Supreme Court rules that presumption against children giving evidence not reconcilable with rights to justice under the Convention
11 February 2010
Re W (Children)  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.
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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)  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.
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  UKSC 14,  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.