Neutral Citation Number:  EWCA Civ 1015
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MEDWAY COUNTY COURT
HER HONOUR JUDGE CAMERON
Royal Courts of Justice
Strand, London, WC2A 2LL
LORD JUSTICE RICHARDS
LADY JUSTICE BLACK
LORD JUSTICE FULFORD
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RE B (CHILD EVIDENCE)
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Mr Alex Verdan QC & Mr Grant Armstrong (instructed by Berry & Berry LLP) for the Appellant
Mr Anthony Kirk QC & Miss Charlotte Hartley (instructed by Davis Simmonds & Donaghey Solicitors) for the Respondent
Hearing date : 1st July 2014
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Lady Justice Black :
In order to avoid further delay for the children involved in these proceedings, at the end of the hearing of this appeal, we immediately announced our decision to dismiss it for reasons which would follow in writing. These are those reasons.
On 12 February 2014, Her Honour Judge Cameron gave directions in a case concerning a 5 year old boy, C. The proceedings were private law proceedings brought by C's father (F) with the objective of obtaining an order for contact with C who he has not seen since the end of 2011.
In response to F's application for contact, C's mother (M) asserted that F had been violent to her during their relationship. Her allegations, which F denied, were considered material to the issue of contact and it was directed that there was to be a fact finding hearing. M wanted her older child (a daughter, G, who was born in January 2001 so is now 13 years old) to give evidence at the fact finding hearing about some of the violent incidents, those in question having occurred during 2011, and her application to this end was considered by Judge Cameron on 12 February 2014. She ordered the involvement of a Family Court Adviser from CAFCASS ("the Adviser") who was to see G to explore matters further. It is against this that F appeals to this court, with permission of the judge herself.
The order that Judge Cameron made is detailed. The preamble set out that "before determining the issue of whether G should answer questions or whether G should give evidence it is necessary for the Court to obtain a report from a Family Court Adviser on the issues set out below". In the body of the order it was provided that the officer was to "meet G on probably 2 occasions" and then to provide "a section 7 report in accordance with the decision in Re W
 UKSC 12 and the Working Party of the Family Justice Council Guidelines December 2011  Fam Law 79 to assist the court as to whether (and if so how) G should answer questions put in writing and/or to give evidence at the fact finding by videolink".
In fact, the "consequential provisions" of the order which followed entrusted rather more discretion to the Adviser than these general passages imply and envisaged that she may actually proceed to put questions to G. The parties were directed to agree and provide to the Adviser "a list of proposed questions ….that they would seek to be put to G". The officer was then to meet G in a neutral venue and it was:
"left to the Adviser's professional judgment as how to conduct the interviews and whether or not the questions should or should not be put to G and if so the format and formulation of the questions or any additional questions the Adviser feels appropriate to the issues in Re W but the Court's provisional expectation would be that none of the questions proposed by the parties should be put on the first occasion or until the Adviser feels appropriate"
The order set out what the court wanted the report to cover, namely (1) whether it would be "appropriate and/or within G's best interests or potentially harmful for G" to answer any questions drafted by the parties and/or to attend court to give evidence and be cross-examined, whether by video-link or otherwise, at the fact finding hearing (2) whether G was willing to answer questions or attend a fact finding hearing to give oral evidence and (3) if the Adviser decided it was appropriate to put the questions to G, a report of her answers.
The matter was listed before Judge Cameron on 24 March 2014 when she was to consider, amongst other things, whether (and if so how) G would answer the questions posed or give oral evidence. The fact finding hearing was to have taken place on that date but it was postponed in view of the preparation still to be done.
Judge Cameron's judgment
We have the benefit of an extempore judgment given by Judge Cameron explaining the reasoning behind her order. She observed that M's allegations against F were serious allegations. This can be seen from the Schedule of Allegations prepared on M's behalf which features some general allegations plus nine specific incidents, of which eight were to be explored at the fact finding hearing. Precisely what evidence G might be able to give about the incidents is not known as she has not yet given any account. However, M's case is that she can give evidence relevant to the following three incidents:
i) An incident in January 2011 when M says she was pushed down the steps by F and broke her ribs; F says M fell accidentally when he was not even there and points out that she made no allegation of assault at the time, either to the paramedics who attended her or at the hospital;
ii) An incident in February 2011 when M says that in the presence of G, F tried to force-feed her with painkillers whilst threatening to hang her; F says this never happened at all;
iii) An incident in September 2011 when F threatened M in a shop in front of the children; F agrees that he approached M and the children on that day but denies making any threats.
