In Re E (A Child)[2016] EWCA Civ 473, the court had to deal with a situation which, whilst unusual, is by no means rare.  There were allegations of sexual abuse by Mr E, who was said to have abused the children living next door and orchestrated sexual activity between the children and his 14-year-old son A, who had some learning difficulties.  One of the issues was whether, as potentially both victim and perpetrator, A should have been assisted, through special measures to give evidence himself, rather than the court being confined to his ABE interview.

The need for a court to hear both sides of the case and for the accused to be able to answer his or her accusers, has a long history.  Writing in the fifth century BC, the Greek dramatist Aeschylus, in his play The Eumenides, puts the cardinal principle into the mouth of the goddess Athena.  Orestes has been pursued into her temple by the Furies who seek revenge upon him for his mother’s murder.  Having heard their accusation, she says

‘One plea is now presented, two are to be heard.’

Turning then to Orestes,

‘It is your turn to speak, my friend. What will you say?..

...tell first your country, birth, and history;

Then answer to this charge; and let your speech be plain.’

In English law however, the right to speak in your own case has often been very far from ‘plain’.  In civil cases anyone ‘interested’ in the outcome of a case was not permitted to give evidence until the Evidence Act 1843 and the actual parties and their spouses were not permitted to be witnesses until the Evidence Acts of 1851 and 1853. For those accused of a crime, they were deemed incompetent to give sworn evidence until the Civil Evidence Act 1898.  The basis for this was said to be that they would, inevitably, lie and so there could be no value in what they might say. In Hardy’s Case in 1794, Chief Justice Eyre explained that ‘the presumption ... is, that no man would declare anything against himself, unless it were true, but that every man, if he was in a difficulty, or in the view of any difficulty, would make declarations for himself.’  At a time when a man could be hanged for the theft of a loaf of bread, perhaps this belief in a defendant’s willingness to lie was not misplaced.

The next stepping stone along our way is article 6 of the European Convention on Human Rights which sets out the right to a fair trial in civil and criminal cases, but which, interestingly, does not guarantee the right to call witnesses and to give live evidence.

Where then does all of this leave us with care proceedings and children, who are parties to the proceedings, but, save through their Children’s Guardian, solicitor and counsel, seldom seen or heard?  This is an issue which has seen significant changes in the last few years, belatedly, mirroring some of the developments outlined above, as a result of which Children’s Guardians may now have to confront new and difficult questions.

The courts initially set themselves clearly against children giving live evidence in care proceedings, on the perfectly understandable basis that the experience would be likely to cause further trauma to the child and would simply do far more harm than good.  Beginning with Butler-Sloss LJ in 1991, the family courts consistently recoiled from having the child as a live witness and exposed to cross examination. In LM v Medway Council [2007] EWCA 9, Smith LJ put it very clearly;

‘The correct starting point . . . is that it is undesirable that a child should have to give evidence in care proceedings and that particular justification will be required before that course is taken.  There will be some cases in which it will be right to make an order. In my view they will be rare.’

It remained the position, that there was a very strong presumption against the child giving evidence, until the issue came before the Supreme Court in 2010.

In Re W (Children) (Abuse: Oral Evidence) [2010] UKSC 12, Lady Hale (giving the unanimous decision) said that, in the light of article 6, the previous presumption against a child giving evidence could no longer be sustained and that the court should begin from a neutral position, considering the following factors:

An unwilling child should rarely, if ever, be obliged to give evidence.

The risk of harm to the child if he or she is called to give evidence remains an ever present factor to which the court must give great weight.

The risk, and therefore the weight, will vary from case to case, but it must always be taken into account.

At both stages of the test the court must also factor in any steps which can be taken to improve the quality of the child's evidence, and at the same time decrease the risk of harm to the child.

The essential test is whether justice can be done to all the parties without further questioning of the child.

When considering this issue, the family court must weigh two considerations: the advantages that this would bring to the determination of the truth and the damage it may do to the welfare of this or any other child.

This issue was considered further by Pamela Scriven QC, sitting as a Deputy High Court Judge in Re J (Child Giving Evidence) [2010] EWHC 962 (Fam).  This was a case which concerned two twin 16-year-old boys who, it was said, had been the victims of significant physical abuse by their mother.  One of the children was anxious to give evidence; the other was content for his views to be conveyed to the court by the Children’s Guardian.  Here, the judge recognised that it was not simply a question of balancing the probative value of the evidence against the risk of harm.  Here it was also necessary to weigh the welfare advantages to the child of having the opportunity to give evidence, taking into account that the boy wished to do so, and would feel a profound sense of injustice if he was not permitted.

