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Does a child have a RIGHT to give evidence? Does anyone?

Posted on March 22, 2013 by suesspiciousminds

The Court of Appeal decision in Re P-S (Children) 2013

An interesting case. A child whose future was being determined by the Court had a different view to that of the Guardian representing him, and was competent to instruct his own solicitor. He did so. He met with the Judge, who obviously did not conduct that meeting as any form of forensic exercise.

 He later became distressed and unhappy and applied through his lawyer to give oral evidence, so that the Court could directly hear his views on the plans being considered and his strong opposition to those plans. The other parties made it plain that they would not cross-examine him, so his evidence would be instead a platform for his direct expression of his views.

 The Court refused that application and went on, in due course, to make the orders that the young person had been opposing.

 The appeal was therefore on the point of whether the child had a RIGHT to give evidence, if he was competent to do so, or whether it was a case management decision in the discretion of the Judge.

 And additionally, whether, when the child is of sufficient age and understanding, should the “wishes and feelings” portion of the Welfare Checklist, be weighted such that it is a rebuttable presumption in favour of their wishes being complied with.

 

On 16th November 2011 M made his application for permission to attend to give evidence by video link “so that the strength of my feelings can be made clear to everyone”. He explained that he would be “extremely distressed if told that I was to be forced to remain in foster care and I would struggle greatly to accept this outcome.” He also said that “I have had thoughts of running away as sometimes I have felt that people are not taking me seriously. These have occurred quite often, including quite recently, but in the last few weeks I have been a little more optimistic and hope that the court will grant my wishes. I would feel devastated if I were told I could not return.” That application was heard on 21st November 2011, the Local Authority and guardian indicating that they did not wish to cross-examine M on the content of his statement, Mother indicated that the only question she would be seeking to ask him through her counsel would be about the likelihood of him voting with his feet and running away from the foster placement should a care order be made.

 

 

The judgment on M’s giving evidence

10. The judge observed that the two authorities to which she had been referred, namely Re: W (Children) (Abuse: Oral Evidence) [2010] UKSC 12, [2010] 1 WLR 701 and A City Council v T, J and K [2011] EWHC 1082 (Fam), [2011] 2 FLR 803, dealt with radically different situations from the one with which the court was faced, the former concerning the giving of evidence to substantiate a complaint for the purpose of establishing the threshold and the latter dealing with an application for secure accommodation.

11. She made these findings:

“12. It is a relevant factor that the Mother has always displayed her own emotions quite openly in court whether represented or not. …

13. There remains, therefore, in my judgment a severe risk that if M is within the court precincts and available to Mother, as he would be by way of the video link, she will be unable to resist the temptation for an extreme emotional outburst in his presence which, based on her previous conduct in court, it would be impossible to control. That I regard as of real potential detriment to M in terms of his coming to give evidence.”

12. She noted Mr Blake‟s suggestion that there is “value added” to his written statements through the court being able to assess M‟s subjective viewpoint and the strength of his feelings through his demeanour. But she held that it was inevitable that he would want to do what he thinks is right by his Mother and will want to put right by what he Judgment Approved by the court for handing down. P-S (Children)

says matters over which he has no control and for which he is not responsible. Her conclusions were:

“37. It is likely, in my judgment, to be enormously harmful to M to assume a responsibility for the outcome of this case, which is exactly what he would do if he came to court to give evidence. … If [I may not be able to arrive at a conclusion which is consistent with his wishes] then he will feel that he has failed and moreover that there is a prospect that his relationship with those who would be responsible for his care and his own Guardian would be damaged. …

38. I question whether there is anything more that M can tell me or which I am going to be able to assess from his demeanour that is going to assist me with the determination of the relevant issues. …

39. I am prepared to accept, both for the purposes of this application and for tomorrow‟s hearing that M would like to return to the care of his Mother, and if that involves A‟s father to their joint care I am perfectly prepared to accept that he will be bitterly disappointed if he is not able to achieve that. I am also prepared to accept that there may be some short-term emotional harm to him as a result of a rejection of that case which is put on his behalf. But, as the advocates will be aware, there is rarely a perfect outcome to proceedings involving children, and this case is no exception.

40. The conclusion that I have arrived at is that the additional benefit to the determination of the relevant issues of M giving evidence is significantly outweighed by the very real potential detriment.

41. If there is really no evidential matter on which M‟s evidence can assist the Court, slow though I am to arrive at this conclusion, I have to question whether there is any need for him to be placed in the invidious position of giving evidence when the giving of that evidence may make matters significantly harder for him should the case go against his express wishes.”

