Family Law

Challenging the evidence of an unwilling child witness

The appeal in Re S (Children) [2016] 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 [14]-[28]. 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 [63], 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.

The appeal

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 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:


Black LJ therefore held:

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):

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:


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 [23]). The court must admit all ‘evidence which bears upon the relevant questions’. And of the evidence of a child:

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) [2012] UKSC 60, [2013] 1 FLR 948):


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 [43] links the welfare of a child as witness with those of a child as party (as in Re W):


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:

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 [60]). Her main criticism was that it was ‘wrong [for the judge] not to explore other ways in which K could have given evidence’ (para [63]).

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 [6]–[10]); and she touches on the point again in Re A (paras [34]–[36]). 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 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 [65] and [69]) and would have led her to allow the appeal.

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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.