The Supreme Court this week removed the presumption that only in exceptional cases should a child be called to give live evidence in family proceedings.
In Re W (Children)  UKSC 12, the court reformulated the approach a family court should take when exercising its discretion on whether to call a child.
Giving the lead judgement, Lady Hale agreed with counsel for the local authority that there were very real risks to the welfare of children which the court must take into account in taking this step.
However, she said requiring the existing approach, which requires anyone seeking to put questions to a child to rebut the presumption, cannot be reconciled with the approach of the European Court of Human Rights, which aims to strike a fair balance between competing rights under the European Convention on Human Rights.
In care proceedings, the balance has to be struck between Article 6 (the right to a fair trial) and Article 8 (the right to respect for private and family life).
Arguing that no one right should have precedence over the other, Lady Hale said: “Striking that 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.”
The judge said a court must weigh two considerations when deciding whether a particular child should be called as a witness in family proceedings, namely the advantages that will bring to the determination of the truth and the damage it may do to the welfare of the child or any other child.
The Supreme Court set out a number of factors that a family court needs to consider when carrying out the balancing exercise. These include:
- The issues the court has to decide in order properly to determine the case. Sometimes it may be possible to decide the case without making findings on particular allegations
- The quality of evidence it already has. Sometimes there may be enough evidence to make the findings needed, whether or not the child is cross-examined
- The quality of any ABE (Achieving Best Evidence) interview
- The nature of any challenge which the party may wish to make. Focused questions may help the court, while generalised accusations of lying, a fishing expedition or cross-examination designed to intimidate will not
- The age and maturity of the child
- The length of time since the events in question
- The support which the child has from family or other sources, or lack of it
- The child’s own wishes and feelings about giving evidence
- The views of the child’s guardian and, where appropriate, those with parental responsibility
- The risk of further delay to the proceedings
- Specific risks of further harm to the particular child, for example if they are already having to give evidence in parallel criminal proceedings.
Lady Hale said “that risk of harm is an ever-present feature to which, on the present evidence, the court must give great weight”. The judge added that the court endorsed the view that an unwilling child should rarely, if ever, be obliged to give evidence.
At both stages of the test, the court must also factor in any steps which can be taken to improve the quality of the child’s evidence, and at the same time decrease the risk of harm to the child. “These two aims are not in opposition to one another,” Lady Hale insisted.
The judge said the essential test is whether justice can be done to all the parties without further questioning of the child. She added: “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.”