W (Children), Re

An order allowing a professional social-work witness to give anonymous evidence in care proceedings is a discretionary and highly exceptional measure. The court must balance the need for protection against prejudice to the parents and the fairness of the process. It should consider less prejudicial means of proving the relevant facts.

When a crucial identification is disputed, a family judge should carefully assess the opportunity for observation, prior familiarity, delay and the identification procedure. Criminal-law identification safeguards can usefully inform that assessment. A fleeting, delayed and suggestive photographic identification by a witness unfamiliar with the alleged driver was insufficient to support a positive finding of identity.

In care proceedings concerning two boys, the local authority sought to alter an agreed plan for a residential assessment of the mother and children. It relied on evidence from a former social worker, Miss X, that she had seen the mother as a passenger in a car driven by a man whom she later identified from a photocopy as the father.

The judge at Reading County Court permitted Miss X to give anonymous evidence from behind a screen. He found that the father was the driver, treating the mother’s denial as untruthful support for the identification. The mother appealed against the anonymity ruling and the finding of the father’s identity.

The central issues were whether anonymous evidence from this professional witness was justified and whether the identification evidence could safely establish that the father was the driver.

1. The appeal was unanimously allowed. Lord Justice Thorpe, with whom Mr Justice Bodey agreed, held that the judge was plainly wrong both to permit the professional witness to remain anonymous and to find that the father had been identified as the driver. The court set aside the notional order embodying those findings. There was no order as to costs.

2. The criminal authorities on anonymous evidence were directly applicable in criminal proceedings, but provided a parallel for public-law children proceedings. The consequences of accepting Miss X’s evidence could permanently undermine the mother’s prospect of caring for her children. Nonetheless, professional social workers commonly face threats in contested care cases. Anonymity for such a witness should therefore be highly exceptional.

   The judge did not sufficiently recognise that exceptional character. The mother knew, or should have known, Miss X’s identity. Miss X could instead have given limited evidence that she recognised the mother as a passenger, while making no identification of the driver. That evidence, or hearsay evidence requiring investigation during the assessment, would have addressed the local authority’s legitimate concern with less procedural unfairness.

3. The identification principles in Turnbull [1977] QB 224 could usefully assist a family judge assessing reliability. Miss X’s view of the driver was fleeting, at night and through two car windows. She had never seen him before, was shown a single photocopy after about 15 weeks, and had initially been mistaken about the date. The judge had correctly regarded the identification alone as insufficient. The Court of Appeal did not decide whether a finding that the mother had lied could ever provide supporting evidence, but held that, on all the circumstances, the positive finding that the driver was the father was plainly wrong.

4. The evidence did safely establish that the mother was a passenger. The court urged the local authority to reconsider prompt and safe residential assessment, including investigation of the mother’s account of that episode.

• Court of Appeal (Civil Division). The mother’s appeal was allowed. The court set aside the findings made following the hearing on 10 July 2002.

• Reading County Court. His Honour Judge McIntyre permitted a former social worker to give anonymous evidence from behind a screen and found that the father had driven the car in which the mother was a passenger.