in the judicial process. Is that really consistent, he asks, with the right of the father, a party to the proceedings, to a fair trial under article 6 of the Convention? (para 48). A survey of the case law in recent decades reflects the fact that the court’s discretion in the matter has only been exercised in one direction,  in favour of the child. The door does not, in Rimer LJ’s words, swing both ways, and therefore it is high time that procedural mechanisms are put in place to enable judges to ensure a fair trial process in these circumstances without being tempted by guidance containing certain presumptions as to how this is to be done. This is surely what Article 6 requires, however it has been implicitly interpreted in this context by the courts since the advent of the Human Rights Act.

Read judgment


Welcome to the UKHRB

This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates

Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.




7/7 Bombings 9/11 A1P1 Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology birds directive blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity circumcision citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Cologne Commission on a Bill of Rights common buzzard common law communications competition confidentiality confiscation order conscientious objection consent conservation constitution contact order contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Criminal Legal Aid criminal records Cybersecurity Damages data protection death penalty declaration of incompatibility defamation DEFRA Democracy village deportation deprivation of liberty derogations Detention devolution Dignitas dignity Dignity in Dying diplomacy director of public prosecutions disability Disability-related harassment disciplinary hearing disclosure Discrimination Discrimination law disease divorce DNA doctors does it matter? domestic violence Dominic Grieve don't ask don't ask don't tell don't tell Doogan and Wood double conviction DPP guidelines drones duty of care ECHR economic and social rights economic loss ECtHR Education election Employment Environment environmental information Equality Act Equality Act 2010 ethics Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice european disability forum European Sanctions Blog Eurozone euthanasia evidence Exclusion extra-jurisdictional reach of ECHR extra-territoriality extradition extradition act extradition procedures extradition review extraordinary rendition Facebook Facebook contempt facial recognition fair procedures Fair Trial faith courts fake news Family family courts family law family legal aid Family life fatal accidents act Fertility fertility treatment FGM fisheries fishing rights foreign criminals foreign office foreign policy France freedom of assembly Freedom of Association Freedom of Expression freedom of information Freedom of Information Act 2000 freedom of movement freedom of speech free speech game birds gangbo gang injunctions Garry Mann gary dobson Gary McFarlane gay discrimination Gay marriage gay rights gay soldiers Gaza Gaza conflict Gender General Dental Council General Election General Medical Council genetic discrimination genetic engineering genetic information genetics genetic testing Google government Grenfell grooming Gun Control gwyneth paltrow gypsies habitats habitats protection Halsbury's Law Exchange hammerton v uk happy new year harassment Hardeep Singh Haringey Council Harkins and Edwards Health healthcare health insurance Heathrow heist heightened scrutiny Henry VII Henry VIII herd immunity hereditary disorder High Court of Justiciary Hirst v UK HIV HJ Iran HM (Iraq) v The Secretary of state for the home department [2010] EWCA Civ 1322 Holder holkham beach holocaust homelessness Home Office Home Office v Tariq homeopathy hooding Hounslow v Powell House of Commons Housing housing benefits Howard League for Penal Reform how judges decide cases hra damages claim Hrant Dink HRLA HS2 hs2 challenge hts Human Fertilisation and Embryology Act Human Fertilisation and Embryology Authority human genome human rights Human Rights Act Human Rights Act 1998 human rights advocacy Human rights and the UK constitution human rights commission human rights conventions human rights damages Human Rights Day human rights decisions Human Rights Information Project human rights news Human Rights Watch human right to education human trafficking hunting Huntington's Disease HXA hyper injunctions Igor Sutyagin illegality defence immigration Immigration/Extradition Immigration Act 2014 immigration appeals immigration detention immigration judge immigration rules immunity increase of sanction India Indonesia Infrastructure Planning Committee inherent jurisdiction inherited disease Inhuman and degrading treatment injunction Inquest Inquests insult insurance insurmountable obstacles intelligence services act intercept evidence interception interests of the child interim remedies international international conflict international criminal court international humanitarian law international human rights international human rights law international law international treaty obligations internet internet service providers internment internship inuit investigation investigative duty in vitro fertilisation Iran iranian bank sanctions Iranian nuclear program Iraq Iraqi asylum seeker Iraq War Ireland irrationality islam Israel Italy iTunes IVF ivory ban jackson reforms Janowiec and Others v Russia ( Japan Jason Smith Jeet Singh Jefferies Jeremy Corbyn jeremy hunt job Jogee John Hemming John Terry joint enterprise joint tenancy Jon Guant Joseph v Spiller journalism judaism judges Judges and Juries judging Judicial activism judicial brevity judicial deference judicial review Judicial Review reform judiciary Julian Assange jurisdiction jury trial JUSTICE Justice and Security Act