As we have seen from the order, Judge Cameron made her decision about G in the light of the Supreme Court decision in Re W
and the Family Justice Council Guidelines. She worked on the basis that G's welfare was a relevant consideration but not the paramount consideration. She referred to "the general evidence of the harm which giving evidence might do to a child" (§6) and to a number of other relevant considerations including "the potential quality of the evidence….the challenges that might be made, the use of focused questioning, the age and maturity of the child…and the time which has elapsed since the events in question occurred" (§5), as well as "the risk of delay…..the support or otherwise that she has had from family or other sources…..her own wishes and feelings about giving evidence" (§6), observing that "an unwilling child should never – or very rarely – be obliged to give evidence".
The judge concluded that she could not "make a proper decision about this matter without specialist help". She said that she particularly had concern about a passage from §30 of Re W
where Baroness Hale said:
"Our prediction is that, if the court is called upon to do it, the consequence of the balancing exercise will usually be that the additional benefits to the court's task in calling the child do not outweigh the additional harm that will do to the child."
Judge Cameron's judgment clearly conveys that she recognised the importance, both for the parties and for the children, of the decision she was making about G. It leaves one in no doubt that she was of the view that, if established, the behaviour of which M complained, taken together with any psychiatric assessment that there was in relation to F, had the capacity to influence whether or not F had contact with C. She said at §8:
"This is really such an important issue and the fact finding must be properly conducted, of course, scrupulously fairly so that justice is done to both parties and the Court is given the full benefit of all the best evidence which is available, that it is only fair that the question of G giving evidence is properly looked at by a professional."
The seriousness with which the judge approached her task is underlined by the fact that she took the very unusual step, on 17 March 2014, of giving permission for F to appeal her order to this court.
The Family Court Adviser's report
No stay was granted in relation to the February order until 17 March 2014. By then the Adviser had already seen G and prepared a report. Their meeting took place on 3 March 2014 and the report, which the parties agreed we should see, is dated 13 March 2014. In it, the Adviser set out that G appeared to her to be older than her age, presenting as a quiet, thoughtful young lady who wants what is best for her family. The Adviser reported that G said that she had witnessed a lot of things F did to her mother and did not want anything to happen to her brother. G and the Adviser discussed various ways of giving evidence. The Adviser had been considering meeting G again to go through the questions but that did not happen. The precise reason for that is not spelled out though it may well have been to do with the Adviser's view that the proposed questions for G (which had been drafted by M, F not having been prepared to participate in the process) were inappropriate. She recommended in her report that the questions should be reworded and reduced in number and also that G "should not be compelled to provide live evidence" and/or "subjected to live cross-examination".
Re W and the Guidelines
It is common ground between the parties that the principles set out in Re W
and the Guidelines are relevant in this case, although Mr Verdan QC (who, with Mr Armstrong, represented F on the appeal) stressed the difference between the facts in that case and the facts here.
 Re W
concerned care proceedings in which one of the subject children had made allegations, including during an "achieving best evidence" interview, against her stepfather who wanted her to appear at the fact finding hearing to give oral evidence. In contrast, we are concerned, of course, with private law proceedings in which the child who may have relevant information has not yet given any account and is not the subject of the proceedings.
The Supreme Court in Re W
expressly said that in principle the same approach would apply in private law proceedings, although pointing out specific risks to which a court must be alive in that context (§29). It did not consider specifically what the implications would be if the child in question was not him or herself the subject of the proceedings and/or if he or she had not yet given any account of events.
