Very quick one – this is an appeal just decided, about a 14 year old girl who wished to give evidence in care proceedings. She was saying that the allegations made against her father (about sexual abuse of her younger sibling) were not true, and thus the father was not a risk to her or her sister and her mother had not failed to protect.
The Local Authority and the Guardian were both saying that what the girl was saying was not correct ( This might have covered either that she just didn’t know about the abuse or that she was lying to protect her parents) but that she should not give evidence and the trial Judge had agreed with that.
The Court of Appeal ruled that this decision was wrong – this was a witness who had capacity, who was willing to give evidence, she had filed a statement and the contents of that evidence was being challenged and it went to a material issue. The girl should have been able to give evidence, and if her evidence in her statement was not right for that to have been tested in cross-examination.
(Of course a Local Authority when bringing care proceedings on a child feels uncomfortable about cross-examining that child and causing them emotional harm, and similarly the Guardian is in a tough position cross-examining a child, but in a situation like this, the child has to be able to give evidence if she wishes)
Re R (children) 2015
- In civil litigation the general rule is that where a party witness provides an appropriately verified written statement of her evidence, and is willing to attend for cross-examination, the court cannot be invited by other parties to disbelieve that evidence on a matter within her personal knowledge, unless it has been tested in cross-examination. This is a basic and deep-rooted aspect of the fair conduct of a trial, and reflects the central role which cross-examination plays in the ascertainment of the truth.
- It is therefore very unusual to find, as in the present case, a situation where the parties who do wish to challenge verified statement evidence from a party witness with the closest personal knowledge of the relevant events, seek to persuade the judge not to allow that witness to attend for the necessary cross-examination, where the witness herself positively desires to do so. Of course the motivation for this persuasion is of the very highest, namely an understandable concern for the young witness’s welfare. But for that concern, one would expect it to be common ground that there was a need for the witness to attend for cross-examination, since she denies in her evidence the very thing which the Local Authority seek to prove, namely that both she and her sister have been sexually abused by their father.
- To my mind it is the absence of any real recognition of the basic importance of the cross-examination of GR to a fair trial of the serious issues in this case, in the judge’s judgment or even in the respondents’ submissions on this appeal, that makes it necessary that the appeal should be allowed. I would regard the welfare implications of the choice whether to permit her to give oral evidence and to be cross-examined as being evenly balanced. The risk of harm which the process may cause to this bright and articulate fourteen year old does not seem to me to be more substantial than the risk of long-term harm at being denied the opportunity to have her evidence properly weighed in the determination by a court of matters of the utmost importance to her.