H (Children)

In care proceedings involving vulnerable young witnesses, whether they should attend for cross-examination depends on whether attendance would be oppressive. Article 6 fair-trial rights are relevant but do not require attendance where repetition of traumatic evidence risks significant harm. Care proceedings ordinarily take priority over related criminal proceedings. A criminal case alone is not a reason to adjourn, and delay is generally detrimental to children. The sequence remains a fact-sensitive case-management decision. Criminal proceedings may precede care proceedings where there are clear and tangible benefits for the children, particularly where fragile witnesses may be able to give evidence only once. A decision on cross-examination may be premature and should be reconsidered after the criminal trial if circumstances materially change.

These conjoined appeals arose from care proceedings in the Medway County Court concerning two children. The county court judge refused an application by intervenor Mr P to require certain vulnerable witnesses to attend for cross-examination, directed that specified ABE interviews and hearsay statements be admitted, and adjourned the fact-finding hearing until completion of a related criminal trial. The guardian challenged the decision to give the criminal proceedings precedence. Mr P challenged the refusal of cross-examination and the evidence orders. The Court of Appeal considered the proper test for compelling vulnerable witnesses to attend, the usual sequence of care and criminal proceedings, and whether the cross-examination decision should be revisited after the criminal trial.

1. Cross-examination of vulnerable witnesses. The proper test was whether requiring attendance would be oppressive, following Regina v B County Council [1991] 1 WLR 221. The court had to consider the nature and context of the evidence, the individual vulnerability of each witness, and the total effects of the proceedings, including the harm caused by repeating traumatic evidence. The judge was entitled to regard the witnesses as exceptionally vulnerable. Although the right to a fair trial under article 6 was material, it did not prevent a finding that attendance would be oppressive where a second ordeal risked significant harm.

2. Order of proceedings. The general approach in Re TB (Care Proceedings: Criminal Trial) [1995] FLR 801, and endorsed in R v L [2006] EWCA 1902 (Crim), [2006] 1 WLR 3092, is that care proceedings should ordinarily precede criminal proceedings. Criminal proceedings alone do not justify an adjournment, and delay is generally detrimental to children. The rule is not absolute. The order of proceedings is a case-management decision requiring a balance between delay, the children’s welfare, the interests of justice, and the preservation of reliable evidence. In this case, the fragility of the witnesses and the prospect that their evidence might safely be tested only once gave sufficient force to the decision to let the criminal trial proceed first.

3. Appellate review and reconsideration. The Court of Appeal might have reached a different conclusion, but the county court judge was not shown to have been plainly wrong. His case-management decision was therefore upheld. However, the decision refusing cross-examination and admitting the specified evidence was premature. After the criminal trial, the court would know what evidence had been given and whether the witnesses could face a second hearing. The relevant orders were accordingly set aside, with the issue to be reconsidered at a further directions hearing.

The guardian’s appeal was dismissed. Mr P’s appeal was allowed, and paragraphs 1 and 2 of the order dated 13 October 2006 were discharged.

1. Court of Appeal (Civil Division). The court dismissed the guardian’s appeal, allowed Mr P’s appeal, and set aside paragraphs 1 and 2 of the county court order.
2. Medway County Court. The county court judge refused the application to require certain witnesses to attend for cross-examination, admitted specified ABE and hearsay evidence, and directed that the fact-finding hearing await the related criminal proceedings.