 

 

The Appeal considered the UN Convention on the Rights of the Child, particularly Article 12

 Article 12 of the Convention provides:

“1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

 

2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.” (I have added the emphasis)

 

How successful have we been in implementing Article 12? First, the child is automatically a party to the care proceedings by virtue of FPR 12.3(1). Secondly, there is provision for the representation of the child, s.41 of the Children Act requiring the appointment of an officer of the service or a Welsh family proceedings officer for the child concerned unless satisfied that it is not necessary to do so in order to safeguard his interest. The court may appoint a solicitor to represent him. The so-called “tandem” model for the representation of children who are parties to family proceedings, namely by a guardian with social working qualifications and a specialist family solicitor meets our obligations to comply with Article 12: see Mabon v Mabon [2005] EWCA Civ 634, [2005] Fam 366, per Thorpe LJ at [26] who went on to conclude his judgment saying:

“32. … this case provides a timely opportunity to recognise the growing acknowledgement of the autonomy and consequential rights of children, both nationally and internationally. The Rules are sufficiently robustly drawn to accommodate that shift.”

If the circumstances of the case demands it, as they did in this case, the child will be afforded separate legal representation by solicitors and counsel.

27. Thirdly, there is provision for attendance. Under s. 95 of the Children Act the court may order the child concerned to attend as prescribed by rules of court. FPR 12.14 provides that any party must attend the proceedings but the proceedings or any part of them may take place in the absence of a child pursuant to FPR 12.14(3) if the court considers it in the interests of the child having regard to the matters to be discussed or the evidence likely to be given and the child is represented by a guardian or solicitor.

28. Fourthly, as for evidence, s. 96 of the Children Act provides that a child‟s evidence may be heard by the court if, in its opinion he understands that it is duty to speak the truth and he has sufficient understanding to justify his evidence being heard. S. 96 also provides for the admissibility of evidence which would otherwise be inadmissible under any rule of law relating to hearsay. FPR 22.1 gives the court power to control evidence by giving directions as to the issues on which it requires evidence, the nature of that evidence and the way in which the evidence is to be placed before the court. The general rule is that any fact which needs to be proved by the evidence of witnesses is to be proved at the final hearing by the oral evidence.

 

 Of course, section 96 is providing the POWER to hear from a child, in those circumstances, and not providing a RIGHT for the child to hear evidence. And the Court of Appeal here draw the distinction between hearing from a witness to PROVE a fact, and hearing from them as to their views.

 (The case of Re W, of course, the lead authority on children giving evidence, was primarily dealing with cases where the child was s96 competent to give evidence AND was a witness of fact. Here, the issue was not a factual dispute to be unpicked, but as so often in care cases, a dispute as to how the case should be properly disposed of, given the facts that were available)

 The lead judgment in Re P-S grappled with the issue of whether a child has a RIGHT to give evidence and reached this conclusion  [underlining is mine]

 

That being the jurisprudence, is it enough for us to say that a child has a right not only to be heard in proceedings affecting him but also, and more relevantly for the appeal, a right to give evidence in those proceedings? The U.N. Convention on the Rights of the Child has not been made a part of English law but the duty of the court is nonetheless to have to it when considering matters relating to it. The position may now be different in Wales because the United Nations Convention on the Rights of the Child has become part of Welsh legislation by reason of the Rights of Children and Young Persons Measure (Wales) 2011 which came into force in May 2012. The Measure will shape all future policy decisions taken by Welsh ministers.

36. Nevertheless, in my judgment, it should now be declared that the child does have the former important but limited right, that is to say, a right to be heard in the proceedings. It is apparent from the foregoing that the right to be heard does not specify how the child is to be heard for the Convention expressly recognises that the voice of the child may be conveyed “either directly, or through a representative or appropriate body”. Indeed the guidance at [43] prefers the child being heard under

conditions of confidentiality, not in open court. It may be enough that a social worker, i.e. the CAFCASS officer or guardian hears the views of the child and it does not seem essential that it has to be the judge who hears directly from the child. So, whilst the child must be listened to, there is nothing in the Convention which entitles the child to give evidence to the judge. In my judgment a child has no right to give evidence.

