Courts should be more open to children giving evidence in family court proceedings, the chief of the family court has said, writes Clare Jerrom.
In a recent judgement, Sir James Munby said that although “there has been a sea-change in attitudes over the last decade and more, even if on occasion practitioners and the courts have been and still are too slow to recognise the need for change or to acknowledge the pace of change,” more needed to be done in this arena.
The president of the family division’s comments came in relation to a case regarding a Hungarian family with three children. The parents' marriage broke down and there were proceedings in the Hungarian court. However, during those proceedings, the mother brought the three children to this country.
This was an unlawful removal and the father started Hague proceedings in the Family Division on 23 November 2015. The mother defended the proceedings on two grounds: first, under Article 13, that the two eldest children referred to as L and F objected to being returned to Hungary and secondly, under Article 13(b), that there was a grave risk that returning the children to Hungary would expose them to physical or psychological harm or otherwise place them in an intolerable situation.
A senior CAFCASS officer John Power interviewed the two eldest children. At the final hearing before the Deputy Judge on 2 February 2016, he rejected the defence based on Article 13(b). He found that L and F both objected to being returned to Hungary, but exercised his discretion to order their return to Hungary by 19 February 2016.
The mother applied to the Court of Appeal for permission to appeal against the order of the Deputy Judge and included a statement by the eldest child L's litigation friend, JB, setting out L's evidence in some detail. L objected to being returned to Hungary and Mr Hames, representing L, said that in his judgement, the Deputy Judge had failed to consider the nature and strength of L's objection and whether L's objection coincides or is at odds with her welfare and the impact a return would have on her life. Mr Hames said the process was “fundamentally flawed and unfair” as L was deprived of her right to participate in a decision which affected her future and the Deputy Judge failed to meet with L despite Mr Power having reported that she wished to meet the trial judge
The appeal about the overall ruling was unsuccessful as Munby said he could see “no error of fact” in the original judgment. However, Sir Munby used the case to reiterate that Article 12(2) of the United Nations Convention on the Rights of the Child identifies the obligation on the court to ensure that the child is given the opportunity to be "heard". He also highlighted a well versed passage from the judgment of Thorpe LJ in Mabon v Mabon that “judges have to be … alive to the risk of emotional harm that might arise from denying the child knowledge of and participation in the continuing proceedings”.
Munby added that In re W (Children) (Family Proceedings: Evidence the Supreme Court said that there is no longer a presumption, or even a starting point, against children giving evidence in family proceedings. “One thing is quite clear: that proper adherence to the principles laid down in In re W will see ever increasing numbers of children giving evidence in family proceedings.”
“By and large, the child is completely invisible in court”
It is not the first time that Munby has spoken out on this topic. At the annual lecture of The Wales Observatory on Human Rights of Children and Young People last June, Munby began with the opening remarks that: “The too infrequently heard voice of the child in and about the family justice system is, I hope we can all agree, a matter of pressing and increasing concern.”
The president highlighted that, although, by statute, the welfare of the child is our paramount concern, the child is “by and large, completely invisible in court”. In contrast to the Crown Court, the child is “very rarely present and very rarely gives evidence”.
The child’s wishes and feelings are typically communicated to the court by others such as a guardian or social worker and in a typical private law case, the court only hears from the parents. The court proceeds “on the blithe assumption that the truth – and a proper appraisal of what is in the child’s best interests – will in some mysterious way emerge from the adversarial process between the parents,” added Munby.
Munby again highlighted Article 12 of the United Nations Convention on the Rights of the Child and referred to Article 8 of the European Convention which protects the right of anyone whose private or family life may be affected to be involved in the decision-making process, whether that process is judicial or administrative, which includes children.
Munby told the lecture: “In principle, we should try and find out what the child wants and, unless the particular child’s welfare points in another direction, or what the child wants is plainly inappropriate, we should do our best to meet the child’s wishes. Obviously, we have to have regard, as statute requires, to the child’s age and understanding. And obviously, if a child wishes to sit in and watch the proceedings we need to be very careful to ensure that the child is not exposed to anything from which they should be protected.
