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Is it in the best interests of a child to give evidence in a foreign trial?

Evidence in Foreign Courts 71283762 s 146x219Katherine Duncan explains how the court, in Re X, carried out a balancing exercise in determining whether a child, who was ward of the court, should be permitted to travel out of the jurisdiction to give evidence at a foreign criminal trial.

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Re X (wardship) (foreign proceedings: child’s evidence) [2019] EWHC 91 (Fam)

What are the practical implications of this case?

The case demonstrated the tension between the priority given to the welfare of the court’s ward and the autonomous legal procedures of another jurisdiction.

The court had regard to the following principles when determining the issue:

• there is no presumption against a ward giving evidence in proceedings merely because they take place outside the jurisdiction

• the court will respect the legal processes in other jurisdictions and the court should ascertain information about:

◦ the trial process, including measures to facilitate the child giving evidence
◦ the issue to which the child’s evidence is directed

• the ward’s welfare is a relevant but not the paramount consideration. Regard should be had to the factors in Re W [2010] UKSC 12, [2010] All ER (D) 29 (Mar) those being:

◦ the issues it is necessary for the court to decide
◦ the quality of the evidence already available, including whether there is enough evidence to make the findings without the child being cross-examined
◦ whether there is anything useful to be gained by oral evidence in circumstances where the child has not made concrete allegations
◦ the quality of any ‘achieving best evidence’ interview and the nature of the challenge
◦ the age and maturity of the child and the length of time since the events
◦ the child’s wishes and feelings about giving evidence
◦ the level of support the child has and the views of the guardian and those with parental responsibility
◦ the fact that the family court has to give less weight to the evidence of a child who is not called may be damaging to the child, and
◦ that the court is entitled to have regard to the general understanding of the harm that giving evidence may do to a child

• the balancing exercise—the court will consider the advantage giving evidence may bring to the particular child, as well as the damage it may cause, and the balancing exercise must have regard to the point that there is no presumption against a ward giving evidence in proceedings merely because they take place outside the jurisdiction and that the court will respect the legal processes in other jurisdictions

What was the background?
The case concerned two boys, X who was 12 years old and Y who was eight years old—both of whom were wards of the court. The application was for X to travel to India to answer a witness summons issued by the criminal court in India for him to give evidence at the trial of his mother who was charged with killing X’s father.

X wanted to give evidence in the trial to get justice for his father. The guardian considered the child’s views to be authentically his own and considered that if the child were denied theopportunity to give evidence at the criminal trial, this would impact adversely on his psychological wellbeing and cause anger and frustration.

Munby P in Re Ward of Court [2017] EWHC 1022 (Fam), [2017] All ER (D) 39 (May) held that there is no principle or rule for judicial consent to be required for wards of court to be interviewed by the police or to be called to give evidence in a criminal trial in this jurisdiction. There was no direct authority to be applied in the circumstances where the ward of court is being summoned to give evidence at a criminal trial in another jurisdiction. The issue for the court was whether it should apply the same approach it would have done had the criminal trial been in the UK.

What did the court decide?
The approach taken by the court is different to the approach the court is obliged to take if the criminal trial had been in this jurisdiction. The court considered that it strikes an appropriate and respectful balance between the child’s welfare and the judicial processes in another state.

In coming to a decision, Knowles J carried out a balancing exercise. On the one hand X’s account was the only eye witness account of his mother killing his father and the guardian had concluded that if X were denied the opportunity to give evidence, this would impact negatively on his psychological wellbeing. On the other hand, there were risks to X of emotional harm by him giving evidence, including the difficulty X would have in coming to terms with the mother’s acquittal should the court acquit, the ramifications and bereavement of the mother receiving a life sentence should the court convict, and the process of him being cross-examined.

The court permitted the child to travel to India to give evidence at the mother’s trial. The court considered it should make the decision without further delay, even if there was limited information about the proceedings in India about what protective measures could be put in place by the court for the child to give evidence.

Katherine Duncan, barrister at Garden Court Chambers (Interviewed by Stephanie Boyer)

The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.

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