 

 

 

The Court of Appeal then went on, and this is what makes the case particularly interesting, to a law geek like myself

 

In my judgment no-one has a right to give evidence. A trial may nonetheless be fair if the court exercises fair and reasonable powers to control the evidence as is provided for by FPR 22. Once there is undisputed evidence of a fact which may, for example, be a fact admitted on the pleadings, there is no need for further oral evidence to prove that fact. Evidence may be led to dispute a fact but the court will not tolerate a parade of witnesses all saying the same thing. An adult would not be allowed to give that evidence any more than a child should be.

 

[I think until the Court of Appeal ruled on that, MOST professionals would have suspected and said confidently that a party had a right to give evidence in care proceedings – yes, that that doesn’t mean they can pontificate for hours on end, or that they can call a string of character witnesses, but that if they want to get into the box and speak directly they have the right to do so.]

I have had many cases, and am sure that other lawyers and professionals would say the same, where the parents have wanted to have their say in giving evidence to the Court, although the evidence is not being heard to resolve a factual dispute  (did X or Y event happen) but rather as part of disposal (given that X or Y happened, what should happen now?)

 I have often made it plain, in those circumstances, that I would not cross-examine the parents, who want to have their say – their view and beliefs are legitimately held, and the experience of care proceedings is bad enough for a parent without my cross-examining them (unless there is a factual dispute).

This authority suggests that a parent does not have a RIGHT to take to the stand and be heard from, in the absence of a factual dispute.

 Of course, the reality is that this evidence takes little time, gives the Court a feel for the parents presentation and is perhaps part of the cathartic process for the parents in feeling that they had their say – as opposed to leaving Court feeling like they have not been heard.  I suspect that most Courts will continue to hear from parents in those circumstances, but as they say in Game of Thrones, “Winter is Coming” and who knows how circumscribed our hearings might become in our brave new world of 26 weeks?

 The last point of the appeal was whether the welfare checklist was, in effect, weighted once a child neared their majority so that their wishes and feelings had greater force than the other elements, or was perhaps even a rebuttable presumption that they should be adhered to.

Is there a rebuttable presumption that the mature child’s wishes should prevail?

43. In my judgment the answer is certainly not. The checklist sets out a range of factors to be taken into account, only one of which is the wishes and feelings of the child having regard to his age and understanding. The weight to be given to that factor will vary from case to case. It may be a very weighty factor, it may even be the determinative factor in a particular case but s. 1(3) simply cannot be construed so as to read into it some hierarchy of weight or presumptions of precedence over other factors. Each case is fact sensitive. Judge Parry dismissed this argument for reasons with which I totally agree.

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Silence is golden, justice is blind

Posted on August 8, 2012 by suesspiciousminds

 

 

 

An imaginary judgment, dealing with section 98 of the Children Act 1989 and rights to remain silent….

 

The Court is dealing today, I was sorely tempted to begin this judgment with ‘we are gathered here today’ given the themes of the case, with a vexed preliminary issue prior to the determination of a finding of fact hearing.

 

The bare facts of the case are simple. The Court is about to embark upon a finding of fact hearing. Serious allegations of physical abuse are made against the mother and the father, and the Court must establish firstly whether these allegations are proven on the balance of probabilities, and then move on to determine whether it is possible to identify the perpetrator, or exclude either parent. 

 

The father has made it plain that he does not seek to care for the children, he and the mother having separated, and his role in the proceedings is limited to the factual determination of the finding of fact hearing. For his part, he denies that the injuries were non-accidental, and if the Court is against him on that, he denies that they were perpetrated by him.  He does not go so far as the mother, who actively asserts that the father caused the injuries.

 

The factual allegations are detailed and involve multiple injuries over multiple dates and the factual enquiry into this will without doubt involve a great deal of detailed cross-examination and forensic discussion. There will need to be exploration of the accounts provided, and how these tally with both the medical explanations and any previous accounts.

 

This is complicated by the father’s current position. He, having left the family at the outset of these proceedings, has undergone something of a religious conversion, and is now living in a monastery and has become a Trappist monk.  It is asserted on his behalf, that a fundamental part of his religious beliefs and practice is to maintain a complete vow of silence. Evidence has been filed , necessarily in writing, from those at his monastery to confirm that (a) the father is living there (b) that he has undertaken the necessary conversion to become a Trappist monk, albeit in a more accelerated process than is usual, (c) that the vow of silence is indeed a legitimate and indeed mandatory form of his religious expression  and (d) that having taken that vow, he is bound by it and cannot relinquish it.  The necessity to speak and give oral evidence does not countermand his vow of silence, so far as his religious practices are concerned.

