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.