The impact of Re W is to require the court to carry out an evaluation of the particular case before it, sweeping 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" (§22). Such a presumption could not be reconciled with the approach of the ECtHR which aims to strike a fair balance between competing Convention rights, here Article 6 and Article 8. The court therefore has to consider whether a particular child should be called as a witness. Baroness Hale said that in so doing:
"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. [Counsel for the appellant] accepts that the welfare of the child is also a relevant consideration, albeit not the paramount consideration in this respect. He is right to do so, because the object of the proceedings is to promote the welfare of this and other children. The hearing cannot be fair to them unless their interests are given great weight." (§24)
It will be noted that, in this passage, Baroness Hale endorsed counsel's concession about the relevance of the child's welfare by reference to the fact that the proceedings had as their object the promotion of that child's welfare. That is not the case with G and one can see, therefore, a rudimentary foundation for the argument that the approach outlined in Re W
may not apply.
However, not only do I not think there is any reason in principle why this variation (or indeed the fact that the child has not yet given an account of events) should render the Re W
approach inapplicable, in fact this court has very recently treated it as applicable in the case of a child who was not the subject of the proceedings in Re B (a child)
 EWCA Civ 843, which concerned the question of whether a 16 year old boy should have been required to give evidence against his mother in wardship proceedings about his sister.
The factors that must be taken into account in determining whether a particular child should give evidence can be divided into two broad categories. The first category (see §25 of Re W
) is concerned with the nature and quality of the evidence (both the child's evidence and the evidence in general) and requires a consideration of what is to be gained, in terms of the fair and accurate determination of the case, from calling the child. The second is concerned with the risk of harm to the child from the process of giving evidence, to which the court must give great weight (see §26 of Re W
). The court must factor in the steps that can be taken to improve the quality of the child's evidence and decrease the risk of harm to the child (§27 and 28).
What comes over very clearly from Re W
is that it was not expected that it would become routine for children to give evidence in family cases, see, for example, the following observations which include the passage from §30 which Judge Cameron quoted:
"Striking the balance in care proceedings may well mean that the child should not be called to give evidence in the great majority of cases, but that is a result and not a presumption or even a starting point." (§22)
"Our prediction is that, if the court is called upon to do it, the consequence of the balancing exercise 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. A wise parent with his child's interests truly at heart will understand that too." (§30)
"[w]e would endorse the suggestion….that the issue should be addressed at the case management conference in care proceedings or in the earliest directions hearing in private law proceedings. It should not be left to the party to raise. This is not, however, an invitation to elaborate consideration of what will usually be a non-issue." (§31)
F's appeal arguments and discussion
F's written grounds of appeal are grouped under 11 headings and the arguments advanced in support of them range widely over the judge's judgment and her decision. Mr Verdan sensibly used his oral submissions to concentrate the argument on the central issues. In what follows, I will attempt to capture the essence of the submissions made on F's behalf, although in my words rather than those of counsel.
The core argument on F's behalf was that although the judge had listed the Re W factors, she had failed to give them weight and had thus arrived at a fundamentally wrong conclusion. Mr Verdan submitted that the essential test emerging from Re W is whether justice could be done without questions being put to the child. In this case, it could be, he said.
I would prefer not to reformulate what the Supreme Court said in Re W in any way. The better approach is simply to balance the relevant factors in the way there described. I will come to consider that exercise shortly but first, a general point about the interests in play in the balancing exercise.
Baroness Hale spoke of the court weighing the advantages that calling the particular child as a witness would "bring to the determination of the truth" (see the passage from §24 quoted above). The pursuit, in public and private children proceedings, of "the truth" about past events is not an abstract endeavour. What happened in the past is the foundation for informed decisions about the future, including decisions as to what, if any, risk of harm a particular course of action may present to the child who is the subject of the proceedings. The more reliable the court's findings as to what happened in the past, the more reliable should be the prognosis for the future and the better the court should be able to judge where the welfare of the subject child lies. It follows that the Re W balancing exercise is not only concerned with the interests of the adult parties and the child who may have evidence to give but also with the interests of the subject child, even if he or she is not actually made a party to the proceedings. He or she undoubtedly has an interest in the nature and quality of the evidence upon which the court proceeds.
