H (A Child), Re

When deciding whether a child should give evidence in care proceedings, the court must balance the evidential advantages against the potential damage to the welfare of the child or another child. There is no presumption for or against calling the child. The approach in LM v Medway [2007] EWCA Civ 9 had been rejected in W (Children) [2010] UKSC 12. However, an erroneous reliance on such a presumption does not require appellate intervention where a careful assessment of the particular circumstances shows that the same decision was inevitable.

The father appealed from a decision of Brighton County Court concerning whether his 14-year-old son, H, should give oral evidence in care proceedings. The judge had found that H had been struck with a spoon and refused the application for H to testify, relying in part on the approach in LM v Medway. By the time of the appeal, the local authority’s application for a care order had been dismissed. The central issue was whether the judge’s reference to the former presumption against a child giving direct evidence required the exercise of her discretion to be reconsidered.

1. The appeal was dismissed unanimously. The judge’s decision was not flawed, and there was no real prospect that reconsideration would produce a different result.
2. The Court accepted that the approach in LM v Medway [2007] EWCA Civ 9, which treated there as being a presumption against requiring or allowing a child victim to give direct evidence in care proceedings, had been rejected by the Supreme Court in W (Children) [2010] UKSC 12. The correct approach is a measured balance between the demands of justice and child welfare. The court must weigh the advantages that the child’s evidence may bring to determining the truth against the possible damage to the welfare of the child or another child.
3. The judge’s self-direction, expressed in terms of the usefulness of H’s evidence and whether giving evidence would be conducive to his welfare, was substantially the same as that approach. Her actual assessment of the competing factors was neutral and showed that she would have reached the same conclusion without applying any presumption.
4. The particular circumstances supported that conclusion. The appellant did not intend to cross-examine H. H’s account had varied in different circumstances. His guardian opposed the application, and the expert evidence identified significant emotional pressures. There was no cogent reason for H to give evidence, while there were cogent reasons against it, including the risk that the process would be abusive and the conclusion that giving evidence would not benefit his welfare.
5. Lord Justice Thorpe observed that it was questionable whether a family member retains a right of appeal against adverse findings of fact after the care proceedings have been dismissed. That issue was not necessary to the disposition. Order: appeal dismissed.

1. Court of Appeal (Civil Division): Appeal dismissed. The Court held that the lower court’s decision to refuse oral evidence was not vitiated by its reference to the former presumption. [2011] EWCA Civ 741
2. Brighton County Court: His Honour Judge Coates found that H had been struck with a spoon and refused the application for him to give oral evidence. The local authority’s application for a care order was subsequently dismissed.