“But in the past we have been too cautious, too over-protective. For the future we must be more flexible and accommodating,” Munby stated. “We must put the parties, the children in particular, centre stage, both metaphorically and, as I have suggested, quite literally.”
Munby’s comments have been largely welcomed. Speaking exclusively to Children First, a Law Society spokesperson said: “Over the last few years there has been a growing move towards giving children a voice in the family court. This is a good thing. In principle it is right that the child's opinion is heard in matters affecting their wellbeing, though the process needs to be managed sensitively. The child needs to be questioned in an appropriate manner, their expectations need to be managed, and their identity kept private outside the court room.
“The Ministry of Justice, judges, legal professionals and guardians should continue to work together to make sure that children feel that they are a part of the legal process, rather than subject to something that is happening to them and in which they have no say.”
The Association of Lawyers for Children is an organisation that has the following overarching aims:
A spokesperson for ALC told Children First that ALC is concerned to ensure the voice of the child is heard in the Family Court, in accordance with Article 12, that a child has a say in matters affecting them. “That is not necessarily the same as the child giving evidence in court, an experience that can be daunting for adults. Prior to Re W (Children) (Abuse: Oral Evidence)  UKSC 12,  1 FLR 1485, it had been presumed that children should not give evidence in family cases. In Re W, the Supreme Court set out the principles that apply, with Baroness Hale, in her judgment, holding that the object of proceedings is to achieve a fair trial in the determination of the rights of all the people involved. Therefore, it is not appropriate to make any presumption about whether or not a child should give evidence. In each case the court will have to weigh:
(a) the advantages that calling the child will bring to the determination of the truth; and
(b)the damage it may do to the welfare of this, or any, child.
“The welfare of the child is a relevant, but not the paramount, consideration.
“So, taking each case on its merits is essential. A series of cases that followed Re W illustrate that, with children who wanted to give evidence being allowed to, others not. In Re X (A Child: Evidence)  EWHC 3401 (Fam)  2 FLR 456 Theis J decided that a 17 year old, who wanted to give evidence about abuse of a child, X, should not. Crucially, she found that: ‘This is not a case where PJ's evidence on these issues is critical to its determination. The court has material available to it from many other sources, in particular the evidence from DJ… I fully acknowledge the likely distress and frustration that will be felt by PJ by my decision, but that is not a reason alone to grant the application. The way this issue has had to be raised with PJ again is very regrettable but could not be avoided if the court was going to exercise its discretion on an informed basis. When PJ is informed of my decision I would want it emphasised to him that the court already has his evidence in the form of his ABE interviews, which the court has seen and will pay very careful attention to. Through those interviews he is having a voice and has done what he can for X. It may be appropriate to inform and reassure him, in an appropriate way, that X has his own guardian and legal representatives.”
The spokesperson added that special measures can be applied, including the use of video-link, and intermediaries and a more creative approach can be tried. In Re B (Private Law Proceedings: Child's Evidence) 2014] EWCA Civ 1015,  1 FLR 1381, the Court of Appeal agreed with the original judge's decision that a Cafcass officer should meet a 13-year-old girl, put questions to her about issues of domestic violence, and report back to the court with her answers. In Black LJ’s view, that would enable the trial judge to assess the impact on the child before taking any further decisions about the girl's potential to give evidence.
However they added that in Re W, Baroness Hale considered the specific risks in private law cases, in which one parent or the other may be trying to gain an advantage by alleging abuse: “‘This does not mean that [the allegations] are false but it does increase the risk of misinterpretation, exaggeration or downright fabrication. On the other hand, the child will not routinely have the protection and support of a CAFCASS guardian. There are also many more litigants in person in private proceedings. So if the court does reach the conclusion that justice cannot be done unless the child gives evidence, it will have to take very careful precautions to ensure that the child is not harmed by this.”
The spokesperson said that it is difficult to say that more children should be giving evidence, but the court should be open to hearing evidence from children in the way that ensures the truth is established, bearing in mind the need to consider any potential damage to the child’s welfare, and how that can be managed with a creative approach to how evidence is given.
“It remains ultimately a matter for the court to decide what evidence it needs and how to receive that evidence; but measures to ensure the voice of the child is heard have to be welcome,” the ALC spokesperson concluded.