In Mr Verdan's submission, a proper weighing of the factors in this case could produce only one answer, namely that there was no need to have evidence from G because the ground was covered by other evidence, notably that of M and F themselves, and this was not a case in which the child's evidence was essential. It was at best, he said, of "peripheral importance".
I cannot accept this description of the material that may be forthcoming from G. On M's case, she was a direct witness of two incidents of significance and she might also have things to say about the fall down the stairs which would go to the respective credibility of M and F about that. Evaluating evidence about past events in a case where there is little incontrovertible evidence pointing one way or another is a refined process. It is often not possible to predict in advance which pieces of evidence will hold the key to where the truth lies. Accordingly, I could not dismiss the possibility that G's contribution may be of importance, although without knowing what she would say, it is difficult to form any firm view. It seems to me that the judge was entitled to say that G's evidence was potentially "very much corroborating and supporting what M says went on" (§4). In so saying, she did not mistakenly think that G could offer material relevant to M's allegation that F threatened to abduct C (as it was submitted to us on F's behalf that she did). She was clear in the first paragraph of her judgment about the limits of G's possible contribution. In addition, there is no doubt that she was aware of the other evidence that would be available; the concluding five paragraphs of her judgment set out directions with regard to it and show her grasp of the detail of the case.
Mr Verdan rightly submitted that it is very rare for children to be called to give evidence in domestic violence cases such as this one. As we know that children do witness domestic incidents, he invited us to draw the conclusion from this that there is no evidential value in calling a child to tell what they can about such events. I am not prepared to draw that conclusion. A parent's decision to call or not to call their child to give evidence is not a clinical or forensic decision such as a lawyer would make but involves (or should involve) the exercise of parental concern for the child. As Baroness Hale said (above), "[a] wise parent with his child's interests truly at heart will understand" the harm that calling the child will do to him or her. It is not likely therefore to be routine that parents have recourse to the evidence of their child. Indeed, one would expect that they would need to be persuaded by a very good reason before they would even contemplate it.
For similar reasons, I would not expect our endorsement of Judge Cameron's decision to open the floodgates, leading to a widespread practice of calling children as witnesses in cases such as this one. The Supreme Court did not consider that their decision would lead to children routinely giving evidence, predicting that the outcome of the court's balancing exercise, if it was called upon to adjudicate upon such matters, would be the conclusion that the additional benefits in calling the child would not outweigh the additional harm it would cause him or her. I am sure that the natural sensitivity and caution of the family courts, which originally generated the now defunct presumption, can be relied upon to ensure that matters are approached in a way which properly safeguards all the interests involved.
In addition to the argument that G's evidence was peripheral, it was also argued on F's behalf that it was wrong to have embarked upon the Family Court Adviser path because it would (or should) lead nowhere as the shortcomings in G's evidence rendered that evidence of little value. The shortcomings were said to arise from matters such as G's age, the lack of a contemporaneous statement from her, the passage of time since the incidents, and the likely influence upon her account of having lived in the meanwhile with M who was negative to F.
I recognise the logic in the submission that the court should not involve a child in steps designed to explore the possibility of him or her giving evidence unless satisfied that the evidence is likely to be of value. However I would not take such an absolute position. It can be difficult to take a reliable decision in a vacuum and there can sometimes be merit in a step by step approach which enables more information to be gathered before deciding irrevocably. In deciding what steps to take, the apparent nature, quality and relevance of the evidence are obviously material but the court may not know enough in the early stages to form a concluded view about matters such as this.
In this case, it is unfair to the judge to suggest that she failed to take into account the potential limitations on G's evidence and on the part it might ultimately play in the case. She remarked more than once on the time that had elapsed since the events. She was conscious of the need to consider the "potential quality of the evidence" (§5). She remarked on G's age at the time and the fact that she had not given an interview. And she herself had "real concerns about a child of G's age giving evidence as it were against her stepfather" and had had the thought that "really what the Court was needing to do was to focus on the parents' own allegations and defence and decid[e] them on the basis of veracity and credibility" (§4). The judgment may not have contained a long discussion of these issues but this court has got to be realistic about the constraints on judges giving extempore judgments, as they have to do to get through the day to day business of the family courts. The judge signalled clearly that they were in her mind and that is enough. Furthermore, it has to be remembered that so far, she has not got to the point of determining what use is to be made of any material emanating from G. She will therefore have the opportunity to revisit issues such as these further on in the process.
