W (Children), Re

In care proceedings, whether a child should give oral evidence and face cross-examination is a discretionary case-management decision. The court must balance potential harm or oppression to the child against the importance of testing the evidence and the fair-hearing and family-life rights of all parties. The child’s welfare is not paramount for this issue. Existing Court of Appeal guidance that oral evidence from a child is undesirable, requires particular justification and will be rare remains binding, but does not create an inflexible prohibition. A judge who accurately applies that guidance, considers the competing factors and reaches a conclusion that is not plainly wrong should not be interfered with on appeal. The court nevertheless called for wider reconsideration of the practice.

Care proceedings concerned five children after the eldest, C, aged 14, alleged serious sexual abuse by the father, who was her de facto stepfather. The local authority initially agreed that C should give oral evidence by video-link, but later proposed relying on her Achieving Best Evidence interview as hearsay. The Children’s Guardian supported that change.

The father sought an order permitting C’s oral evidence and cross-examination, relying on the importance of the allegations, the parties’ Convention rights and the requirements of a fair hearing. Her Honour Judge Marshall refused the application on 30 November 2009. The issue on appeal was whether that discretionary case-management decision was plainly wrong and whether existing guidance unlawfully restricted the court’s approach.

Disposition

The appeal was dismissed. The three judges agreed on the outcome. Lords Justices Wall and Wilson gave the joint judgment, and Lord Justice Rimer agreed in a separate judgment.

1. The decision whether a child should give oral evidence and be cross-examined in care proceedings is a discretionary case-management decision. The child’s welfare is not the paramount consideration. The court must balance the potential harm or oppression caused to the child against the legitimate interest in testing the evidence, the importance of that evidence to the decision, and the parties’ Convention rights.
2. The existing jurisprudence remained binding. The descriptions of oral evidence by children as undesirable, requiring particular justification and being rare expressed the court’s concern about likely emotional harm and its prediction that this factor would be decisive in most cases. They did not impose an absolute prohibition or remove the need for a case-specific balancing exercise. The failure of later authorities to analyse the issue expressly under Article 6 did not make them per incuriam. Analysis through the Convention did not produce a significantly different result.
3. Judge Marshall had accurately summarised the authorities, considered the factors relied on by the father, addressed the competing Convention rights and recognised that the issue was finely balanced. Her refusal to direct oral evidence was a proper exercise of discretion and was not plainly wrong. The Court of Appeal therefore had no basis to intervene.

Wider reconsideration

The court considered that the time had come for wider consideration of the approach to oral evidence by children in family proceedings. It proposed sending the judgments to the President of the Family Division, with possible referral to the Family Justice Council. Questions included age thresholds, child-specific assessments of harm, protective measures, training and the use of video-recorded cross-examination.

Rimer LJ agreed that the appeal had to be dismissed because the existing guidance was binding. He considered the judge’s reasoning unsatisfactory, particularly her treatment of the possible value of cross-examination and the absence of an evidential assessment of oppression. Those criticisms were significant but did not alter the result.

• Court of Appeal (Civil Division) — [2010] EWCA Civ 57. Appeal dismissed and the case-management order upheld.
• Portsmouth County Court — On 30 November 2009, Her Honour Judge Marshall refused the father’s application for C to give oral evidence and be cross-examined in the care proceedings.