GA v London Borough of Southwark & Ors

In care proceedings, a parent’s refusal to give evidence ordinarily permits the court to infer that the relevant allegations are true, unless there is a sensible reason to the contrary. The court should not merely attach no weight to the parent’s written denials.

A child’s separate representation and sufficient understanding to participate as a party do not create an unrestricted right to give oral evidence. Whether a child should testify remains a matter for the trial judge’s discretion, balancing fairness and the potential evidential value against the likely harm to the child and the welfare considerations governing care proceedings.

The mother appealed against District Judge Million’s decision in care proceedings concerning two children. The district judge found that the threshold criteria under section 31 of the Children Act 1989 were established by reason of assaults and the resulting physical and emotional harm.

The appeal concerned the treatment of the mother’s decision not to give oral evidence and the refusal of permission for her son, who was separately represented, to give oral evidence in support of her case. The central issues were whether the mother’s written denials should have been given weight and whether the refusal to hear the child’s oral evidence made the hearing unfair.

1. Appeal dismissed. The findings of fact and the decision that the threshold criteria were satisfied were upheld.
2. The judge’s decision merely to attach no weight to the mother’s written statements was wrong. As a general rule, subject to the particular facts and any sensible reason to the contrary, where a parent in care proceedings declines to answer questions or give evidence, the court ought usually to infer that the allegations are true. In this case that inference should have been determinative of the allegations.
3. Care proceedings are directed to protecting and promoting the welfare of children, not punishing a parent or providing a forum for clearing the parent’s name. The approach to evidence must nevertheless respect fairness and the rights of parents.
4. The Children Act 1989 recognises that children may give evidence on oath. A child’s separate representation under Rule 9.2A means that the child has sufficient understanding to participate as a party, but it does not confer an automatic entitlement to give oral evidence.
5. The decision whether a child should give evidence requires an assessment of the child’s welfare, the matters to be discussed, the likely evidence, the child’s maturity and understanding, the evidential value of the testimony, and the possible harm caused by attendance and questioning. The trial judge retains a broad discretion to control the proceedings.
6. Although the refusal to hear the child’s evidence raised legitimate concerns about fairness, the decisions of the district judges were within their discretion and were not susceptible to challenge on this appeal. In any event, the inference from the mother’s failure to give evidence substantially outweighed any additional benefit that the child’s oral evidence might have provided.
7. The appeal was dismissed. There was no order as to costs, save for the usual assessment.

• High Court (Family Division): Appeal from the decision of District Judge Million dated 26 March 2003. Appeal dismissed.