Should children be protected against giving evidence in court?

5 March 2010 by

Re W (Children) [2010] UKSC 12 [On appeal from [2010] EWCA Civ 57]

The Supreme Court has ruled that refusing an application for a child to give evidence in a trial may contravene Article 6 of the European Convention on Human Rights (ECHR).

At issue in this case is the care of five children. All the children were taken into foster care and the four younger children are having supervised contact with both parents. The father has since been charged with 13 criminal offences and is currently on bail awaiting trial.

In the family proceedings the parties originally agreed that there would be a fact finding hearing in which the 14 year old girl would give evidence via a video link.  In November 2009 the judge decided to refuse the father’s application for her to be called. Instead, she would rely on the other evidence, including a video-recorded interview with the child.

The Supreme Court allowed the father’s appeal. Lady Hale said at paragraph 22 of the judgment:

However tempting it may be to leave the issue until it has received the expert scrutiny of a multi-disciplinary committee, we are satisfied that we cannot do so. 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 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. But even in criminal proceedings account must be taken of the article 8 rights of the perceived victim: see SN v Sweden, App no 34209/96, 2 July 2002. 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.

Read the Supreme Court press summary

Read the judgment

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