For the moment, the judge decided to go as far as permitting the Adviser to put such questions as the Adviser thought appropriate to G. The order that emerged from the hearing should have reflected her decision more accurately but its inconsistencies of drafting do not suggest to me any inconsistency in the judge's reasoning, nor is there any uncertainty about what she decided. I have given thought to whether she should have limited the process to an exploration by the Adviser of the impact on G's welfare of providing information/giving evidence, requiring the matter then to come back before her for consideration of whether, and if so what, questions should be put to G. This course may often have much to commend it but I could not say that the judge was wrong to manage matters as she did. Interviews with children are not predictable. Sometimes the child begins to speak about the substance of the case unbidden or it may be clear to an experienced CAFCASS officer that the child is not only ready to do so but needing to do so. I do not think the judge can be criticised for choosing a course which catered for this, trusting to the professional judgment of the Adviser to ensure that the process was not harmful to G. The Adviser fulfilled her brief wisely, as one would expect.
The judge said in her judgment that she had considered everything very thoroughly and it is plain from it that she had. I do not accept that she paid only lip service to Re W as was submitted on F's behalf. Her evaluation was appropriately conditioned by what was said there and the decision to which she came cannot be said to be wrong.
Mr Kirk QC, representing M with Miss Hartley, submitted that the appeal was a pre-emptive strike on the part of F, being premature when very little had in fact been decided by the judge and in particular not whether G should give evidence. To an extent, I think Mr Verdan accepted this although he did not accept that it was in any way inappropriate to have pursued the appeal now. He invited us to give guidance that would assist the judge in reaching her next decisions. I would not be prepared to go very far down this route, and particularly not when the President, in his 12th View from his Chambers, has so recently announced a new Children and Vulnerable Witnesses Working Group.
There are a number of options open to the judge, ranging from refusing to allow the process to go any further at all to permitting M to call G to give evidence in the court room and F to cross-examine her. In between, are various possibilities, including the Adviser putting factual questions to G which may or may not give rise to relevant answers which may or may not be adduced in evidence at the fact finding hearing in some way.
As things now stand in this particular case, I suspect that were I in the judge's position, before taking any more decisions about G, I might wish to hear short evidence from the Adviser in order to explore a bit further her impressions of G and her assessment of the impact that further involvement (or non-involvement) in the proceedings would be likely to have upon G and upon family dynamics generally. In deciding whether to request the Adviser to play any further role in questioning the child, I would no doubt want to consider whether there was a risk that the Adviser's traditional role would be compromised if she were to be required to go further in gathering evidence from a potential witness than might normally be the case. CAFCASS officers do collect factual information about families which they relay in their reports. For example they obtain information from schools and social services, they speak with parents and other adults about the factual issues in the case, and they obtain information from children directly about their wishes and feelings and, in Hague abduction cases, about their objections to returning to their country of habitual residence. However, whether to request a CAFCASS officer to put specific questions to a child would be a question to be approached with considerable sensitivity and, of course, if there was to be questioning, thought would have to be given to how the answers to the questions were to be recorded and transmitted to the parties and the court and how they could be challenged in the fact finding hearing.
The resolution of issues such as these will depend on the circumstances of the particular case. The judge in this case decided to edge forwards and it is entirely a matter for her how she now proceeds, in the light of the additional information available, subject only to scrutiny of her decisions by this court. In this regard, counsel reminded us of Re TG (Care Proceedings: Case Management: Expert Evidence)
 EWCA Civ 5 which leaves no doubt as to the importance attached by this court to supporting first instance judges who make "robust but fair case management decisions" and sets out again the limited basis on which it can interfere (see particularly §§35 et seq).
Judge Cameron was acutely conscious of the need to avoid further delay in this case, as can be seen from her order of March 2014. The appeal having been dismissed last week, I hope that the matter has by now been scheduled for a further directions hearing in front of her.
Lord Justice Fulford:
Lord Justice Richards:
I also agree.