This is a Court of Appeal decision, arising from a private law case in which there was an issue as to whether a child should give evidence as part of the forensic exercise of determining the truth of what happened.
Re B (Child Evidence) 2014
John Bolch does an excellent summary here
The case builds on, but doesn’t change the principles set down by the Supreme Court in Re W http://www.bailii.org/uk/cases/UKSC/2010/12.html
The fundamental difference is that in Re W, the potential child witness was the subject of proceedings (thus the welfare of the child was a legitimate component of judicial decision-making, though not the paramount consideration), whereas this was a sibling/half-sibling of the child in question and thus wasn’t covered by that umbrella of welfare. Other than in the broader philosophical sense that a Court dealing with the welfare of a particular child ought not to cause harm to another child in that pursuit of a decision. Also, in Re W, the child had given a video interview to the police and that could potentially stand as evidence, in this one, the child had not given any interview and the issue was whether and how the child’s evidence ought to be placed before the Court if at all
The original trial Judge had decided that a series of questions ought to be drawn up and the CAFCASS adviser ask them of the child and record the answers, deciding to leave the issue of live evidence to one side until that information was available.
I’m not quite sure why the appeal was brought before that decision was made, or how the Court of Appeal dealt with it so quickly (it feels a bit premature to me, but nonetheless they did)
The Court of Appeal backed the decision of the trial judge to proceed in that way, but were keen to stress that this was not sanctioning an opening of the floodgates (as Jack of Kent has pointed out, floodgates opening is actually a good thing contrary to the metaphor – they are SUPPOSED to open).
- I would not expect our endorsement of Judge Cameron’s decision to open the floodgates, leading to a widespread practice of calling children as witnesses in cases such as this one. The Supreme Court did not consider that their decision would lead to children routinely giving evidence, predicting that the outcome of the court’s balancing exercise, if it was called upon to adjudicate upon such matters, would be the conclusion that the additional benefits in calling the child would not outweigh the additional harm it would cause him or her. I am sure that the natural sensitivity and caution of the family courts, which originally generated the now defunct presumption, can be relied upon to ensure that matters are approached in a way which properly safeguards all the interests involved.
- In addition to the argument that G’s evidence was peripheral, it was also argued on F’s behalf that it was wrong to have embarked upon the Family Court Adviser path because it would (or should) lead nowhere as the shortcomings in G’s evidence rendered that evidence of little value. The shortcomings were said to arise from matters such as G’s age, the lack of a contemporaneous statement from her, the passage of time since the incidents, and the likely influence upon her account of having lived in the meanwhile with M who was negative to F.
- I recognise the logic in the submission that the court should not involve a child in steps designed to explore the possibility of him or her giving evidence unless satisfied that the evidence is likely to be of value. However I would not take such an absolute position. It can be difficult to take a reliable decision in a vacuum and there can sometimes be merit in a step by step approach which enables more information to be gathered before deciding irrevocably. In deciding what steps to take, the apparent nature, quality and relevance of the evidence are obviously material but the court may not know enough in the early stages to form a concluded view about matters such as this.
In the light of the Court of Appeal’s decision to nuke fact finding hearings in public law from orbit, a decision I respectfully think is something one could happily eat with cheese, I thought these remarks from the Court of Appeal were interesting
The pursuit, in public and private children proceedings, of “the truth” about past events is not an abstract endeavour. What happened in the past is the foundation for informed decisions about the future, including decisions as to what, if any, risk of harm a particular course of action may present to the child who is the subject of the proceedings. The more reliable the court’s findings as to what happened in the past, the more reliable should be the prognosis for the future and the better the court should be able to judge where the welfare of the subject child lies.
Let’s face it ! When the social workers and the guardian swear in court that a child does not wish to see its mother (or father) they have every interest in spouting “emotional harm ” to stop the child coming to court to tell the truth and beg not only for contact but to be allowed to return home .The United Nations Convenion on children’s rights (to which the uk subscribes) giving children the right to be heard in legal proceedings that concern them is contemptuously brushed aside by the judges except of course if the children have been pressured and groomed to say what they have been told to say and then damn the parents the social workers win !.
“”””””and the likely influence upon her account of having lived in the meanwhile with M who was negative to F.””””””””
Should have been given far more weight.
For goodness sake cut the claptrap !Article 6 (human rights act) guarantees that in determination of their civil rights all those subject to a judicial hearing should be free to call witnesses.
That being the case all parents should be free to call children as their witnesses in accordance also with the UN Convention on children’s rights ,and now also following the recent speech by the Minister for justice saying that all children aged 10 or more should be allowed to express their views in person and in court.
