Re W (Children)

There is no presumption or starting point against a child giving evidence in family proceedings. The court must ask whether justice can be done to all parties without further questioning of the child. It must balance the truth-finding advantages against the risk of harm to child welfare. Welfare receives great weight, but rarity is the likely result of that balance rather than a threshold requirement.

Relevant considerations include the existing evidence, the quality of any Achieving Best Evidence interview, the proposed questions, the child’s age, maturity, wishes and support, delay, and available protective measures. An unwilling child should rarely, if ever, be compelled. The same approach applies in private family proceedings, subject to particularly careful safeguards.

The appeal arose from care proceedings concerning five children. A 14-year-old girl alleged that her stepfather had sexually abused her. The local authority proposed to rely on her recorded Achieving Best Evidence interview, while the father applied for her to give live evidence by video link at the fact-finding hearing.

The judge refused the application by applying the established starting point that children should give evidence in care proceedings only exceptionally. The Court of Appeal dismissed the father’s appeal in Re W (Children) [2010] EWCA Civ 57, although its members questioned the underlying practice.

The central issue was whether that starting point was compatible with procedural fairness and the competing Convention rights of the children and adults concerned, and what principles should govern the discretion to call a child witness.

1. Appeal allowed. The question whether the child should give evidence was remitted to the judge for urgent reconsideration under the correct legal approach. The scheduled fact-finding hearing was not to be adjourned.

2. The established starting point, stated in LM v Medway Council, RM and YM [2007] EWCA Civ 9, was incompatible with the fair balance required between competing Convention rights. Article 6 requires overall fairness and normally an opportunity to challenge opposing evidence. The article 8 interests of the perceived victim and other children must also be protected. Although children will probably not be called in the great majority of cases, that must be the result of the balancing exercise rather than a presumption or threshold.

3. The essential test is whether justice can be done to all parties without further questioning of the child. The court must weigh the advantages which oral evidence may bring to the fair and accurate determination of the case against the damage it may cause to the welfare of the child or other children. Welfare is not paramount in determining this procedural question, but it must receive great weight because the proceedings exist to protect children.

4. The truth-finding assessment includes the issues requiring determination, the quality and sufficiency of the existing evidence, the quality of any recorded interview, and the nature of the proposed challenge. Focussed questions offering an alternative explanation may assist, while general accusations, fishing expeditions and intimidating questioning are unlikely to do so. Age, maturity and elapsed time affect the likely reliability of further evidence.

   The harm assessment includes age, maturity, support, wishes and feelings, the views of the guardian and those with parental responsibility, parallel criminal proceedings, and general as well as child-specific evidence of harm. An unwilling child should rarely, if ever, be compelled. Delay must also be considered under section 1(2) of the Children Act 1989.

5. The court must consider arrangements which may improve the evidence while reducing harm. These may include early recorded questioning, a video link, an intermediary, or questions put by the court. Fairness requires the challenge to be put so the child can answer it; it does not require counsel to question the child directly.

   The same approach applies in private family proceedings, although allegations made in parental disputes and the frequent absence of a guardian require especially careful safeguards. The issue should ordinarily be addressed at the earliest case-management hearing.

6. The judge had considered the relevant factors conscientiously but had been required by existing authority to begin from an exceptional-circumstances threshold. The Supreme Court could not be confident that the same decision would have been reached without that error. It declined to exercise the discretion afresh because it had not seen both recorded interviews and therefore remitted the question.

• United Kingdom Supreme Court: In Re W (Children) [2010] UKSC 12, the court allowed the appeal and remitted the child-witness question for urgent reconsideration without adjourning the fact-finding hearing.
• Court of Appeal: The court dismissed the father’s appeal in Re W (Children) [2010] EWCA Civ 57. It followed the existing practice while expressing concern about its underlying justification.
• First instance: The judge refused the father’s application for the child to give evidence, applying the prevailing exceptional-circumstances starting point.