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His Honour Judge Glenn Brasse - Criminal Proceedings and Children: A Most Damnable Delay

Date:6 OCT 2008

His Honour Judge Glenn Brasse.

Where there are Children Act 1989 (CA 1989) proceedings in which there is a child victim of serious non-accidental injury or sexual abuse and these are linked to criminal proceedings, many months or even more than a year can elapse between the child being interviewed under the Achieving Best Evidence (ABE) procedure and being cross-examined in the criminal trial. Self-evidently, this cannot be in the child's best interest nor can it serve the interest of justice. Where the child is in foster care awaiting permanent placement, a move will usually be unhelpful to the child until the criminal trial is over. The child might have been seriously abused by a parent against whom he or she will have to give evidence. That experience will be traumatic. The child will need time to recover before moving on.

In the CA 1989 proceedings the evidence of the child would have been admitted as a video recording. The interview would have been conducted by sympathetic and trained personnel. The child would rarely be required to appear in the witness box for cross-examination (see LM (By Her Guardian) v Medway Council, RM and YM [2007] EWCA Civ 9, [2007] 1 FLR 1698). It is generally not the practice to require a child to give live evidence in care proceedings (see Dame Elizabeth Butler-Sloss P in Re D (Sexual abuse Allegations: Evidence of Child Victim) [2002] 1 FLR 723). Even when the child has reached adulthood, the family court will still seek means of minimising the difficulties for him or her when giving evidence (see, for example, Roderick Wood J in H v L and R [2006] EWHC 3099 (Fam), [2007] 2 FLR 162). Even so, it is invariably an extremely distressing or embarrassing experience, particularly for a younger child.

The objective of holding care proceedings as soon as possible, often without awaiting the outcome of the criminal trial, to allow for the plans for the child to be implemented as soon as possible. This is intended to give practical effect to s 1(2) of the CA 1989 and s 1(3) of the Adoption and Children Act 2002 (ACA 2002), which recognises that delay in making a decision for the child is likely to be detrimental to his or her welfare. Yet, where a person proven to be the perpetrator in the family proceedings continues to deny his or her guilt, the child will frequently have to give evidence in the criminal trial. In the Crown Court, the procedure is not child-centred, and however skilled and experienced the advocates and the judge are, the child's story will be tested and challenged. Although the evidence is usually given over a live video link, the child will have had to watch the original video of his or her earlier interview, and will again have to recall the trauma of the abuse.

For the full article, see October [2008] Family Law journal.

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