 

 

I am advised that a rudimentary form of finger signing is permitted, but an inspection of this shows that it would be substantially short of the ability to communicate the level of detail that would be required. Equally, it is apparent that it would be permissible for father to reduce his answers to writing, and for these to be read aloud by another.  I muse that this must be an acceptable method of dealing with the need for oral evidence in a case where the witness is physically incapable of speech, for example where they are mute.

 

It is submitted on behalf of mother, and supported by the Local Authority, that giving his evidence by way of written answers affords the father a tactical advantage. Clearly his answers would not be as instant as those given by someone answering aloud; the process of writing them renders both an opportunity for thinking time and indeed the opportunity to avoid ‘stumbling into an answer’  because he would have the ability to correct a remark that he wished he had not made and substitute it for a more polished answer before the written answer is finalised and shown to the Court / read aloud by an usher. 

 

Equally, the mother submits, that in comparing and assessing the evidence of two parents who are under the spotlight of suspicion, the Court hearing tone, manner, demeanour, facial expression and cadence of one witness and merely the written answers of another is ‘comparing apples and oranges’ and that mother’s right to a fair hearing may well be prejudiced if the two parties under scrutiny are not competing on a level playing field.

 

It is certainly right that all of the factors mentioned by mother’s counsel are matters which a judge properly brings to bear on an assessment of a witness’ evidence. It is not merely, as she asserts, “what is said, but the way it is said’ that is important.

 

I accept, that it would be better, if at all possible, to hear from the mouths of both witnesses, their evidence; and that alternative methods such as communicating in writing should be done only if unavoidable.

 

 

We turn, therefore, to the issue of whether the father can legitimately be compelled to give oral evidence, irrespective of his religious convictions.

 

I am referred to section 98 of the Children Act 1989

 

98 Self-incrimination.E+W

(1)In any proceedings in which a court is hearing an application for an order under Part IV or V, no person shall be excused from—

(a)giving evidence on any matter; or

(b)answering any question put to him in the course of his giving evidence,

on the ground that doing so might incriminate him or his spouse [F1or civil partner] of an offence.

(2)A statement or admission made in such proceedings shall not be admissible in evidence against the person making it or his spouse [F1or civil partner] in proceedings for an offence other than perjury.

 

 

 

 

It is submitted on behalf of father, quite properly, that this relates to the principle that a person is not excused from giving evidence or answering questions in evidence on the grounds that it might incriminate him, or his spouse.  In effect, that in care proceedings, there is no “Fifth amendment” right to ‘refuse to answer that question on the grounds that it may incriminate me’   or, adopting the UK terminology in the criminal process, the  right to remain silent.

 

He asserts that he  (a) is not refusing to answer questions, but is unable to do so and (b) that if he is ‘refusing’ it is not on the grounds that it may incriminate him, but on religious beliefs.

 

The other parties assert that it is clear from the reading of section 98 that there is no reason that a witness in care proceedings can refuse to give evidence.

 

He is a competent witness, applying the principles of  the Youth Justice and Criminal Evidence Act 1999, section 53  –  “all persons are competent to give evidence unless  they don’t understand the questions put to them, or they cannot give answers to those questions which can be understood”    – although those principles strictly apply to criminal trials, I am satisfied that they are an appropriate measuring stick and that father is competent (and thus compellable) on that basis.

 

If a witness summons is issued, compelling father to attend and give oral evidence, what powers, if any, does the Court have if he is asked to swear the oath, or to answer a question and not a syllable passes his lips?

 

 

I am helpfully pointed towards the decision of the criminal courts in

R v Montgomery 1995, which sets out that refusal to give evidence can constitute a contempt of court.

 

 

 

R v Montgomery (1995) 16 Cr.App.R.(S) 274

• An immediate custodial sentence is the only appropriate sentence for contempt

unless there are wholly exceptional circumstances.

• There is no rule or established practice that states higher sentences should be

imposed in cases of interference with for example jurors, than in the case of a

witness refusing to give evidence.

• Although the maximum sentence for failing to comply with a witness order is 3

months, this does not mean a longer sentence cannot be imposed for blatant contempt by refusing to testify.

• The following factors were determined to be relevant to the sentencing of contemnors:

(a) the gravity of the offence being tried;

(b) the effect upon the trial;

(c) the contemnor’s reasons for failing to give evidence;

(d) whether the contempt is aggravated by impertinent defiance to the judge;

(e) the scale of sentences in similar cases, albeit each case must turn on its own facts;

(f) the antecedents, personal circumstances and characteristics of the

contemnor; for example, whether for the contemnor this would be his first time to prison or is institutionalised.

