SW and KSW & Ors

A child will only rarely be compelled to give oral evidence in family proceedings. The decision is a judicial discretion for the particular case. Where recorded allegations remain untested by cross-examination, that limitation must be considered when assessing their weight.

Concurrent criminal proceedings do not themselves require care proceedings to be adjourned. The family court must remain fully informed about the criminal case, coordinate both processes proactively and ensure that each is heard at an appropriate time. A civil finding of abuse and a criminal acquittal are compatible because the proceedings apply different standards and evidential rules and serve different purposes.

The stepfather appealed against findings made during care proceedings that he had twice raped his teenage stepdaughter. The findings were based principally on recorded interviews; the child did not give oral evidence or undergo cross-examination. He was subsequently acquitted of the corresponding charges after a Crown Court trial.

The appeal challenged the refusal to compel the child to give evidence and the decision to determine the care proceedings without awaiting the criminal trial. It also raised concerns about the stepfather's lack of legal representation and the failure to coordinate the concurrent proceedings adequately.

1. Appeal dismissed. Permission to appeal was granted, but the judge's refusal to compel the child to give oral evidence was a permissible exercise of discretion. The judge acted in accordance with LM v Medway Council [2007] EWCA Civ 9 and recognised that the absence of cross-examination affected the weight of the child's recorded evidence. A child's reluctance to testify is relevant but not conclusive. Compulsion will be appropriate only in a rare family case.
2. The earlier order requiring the child to provide a statement was misconceived. Two recorded interviews already existed. A further statement was unnecessary and might have generated an additional argument for cross-examination.
3. The judge was entitled to decide the care proceedings without awaiting the criminal trial. Criminal proceedings are not, without more, a reason to adjourn care proceedings. Delay was already unacceptable, and the welfare need for expedition justified proceeding. The later acquittal did not contradict the civil findings because the two jurisdictions employ different standards of proof and evidential rules and serve different purposes.
4. Where care and criminal proceedings run concurrently, the family court must remain fully informed about the criminal case and act as the proactive coordinator. Close liaison should address timetabling, disclosure and evidential issues so that both proceedings are heard without avoidable delay and with minimal prejudice. The lack of coordination in this case was seriously unsatisfactory but did not invalidate the findings.
5. An appellate court could interfere with the factual findings only if the judge made an error of law or reached a conclusion that was not properly open on the evidence. Despite concerns about the treatment of the mother's evidence, the medical evidence and the absence of cross-examination, the judge was entitled to accept the child's account and reject the stepfather's credibility. The findings lay within the ambit of reasonable disagreement and were not plainly wrong.

1. Court of Appeal (Civil Division): Permission to appeal was granted, but the appeal was dismissed and the findings were upheld: [2009] EWCA Civ 644.
2. County Court: HHJ Marston found, on the balance of probabilities, that the stepfather had twice raped his stepdaughter. He refused to compel her to give oral evidence and determined the care proceedings without awaiting the criminal trial.
3. Crown Court: Following the care findings, a jury acquitted the stepfather of two corresponding counts of rape after he and the child had given evidence and been cross-examined.