Re S (Children), family law,  EWCA Civ 83, child witness, evidence, family proceedings, case management, vulnerable witness, intermediaries
The appeal in Re S (Children)  EWCA Civ 83 was against case management decisions made by Her Honour Judge Moir in care proceedings that a child witness should not be required to give live evidence.
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Feb 17, 2016, 05:04 AM
Article ID :116867
Challenging the evidence of an unwilling child witness
The appeal in Re S (Children)  EWCA Civ 83 was against case management decisions made by Her Honour Judge Moir in care proceedings that a child witness should not be required to give live evidence. A child, K (aged nearly 15 at the time of the appeal) had made serious allegations of sexual abuse from when she was aged six against her older brother, B, who was the father of the two children (aged four and two) in the proceedings. K was unwilling to give live evidence so that she would not be cross-examined by or on behalf of B.
Judge Moir held that K should not be required to give evidence. A similar case management direction was given in respect of evidence from two friends of K whom she had spoken to about the allegations. The judge made a finding of significant harm (Children Act 1989, s 31(2)) in respect of the two young children. A supervision order was made with supervised contact to B.
The problem for all parties was that K had been equivocal, to say the least, in what she said was the truth of what had happened (such that the police abandoned a prosecution of B based on her allegations), and she had fluctuated as to whether she was willing to give evidence. She had varied from serious allegations spanning a period of around 7 years to a denial that what she said was true. Black LJ traces the course of how this evidence was dealt with and the judge's approach to it at paras -. No alternatives to oral evidence were proposed to the judge, so she concluded that only the hearing of oral evidence was possible (see also Gloster LJ's conclusion at para , considered below), and, at the time of the final hearing, it was believed that K was unwilling to give evidence in that way.
The judge dispensed with the hearing of her evidence and therefore denied B of any opportunity to challenge what she said. She made findings base on what she could deduce from such evidence from K as could be placed before the court.
Over a dissenting judgment from Gloster LJ, Black and Vos LJJ dismissed the appeal based on the case management of K's evidence:
' [The judge's] starting point was that a fair trial needed to take place, that a usual component of a fair trial was for the person against whom allegations had been made to have the opportunity to put questions to or to cross-examine the person making the allegations, and that "to deny any party within a hearing that fundamental right is a very serious step indeed" (paragraph 6 of the judgment of 16 September 2014). She recognised the central importance of K's allegations in the care proceedings, which essentially turned on what she had said occurred. She had in mind Re W (Children)  UKSC 12 [sub nom Re W (Children) (Abuse: Oral Evidence)  1 FLR 1485] and the Guidelines in relation to children giving evidence in family proceedings produced in December 2011 by the Working Party of the Family Justice Council [see Family Law January 2012]'.
The judge had relied upon interviews with a guardian appointed for K and a social worker both to assess the evidence which K had given on different occasions and as to the effects on her of giving evidence and thus the 'quality of evidence she will give'. Accordingly, said Black LJ:
' ... The judge directed herself that an unwilling child should only very rarely be obliged to give evidence although it depended upon the circumstances. In this particular case, she questioned how much benefit it would be for the court to hear evidence now from K, summarising the position at the end of her judgment as follows:
" Overall, I have taken the view that K should not be required to give oral evidence for the reasons that I have outlined. Most particularly, I am not sure that it will assist the court very greatly, whether she maintains the allegations or denies them, but I am sure from the evidence that has been given that it will cause emotional harm to K, who is vulnerable in any event. In those circumstances, I do not take the view it is appropriate to take the exceptional course of requiring an unwilling young person to give oral evidence before the court."'
Black LJ therefore held:
' … [Judge Moir] certainly did not presume that K would not give evidence. Her judgment leaves no doubt that she gave appropriate weight to the need for a fair trial and the importance of enabling the person against whom allegations have been made to pursue those allegations with the person making them'.
Application of Re W
B alleged that his inability, in any real way, to challenge K’s evidence violated his rights under European Convention 1950 Arts 6 (fair trial) and 8 (respect for family life). In dealing with this Judge Moir and Black LJ relied on the Supreme Court decision in Re W (above):
' The impact of Re W is to sweep away what Baroness Hale described as "a presumption against a child giving evidence which requires to be rebutted by anyone seeking to put questions to the child" (para  of Re W). Following Re W, in order to decide whether a child should give evidence, the court is required to carry out an evaluation of the particular case before it…
 When considering whether a particular child should be called as a witness, the court has to weigh two considerations, namely the advantages that calling the child will bring to the determination of the truth and the damage it may do to the welfare of this or any other child (para 24 of Re W). On both sides of the equation, the court must take account of what steps can be taken to improve the quality of the child's evidence and at the same time to decrease the risk of harm to the child (para 27)'.
Re W concerned a 14-year-old ‘step-child’ of the father of four younger children who had made allegations of sexual abuse about him. Lady Hale (who gave the judgment of the court) noted that there remains a debate on how practice in relation to children’s evidence should be dealt with (eg as to how the recommendations of the Pigot Report should be dealt with in family courts: see ‘Vulnerable Witnesses’ below). Whilst that debate continues it is for the courts to decide, as a matter of law, in each case:
' … There is no problem with the admissibility of hearsay evidence [as explained at para 6]. The problem is whether the current practice of rarely calling children to give live evidence even when they could be called can be reconciled with the Convention rights or even with the elementary principles of justice. That is a question of law for this Court, even if it is one on which we should very much prefer to have the up to date advice of an expert multi-disciplinary committee'.