When Re W was before the Court of Appeal, a referral was made to the Family Justice Council to consider the issue of children giving evidence in family proceedings.  The working party who prepared the report included Nagalro’s Ann Haigh.  In the event, the Supreme Court felt it was able to deal with the appeal without waiting for the FJC report which was published in December 2011.  The recommendations of the working party, in relation to whether a child should give evidence or not, are worth reproducing in full. This is one of the many areas where an effective partnership of equals between the Children’s Guardian and the solicitor for the child will yield real dividends for the child, as both legal and social work expertise must be brought to bear on the different aspects of the problem.

8.

In light of Re W, in deciding whether a child should give evidence, the court's principal objective should be achieving a fair trial.

9.

With that objective the court should carry out a balancing exercise between the following primary considerations:

• i) the possible advantages that the child being called will bring to the determination of truth balanced against;
• ii) the possible damage to the child's welfare from giving evidence i.e. the risk of harm to the child from giving evidence;

having regard to:

a.   the child's wishes and feelings; in particular their willingness to give evidence;     as an unwilling child should rarely if ever be obliged to give evidence;

b.   the child's particular needs and abilities;

c.   the issues that need to be determined;

d.   the nature and gravity of the allegations;

e.   the source of the allegations;

f.   whether the case depends on the child’s allegations alone;

g.   corroborative evidence;

h.  the quality and reliability of the existing evidence;

i.   the quality and reliability of any ABE interview;

j.   whether the child has retracted allegations;

k.   the nature of any challenge a party wishes to make;

l.   the age of the child; generally, the older the child the better;

m. the maturity, vulnerability and understanding, capacity and competence of the child; this may be apparent from the ABE or from professionals’ discussions with the child;

n.  the length of time since the events in question;

o.   the support or lack of support the child has;

p.   the quality and importance of the child’s evidence;

q.   the right to challenge evidence;

r.   whether justice can be done without further questioning;

s.   the risk of further delay;

t.   the views of the guardian who is expected to have discussed the issue with the child concerned if appropriate and those with parental responsibility;

u.  specific risks arising from the possibility of the child giving evidence twice in criminal or other and family proceedings taking into account that normally the family proceedings will be heard before the criminal; and

v.   the serious consequences of the allegations i.e. whether the findings impact upon care and contact decisions.’

It was against this background that the Court of Appeal came to consider Re E and amongst other issues, whether the trial judge had been correct to decide that the victim/perpetrator child A should not give evidence in the proceedings.  McFarlane LJ was highly critical of the approach which had been taken.  The judge points out that in criminal cases, which will often involve the same children and facts as the care case, live evidence from a child is not unusual.

‘46. As is well known, children, even children of a very young age, who have made allegations of abuse which are subsequently the subject of criminal proceedings, are required to give live evidence within the criminal process. It is understood that some 40,000 do so during the course of each year. The child will typically be protected from full exposure to the court room by the use of special measures, for example, answering questions over a live video link. Conversely, for many years the practice and culture in family proceedings was that such children, even if aged in their late teens, would never be required to give live evidence in the Family Court.’

After quoting at some length from Baroness Hale’s judgement in Re W (above) the judge continues as follows:

‘48. I make no apology for quoting so extensively from Baroness Hale's judgment, which would seem to have gone unheeded in the five or more years since it was given. The need to give appropriate consideration to a child giving evidence in a case where that issue arises will soon be given further endorsement by amendments to the FPR 2010 and Practice Directions in accordance with recommendations from the President's working group on children and other vulnerable witnesses. In the meantime, the decision in this case should serve as a firm reminder to the judiciary and to the profession of the need to engage fully with all that is required by Re W and the Guidelines.’

The decision of the Court of Appeal was that the findings should be set aside and the case remitted back to the Family Court for a fresh hearing and reconsideration of the child A giving evidence.

What then is the message for Children’s Guardians? Essentially it is that the issue of whether, and if so how, a child should give evidence must be kept in mind. Since the court requires it to be raised at an early stage it will have to be considered sooner rather than later and work done with the child on this issue so that the court can have the advice it needs when considering and balancing all the relevant factors.

It is unlikely that children will give live evidence with anything like the frequency encountered in the Crown Court.  This is as much to do with different standards of proof and rules about the admissibility of evidence as anything else. What is clear however, is that there is a tide of judicial opinion running on this issue and with changes to the Family Procedure Rules in the offing as well, practitioners need to have thought through the possible implications for children for whom they are responsible.

It is not so uncommon, in sexual abuse cases, that an older child is alleged to have migrated from one of the abused, to an abuser.  The outcome of those civil proceedings, whilst not a criminal conviction, will potentially have far reaching effects on that child when, in a few short years, he starts a family of his own, or begins a relationship with someone who has children.  If the child is capable, the right to a fair trial may demand that they should have the chance to be heard before findings are made which may change their lives.