Justice and Security Bill Justice and Security Green Paper Justice Human Rights Awards JUSTICE Human Rights Awards 2010 just satisfaction Katyn Massacre Kay v Lambeth Kay v UK Ken Clarke Ken Pease Kerry McCarthy Kettling Kings College Klimas koran burning Labour Lady Hale lansley NHS reforms LASPO Law Commission Law Pod UK Law Society Law Society of Scotland leave to enter leave to remain legal aid legal aid cuts Legal Aid desert Legal Aid Reforms legal blogs Legal Certainty legal naughty step Legal Ombudsman legal representation legitimate expectation let as a dwelling Leveson Inquiry Levi Bellfield lewisham hospital closure lgbtq liability Libel libel reform Liberal Democrat Conference Liberty libraries closure library closures Libya licence conditions licence to shoot life insurance life sentence life support limestone pavements limitation lisbon treaty Lithuania Litigation litvinenko live exports local authorities locked in syndrome london borough of merton London Legal Walk London Probation Trust Lord Bingham Lord Bingham of Cornhill Lord Blair Lord Goldsmith lord irvine Lord Judge speech Lord Kerr Lord Lester Lord Neuberger Lord Phillips Lord Rodger Lord Sumption Lord Taylor LSC tender luftur rahman machine learning MAGA Magna Carta mail on sunday Majority Verdict Malcolm Kennedy malice Margaret Thatcher Margin of Appreciation margin of discretion Maria Gallastegui marriage material support maternity pay Matthew Woods Mattu v The University Hospitals of Coventry and Warwickshire NHS Trust [2011] EWHC 2068 (QB) Maya the Cat Mba v London Borough Of Merton McKenzie friend Media and Censorship Medical medical liability medical negligence medical qualifications medical records medicine mental capacity Mental Capacity Act Mental Capacity Act 2005 Mental Health mental health act mental health advocacy mental health awareness Mental Health Courts Mental illness merits review MGN v UK michael gove Midwives migrant crisis Milly Dowler Ministerial Code Ministry of Justice Ministry of Justice cuts misfeasance in public office modern slavery morality morocco mortuaries motherhood Motor Neurone disease Moulton Mousa MP expenses Mr Gul Mr Justice Eady MS (Palestinian Territories) (FC) (Appellant) v Secretary of State for the Home Department murder murder reform Musician's Union Muslim NADA v. SWITZERLAND - 10593/08 - HEJUD [2012] ECHR 1691 naked rambler Naomi Campbell nationality National Pro Bono Week national security Natural England nature conservation naturism Nazi negligence Neuberger neuroscience Newcastle university news News of the World new Supreme Court President NHS NHS Risk Register Nick Clegg Nicklinson Niqaab Noise Regulations 2005 Northern Ireland nuclear challenges nuisance nursing nursing home Obituary Occupy London offensive jokes Offensive Speech offensive t shirt oil spill olympics open justice oppress OPQ v BJM orchestra Osama Bin Laden Oxford University paramountcy principle parental rights parenthood parking spaces parliamentary expenses parliamentary expenses scandal Parliamentary sovereignty Parliament square parole board passive smoking pastor Terry Jones patents Pathway Students Patrick Quinn murder Pensions persecution personal data Personal Injury personality rights perversity Peter and Hazelmary Bull PF and EF v UK Phil Woolas phone hacking phone taps physical and mental disabilities physician assisted death Pinnock Piracy Plagiarism planning planning human rights planning system plebgate POCA podcast points Poland Police police investigations police liability police misconduct police powers police surveillance Policy Exchange report political judges Politics Politics/Public Order poor reporting Pope Pope's visit Pope Benedict portal possession proceedings power of attorney PoW letters to ministers pre-nup pre-nuptial Pre-trial detention predator control pregnancy press press briefing press freedom Prince Charles prince of wales princess caroline of monaco principle of subsidiarity prior restraint prison Prisoners prisoners rights prisoners voting prisoner vote prisoner votes prisoner voting prison numbers Prisons prison vote privacy privacy injunction privacy law through the front door Private life private nuisance private use proceeds of crime Professional Discipline Property proportionality prosecution Protection of Freedoms Act Protection of Freedoms Bill Protest protest camp protest rights Protocol 15 psychiatric hospitals Public/Private public access publication public authorities Public Bodies Bill public inquiries public interest public interest environmental litigation public interest immunity Public Order Public Sector Equality Duty putting the past behind quango quantum quarantine Queen's Speech queer in the 21st century R (on the application of) v Secretary of State for the Home Department & Ors [2011] EWCA Civ 895 R (on the application of) v The General Medical Council [2013] EWHC 2839 (Admin) R (on the application of EH) v Secretary of State for the Home Department [2012] EWHC 2569 (Admin) R (on the application of G) v The Governors of X School Rabone and another v Pennine Care NHS Foundation Trust [2012] UKSC 2 race relations Rachel Corrie Radmacher Raed Salah Mahajna Raed Saleh Ramsgate raptors rehabilitation Reith Lectures Religion resuscitation RightsInfo right to die right to family life right to life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials security services sexual offence Sikhism Smoking social media social workers South Africa south african constitution Spain special advocates spending cuts Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance swine flu Syria Tax Taxi technology Terrorism terrorism act tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine unfair consultation universal jurisdiction unlawful detention USA US Supreme Court vaccination vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: