Findings of fact made by courts relating to serious allegations of abuse of children will invariably have profound implications for the future, not only for those children, but also for those found to be the perpetrators of such abuse. In a recent case, referred to below, Lord Justice McFarlane said ‘Part of any consideration of the overall welfare of a child must be that decisions as to his or her future, or the future of other children, are based, so far as is possible, upon a true understanding of important past events’.
Within the trial process in the family Courts, there is a ‘tension’ between the ‘best interests of the child’ and the right of an accused person to a fair hearing. Historically, in undertaking this balancing exercise, it was unusual in the extreme for the courts to decide that it was right for children to give ‘live evidence’ in the Family Courts. It was only in 2007 that one of our most senior family judges, Lord Justice Wilson, now a justice of the Supreme Court, observed that in his long career as a family ‘trial judge’, no oral evidence, whether by video link or otherwise, had ever been given to him by a child in any care or other Public Law proceedings. He referred to the usual practice of the courts carefully considering and assessing a child’s ABE ( Achieving Best Evidence ) interview, occasionally with the assistance of a child psychologist. The fact that the ‘accused’ does not have an opportunity to ask questions of the child would be factored into the assessment of the weight to be attached to the ABE interview. In this 2007 case the Court of Appeal decided that the court below should not have started from the premise that normally a child might be called to give evidence, if that could be done without damage and oppression. It held that the correct starting point was that it was undesirable that a child should give evidence in care proceedings.
Is this the right way to try to get to the truth, which in these serious cases is so important for all concerned? The answer given by the Supreme Court just three years later in 2010 was ‘no’. The case of Re W (Children) (Abuse Oral Evidence) gave careful consideration to these issues. It concerned the evidence of a 14 year old girl and allegations of sexual abuse she had made against her step father. The Supreme Court held that the presumption against a child giving oral evidence could not be reconciled with the approach of the European Court of Human Rights. Detailed guidelines were given as to the matters to be taken into consideration and how they should be balanced in the ‘weighting exercise’. It goes without saying that the age and maturity of the child concerned and his or her wishes and feelings about giving evidence are of great importance. The Supreme Court observed that an unwilling child should rarely, if ever, be obliged to give evidence.
Did Re W lead to a ‘sea change’ in the approach of the courts to this issue? I think the answer to this question is ‘no’. In February 2015 the Vulnerable Witnesses and Children Working Group reported. The Group was of the view that children and young people often felt that they are not being listened to properly in family proceedings. Why should the evidence of children and young people not be put before the family courts as it would be in criminal proceedings? Indeed, a huge number of children and young people give evidence in the criminal courts as a matter of routine.
In the 2016 decision of the Court of Appeal in Re E (A Child ) these issues were discussed at some length once again. Lord Justice McFarlane highlighted the failure of the family courts to apply properly the Re W guidelines. He felt that the Family Court should be more robust in following the guidance which has been given. He noted that children’s guardians often advised that a child should not be called to give evidence on the basis of emotional harm that will or may be suffered by the child as a result of so doing. He said : ‘Where such advice is based upon the consideration of harm alone, it is unlikely to be of great assistance to the court which is required to consider not only ‘harm’ but also the other side of the balance described in the guidelines, namely the possible advantages that the child’s testimony will bring to the determination of truth’.
Food for thought.