ALL these authorities will no doubt be contemptuously brushed aside by our family court judges ;ever anxious to preserve the present system .
Yes, I await seeing the detail of the Minister’s proposals. They superficially sound like a great idea. Until you see a bunch of eleven year olds in the Court waiting room, being told by their mother “Now you go in there and tell that Judge how much you hate seeing your dad”
[For care proceedings, I think it has more value than in private law, where it seems open to abuse from the parent who took the child to Court and will be giving the child their tea that evening]
Suespicious, I respect your opinion, but regardng the bunch of eleven year olds (triplets?)being told to say they hate their dad……….Well as long as the dad dispenses with lawyers and, representing himself; QUESTIONS HIS CHILDREN HIMSELF in court they are unlikely to say they hate him face to face unless they really and deservedly do !
A case in point was the Musas ,(such an easy case to win re the physical abuse part);Gloria had not seen her eldest for four years and most of the others for at least two years and even in court they were hidden from their mother by a screen !
Gentle questioning by her lawyers brought out the parrot fashion replies they had rehearsed and Gloria’s barristers even agreed that the oldest daughter had written the “letter” accusing her mother of beating her despite the fact that the original had been deliberately destroyed by the police who admitted this in court !
I advised Gloria to sack her useless barrister and question the children herself face to face and from my friendship with the familyI am 100% sure they would all have said they loved their mother and that she had never never harmed them.
I would also have advised her to ask the eldest child to write at her dictation the same words as those on the short letter allegedly found in the garden and now available only as an alleged photocopy.THE WRITING IN THE CHILD’S EXERCISE BOOK WAS SO DIFFERENT IN EVERY POSSIBLE WAY that when she wrote a copy at dictation in court the jury would have seen that there was no way she could have written the original letter in such an adult hand .The letters s and f for example were as different as two letters possibly could be !
What a rotten set up…………………
Ian, whatever the proposals might turn out to be, I’d be utterly amazed if they involved allowing children to be cross-examined in court about their wishes and feelings.
The Minister for children said “Children and young people must by law have their views heard before decisions are made about their future, and where decisions are made that will impact them. At the moment, it is still too often that their views are not heard. Or that the law is interpreted to mean that others can make a assumption about the view of the child or young person – often for the best of intentions and acting in their interest, but nevertheless with the outcome that the child or young person does not feel that their own distinct voice was heard.”
Still a mile away from ‘get in the witness box, sonny’
ANYTHING IS POSSIBLE !!
Three-year-old becomes youngest trial witness
Jonathan Brown, The Independent, Saturday 12 November 2011
A three-year-old boy was given a packet of crisps by a judge after making legal history by becoming what is believed to be the youngest child to give evidence in a British court case.
The toddler, who cannot be named for legal reasons, was led gently through a series of questions about an alleged attack during the informal hearing. Answering via video link from an adjoining room at Bradford Crown Court, the boy told Judge Jonathan Rose that he liked Transformers and that his favourite flavour of crisps was salt and vinegar.
The court heard that the boy from Huddersfield, West Yorkshire, then aged two, suffered life-threatening injuries and had to undergo surgery on his bowel after Daniel Joyce, 29, allegedly stamped on his stomach.
The judge and both barristers removed their wigs and gowns in accordance with Ministry of Justice guidelines on questioning young witnesses.
Michelle Colborne, for the defence, handed the boy cardboard cut-outs representing people and locations involved in the case as she reconstructed events.
The child was accompanied by a court usher and a female intermediary and was allowed to draw during the short cross-examination. He had been warned that he had to tell the truth before giving his evidence.
At one point the judge asked him: “If Michelle asks you just three questions should we stop for a bag of salt and vinegar crisps?” He replied: “Yeah.” The boy was also questioned by Caroline Wigin, for the prosecution. She asked: “How did Danny hurt your tummy?”
“He stamped on me,” the boy replied. “Did he touch you anywhere else apart from your tummy?” asked Ms Wigin. “Yeah,” said the boy.
“Where was that?” she asked. “He put his hand on my mouth,” said the child who is also alleged to have suffered injuries to the face and ear. “Do you know which room you were in?” asked Ms Wigin. “Yeah … in my bedroom,” said the boy. The prosecutor said the boy had appeared “his normal chatty self” according to a witness the night before the alleged attack. Mr Joyce raised the alarm the following day when the boy appeared pale and floppy.
A few weeks later the boy was asked what had happened and he said “Danny” had stamped on his stomach, it was claimed. Mr Joyce denies GBH with intent and an alternative allegation of causing grievous bodily harm. The trial continues.
