(Family Division, Theis J, 9 December 2011)
In care proceedings involving a 2-year-old child, allegations of sexual abuse within the maternal family were made by the maternal uncle, who suffered from Asperger's Syndrome, and aunt, aged 17 and 10 respectively.
In ABE interviews they alleged the mother and father had instigated inappropriate sexual behaviour. The mother claimed the uncle and aunt's allegations were a result of the influence of the maternal grandmother. In order to refute that claim the grandmother made an application for the uncle to give evidence. A psychologist report concluded that with support he did have capacity to give evidence but there was doubt whether he fully understood the implications of doing so and in the interests of his welfare advised against him doing so. The uncle's specific difficulties did not prevent him from giving evidence per se but on the facts and circumstances of the case the balance tipped in favour of him not giving evidence and in any event his evidence was not critical to the determination of the issues. Application refused.