 

It is notable, that the father, faced with the possibility that his decision not to give oral evidence might result in a custodial sentence, possibly in excess of three months, has not waivered from his position that he is unable to give oral evidence.

 

The fact remains that ultimately, whether I find the father in contempt of court I cannot compel him to utter a word in the witness box. I can compel him to get into the witness box, and punish him for not answering, but no more than that.

 

 

 

 

All that I could do would be to witness summons him to give evidence, and commit him to prison if he refused to do so, and then, as our American cousins say “lather, rinse, repeat” whilst we test which of us has the greater patience – the father in spending three months in prison following each time he comes to court or myself in whether I am prepared to keep adjourning the case indefinitely should he remain steadfast.

 

And of course, I must bear in mind that throughout this theoretical exercise of brinkmanship where I would test whether the father’s determination to not speak would exceed my own determination to have his evidence heard, the child would be in limbo and waiting for a determination. The principle of no delay I think, drives me, not to embark on a futile course of action that would cause delay for the crucial decision to be determined.

 

So, as far as the father is concerned, I can potentially  punish him for not speaking, but I cannot compel him to speak.

 

 

 

 

 

 

 

Given that the father’s defence to any application for contempt would be that he is not refusing to give evidence, but is unable to do so as a result of his religious convictions, I must turn now to the Human Rights Act 1998 and in particular, the right to religious expression; to consider whether in law, I could actually punish him at all for exercising his religious beliefs, inconvenient as they may be for the Court.  

 

 

  ARTICLE 9
  FREEDOM OF THOUGHT, CONSCIENCE AND RELIGION
      1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
 
      2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

 

 

Regardless of the assertion by the Local Authority and the mother that I should treat the father’s religious conversion as a convenient device for the purpose of side-stepping the need to give oral evidence and that the Court can make inferences in that regard, perhaps even so far as making inferences that this is as a result of a guilty conscience,  I am troubled that this would be a step too far.  The father has the right to adopt a religion and to change it.

 

The Court can look to an extent, at whether this is genuine or a device, but cannot peel off too many layers of that particular onion.  

 

If he merely asserted that he was now in deep sympathy with the principles of Trappist monks and had taken a vow of silence, and had taken no steps whatsoever to adopt any other elements of their religion,  the Court would be justifiably sceptical; but this father has actually moved into a monastery and undergone the conversion process. There is no evidence to suggest that since doing so, the father has not adhered to their practices, and as indicated early, much evidence to the contrary.

 

One of the essential facets of faith is that it can be a lifelong deeply held belief, or a sudden conversion, as a person encounters a situation or comes to a revelation that there is another facet to the world than the merely physical and that they wish to take steps to embrace the sense of religious wonder or responsibility that they feel.

 

 

It may be that the connection with the Trappist monks and their vow of silence is  a helpful device (or as mother puts it ‘a get-out-of-jail-free card’, it may be a  merely coincidental happenstance, as father asserts. Without prima facie evidence that his religious beliefs are not genuine, I am not entitled to delve too deeply into this.

 

Regardless, he is legitimately entitled to change his religion to that of a trappist monk if he wishes, and legitimately entitled to follow their religious practices unless there are limitations to this prescribed by law.

 

 

I could legitimately issue a witness summons against him, but it must be questionable whether I could legitimately commit him for contempt for not answering a question once he gets into the witness box. That being the case, and given that the father has made it plain through those who represent him (who have had more than the usual volume of written notes passed to them during these proceedings) that he is willing to attend the hearing and step into the box, one wonders whether there is any value in issuing a witness summons.

 

 

 

The best I can do, in this difficult and vexed situation, and I am sure that this is a solution that will earn me a great deal of displeasure from my usher, a person whom I depend on for smooth running of my daily working existence and a person who I offend at my peril, is for both parents to give their evidence on the same footing.

 

Therefore, both mother and father may, if they desire, give their evidence by writing their answers on a pad of paper. When the answer is finished, they will hand the answer to the usher, who will read it aloud.  It is not ideal, but it avoids the risk of comparing apples and oranges that the Court must be alive to.

 

Counsel are asked to keep their questions as concise as possible, in order that answers can be likewise, and to avoid the nested and tiered questions of which so many advocates are fond these days.

 

I will now rise for lunch, and I suspect that I may need to be treating the usher to something substantial and possibly lavish, so I will begin the case at 3 o’clock.

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