LM (A Child) v Medway Council & Ors

In care proceedings, a child should not ordinarily be compelled to give oral evidence. Particular justification is required, and such orders will be rare. The judge must balance the need for the evidence, including its importance to determining the child’s future, against the potential for harm or oppression. Current research into the effects of child testimony must be considered; the judge must not rely only on the child’s appearance or demeanour. A video link reduces some practical stress but does not remove the psychological risks of recounting abuse and being challenged. In an exceptional case, oral evidence may nevertheless be ordered where it is needed for a satisfactory and fair determination and the likely harm is not oppressive.

The appeal arose from care proceedings concerning a 10-year-old child who had made video-recorded allegations that her father had abused her. Her mother later retracted her own allegations and said that she had instructed the child to make false allegations. The parents sought an order compelling the child to give evidence by video link. The child’s guardian and the local authority opposed the application on welfare and oppression grounds.

The Medway County Court ordered the child to attend for questioning. Permission to appeal was granted, and the appeal was dismissed on 10 January 2007, with reasons given in this judgment. The central issue was whether, in these unusual circumstances, the child’s evidence was sufficiently necessary to justify the risks of requiring her to give oral evidence.

1. Disposition. The appeal was dismissed. The Court of Appeal upheld the order requiring the child to give evidence by video link. There was no order for costs, save for detailed assessment of the costs of the guardian, mother and father.
2. Applicable guidance. Lady Justice Smith held that R v B County Council [1991] 1 FLR 470 and Re P (Witness Summons) [1997] 2 FLR 447 provided continuing guidance on the exercise of discretion. The law had not moved on merely because video links were available. The starting point was that requiring a child to give evidence in care proceedings was undesirable. Particular justification was required, and cases in which an order was appropriate would be rare.
3. Balancing exercise. The judge had to balance the need for the evidence against the potential for harm to the child. The need included the importance of the evidence to determining the child’s future and whether that future could be satisfactorily determined without it. The assessment of harm had to take account of current research and could not rest solely on an impression of the child’s demeanour. The child’s age and maturity were relevant. Welfare was an important consideration, but was not paramount in this procedural decision.
4. Application. The trial judge had misdirected himself by starting from the premise that a child would normally be called if questioning could occur without oppressive damage. The Court of Appeal therefore exercised the discretion afresh. This was an exceptional case: the mother and child had made similar allegations, the mother had retracted them, and nobody knew what the child would now say. The judge’s need for up-to-date evidence was substantial. Although preparation and cross-examination were likely to be distressing and presented a risk of psychological harm, the child was sufficiently mature and the likely consequences were not so grave as to amount to oppression.
5. Concurrence. Lord Justice Wilson agreed and explained that the application crossed the initial hurdle because the evidence appeared necessary for fairly disposing of the proceedings. The crucial further question was whether requiring the evidence would nevertheless be oppressive. Lord Justice Longmore agreed with both judgments.

• Court of Appeal (Civil Division). Permission to appeal was granted and the appeal was dismissed. The court exercised the discretion afresh and upheld the video-link evidence order: [2007] EWCA Civ 9.
• Medway County Court. HH Anthony Bradbury, sitting as a Deputy Circuit Judge, ordered on 5 January 2007 that the child attend to give evidence by video link in the care proceedings.