Girl, 6, makes legal history as judge in child abduction case allows her to choose whether to live with her mummy or daddy
By Andy Dolan
Daily Mail 15th April 2010
In a landmark case, a six-year-old girl caught in a tug-of-love battle has been allowed to choose which parent she will live with.
She became the youngest child to have her wishes influence the courts in an international child abduction case.
A judge heard how she had been left with a ‘visceral’ fear of being sent back to live with her father in Ireland.
The girl and her two brothers, aged three and eight, were brought to the UK by their English-born mother last summer.
They are now free to remain with her in this country after the Appeal Court yesterday upheld an earlier ruling by a family court judge to refuse the father’s application for them to be sent back to Ireland.
Giving her decision last month, Mrs Justice Black said the six-year-old and her older brother had ‘attained an age and level of maturity’ to have their wishes taken into account.
She said it would be ‘intolerable’ for their younger brother to be separated from them.
The court heard the three siblings had spent all their lives in Ireland, their father’s homeland, before their mother ‘unlawfully removed’ them last summer.
Their father’s counsel, Edward Devereux, said it was a ‘ clandestine and well-planned’ operation carried out while the father was at work.
He asked to have the children ‘summarily returned’ to Ireland under the Hague Convention, the international treaty which tackles-child abduction in family cases.
But Mrs Justice Black refused to order their return after hearing the strength of the two older children’s objections to the move.
A social worker who interviewed the pair said that, when she told them they might be sent back to Ireland, the boy ‘became very fidgety’ and his little sister started to cry.
The youngsters said that, if they had to return to Ireland, they wanted to live in a secret location as far away from their father as possible, the court heard.
In her ruling, Mrs Justice Black said the children’s objections were rooted ‘in their own experiences of family life and their fear of their father’.
She added that there was nothing to suggest that they had been influenced or put under pressure by their mother.
At the Appeal Court, Mr Devereux argued that the judge’s ruling undermined the whole basis of the Hague Convention, which requires that the future of children in such cases should be decided by the courts of the country from which they have been unlawfully abducted.
Describing the case as ‘unique’, the barrister said that six ‘is the youngest age in the reported jurisprudence at which a child has been found to have attained an age and degree of maturity at which it is appropriate to take account of her views’.
Mrs Justice Black’s ‘radical’ ruling, he said, would have ‘a far-reaching impact’ on child abduction cases.
However, after a two-hour hearing, Lord Justice Wilson and Lord Justice Sedley refused to grant the father permission to appeal, with the result that the children will now get their wish and stay with their mother in England.
Recognising the potentially widespread importance of the case, Lord Justice Sedley said the court would give the reasons for its decision at a later date.
Last month’s Court of Appeal hearing attracted much attention in the national press because at first instance Black J had taken account of the views of two of the three children involved. The younger of them was five years old at the time of her interview by a Cafcass officer.
Edward Devereux, representing the father, told the Court of Appeal that Mrs Justice Black’s decision to consult the girl had been “radical” and “unique”. He said that five was “the youngest age in the reported jurisprudence at which a child has been found to have attained an age and degree of maturity at which it is appropriate to take account of her views.”
The father’s application for permission to appeal was refused.
Delivering the main judgment of the Court, Wilson LJ cited the observation of Baroness Hale in In Re D (A Child) (Abduction: Rights of Custody)  UKHL 51, that
“children should be heard far more frequently in Hague Convention cases than has been the practice hitherto”. He shared the concern that “the lowering of the age at which a child’s objections may be taken into account might gradually erode the high level of achievement of the Convention’s objective, namely – in the vast majority of cases – to secure a swift restoration of children to the states from which they have been abducted.” However, he added: “A considerable safeguard against such erosion is to be found in the well-recognised expectation that in the discretionary exercise the objections of an older child will deserve greater weight than those of a younger child.”
In Mabon v. Mabon  2 FLR 1011, the Court of Appeal considered Rule 9.2A and the older line of authorities in the light of Article 12 of the United Nations Convention on the Rights of the Child 1989, and Article 8 of the ECHR. The court acknowledged the greater appreciation and weight which must now be attached to the child’s autonomy and consequential right to participate fully in the decision-making process that fundamentally affects his life. It held that
“in the case of articulate teenagers…. the right to freedom of expression and participation outweighed the paternalistic judgment of welfare.”[paragraph 28].
However, if direct participation would lead to a risk of harm that the child was incapable of comprehending, then a judge could find that sufficient understanding had not been demonstrated. Judges must equally be alive to the risk of emotional harm that might arise from denying the child knowledge of and participation in the continuing proceedings [para.29].
UK LIFTS RESERVATIONS ON THE UN CONVENTION ON THE RIGHTS OF THE CHILD (UNCRC