The aim of a fair trial is to determine the rights of all involved, including those of children who will be harmed if taken away from their families for no good reason, but will ‘be harmed if left in abusive families’ (para ). The court must admit all ‘evidence which bears upon the relevant questions’. And of the evidence of a child:
' When the court is considering whether a particular child should be called as a witness, the court will have to weigh two considerations: the advantages that that will bring to the determination of the truth and the damage it may do to the welfare of this or any other child. A fair trial is a trial which is fair in the light of the issues which have to be decided…'.
The European Convention balance
One of the important differences between Re S and Re W is tha,t in the earlier Supreme Court case, the court was concerned with evidence from a child as party, but in Re S the court was concerned with the evidence of a child as witness. Of another vulnerable individual as witness – a young adult who alleged abuse by a father in children proceedings – Lady Hale confirmed that the Art 6 rights of all the parties (ie not witnesses) were ‘in play’ (Re A (Sexual Abuse: Disclosure) UKSC 60,  1 FLR 948):
' … There are the article 6 rights of all three parties to the proceedings, A [child], M [mother] and F [father], to have a fair trial in the determination of their civil rights. The right to a fair trial is absolute but the question of what is fair may depend upon the circumstances of the case. There are the article 8 rights of A, M and F to respect for their private and family lives. There is also the article 8 right of X [witness] to respect for her private life. Article 8 rights are qualified and can be interfered with if it is necessary in a democratic society in order to protect the rights of others'.
Both Re A and Re S were concerned with a vulnerable witness; but in Re A the witness (X) was now adult, whilst in Re S the witness remained a child. By contrast, in Re W the evidence was from a child subject to proceedings.
The Court of Appeal in Re S  links the welfare of a child as witness with those of a child as party (as in Re W):
' … [In Re W at para 22] Baroness Hale forecast that the result of striking the balance [between demands of justice and the welfare of the child] may well be that the child should not be called to give evidence in the great majority of cases. In paragraph 30, having observed that the "essential test is whether justice can be done to all the parties without further questioning of the child", she predicted that the consequence of the balancing exercise that has to be done by the court "will usually be that the additional benefits to the court's task in calling the child do not outweigh the additional harm that it will do to the child".'
These are not Art 6 questions as far as the witness is concerned – as Lady Hale made clear in Re A (above): only the parties – such as K and the children in the proceedings – have Art 6 (and Art 8) rights. In such cases as Re S the child witness’s rights stand on her welfare alone.
Compelling a child to give evidence
The question of whether a child was compellable in family proceedings was not formally before the court (the issue was whether the judge was correct to manage the case as she did). However the parties agreed the law on compellability of a child, and this was summarised by Black LJ thus:
' … It may be helpful to record that counsel agreed that a competent child is a compellable witness in civil proceedings and that a witness summons could have been issued under section 31G of the Matrimonial and Family Proceedings Act 1984 if appropriate. Theoretically, the penalties for failing to attend in answer to a witness summons are committal to custody and/or a fine. However, there can be no detention for contempt of a person under the age of 18, see sections 89 and 108 of the Powers of Criminal Courts (Sentencing) Act 2000'.
Gloster LJ dissent – other measures for a child’s evidence
Gloster LJ dissented. She stressed the duty on the local authority to establish their application, the changes of mind of K and that it was ‘highly unsatisfactory’ that the court should have relied, for evidence that K would not give evidence, only on K’s guardian and the social worker. As with the other judges Gloster LJ assumed that Re W should apply to a child witness as to a child party (para ). Her main criticism was that it was ‘wrong [for the judge] not to explore other ways in which K could have given evidence’ (para ).
As long ago as 2010 Lady Hale looked at the extent to which family courts lag behind the criminal courts in dealing with evidence from vulnerable witness in Re W (paras –); and she touches on the point again in Re A (paras –). Since February 2015 the Family Procedure Rules Committee have been considering recommendations as to how evidence from children might be put before the court such as via intermediaries, or other special measures (see Report of the Vulnerable Witnesses and Children Working Group February 2015 and draft amendment rules). Matrimonial and Family Proceedings Act 1984, s 31F(6) (in force since April 2014) may give the court the power to act as intermediary where a witness is to be in examined by a party.
Of other measures available to the judge, Gloster LJ commented:
' … This was a case that cried out for special measures so as to ensure that the judge received direct evidence from K in relation to the allegations, and, in particular, her retraction of them, and was not forced to rely on the very unsatisfactory secondary evidence of the social worker and the Guardian as to their interpretation of K's evidence. In my judgment some sort of measure should have been in place to ensure that the judge heard directly from K on the fact-finding hearing'.
This lack of consideration of the options for receiving K’s evidence, and therefore permitting its effective challenge by the father, said Gloster LJ, denied the appellant father a fair trial (paras  and ) and would have led her to allow the appeal. See further Penny Cooper, 'Like ducks to water? How family courts have taken to the use of intermediaries for vulnerable witnesses and parties' due to publish in the March issue of Family Law.