X (A Child), Re

A child’s competence to give evidence and the discretionary decision whether evidence should be heard are separate questions. Competence requires sufficient understanding of the duty to speak the truth and sufficient understanding to justify receiving the evidence. The discretionary decision requires a fair-trial balancing exercise. The court must weigh the value of the evidence in determining the truth against the risk of harm to the child and any other child. A disability does not itself prevent evidence being given, but the court must assess the support required, the likely evidential value, the risks of distress or contamination, the availability of other evidence and the risk of delay. Evidence may properly be refused where, even with safeguards, it is unlikely materially to assist and would risk harm or derail proceedings.

These care proceedings concerned X, a child born in March 2010. The local authority relied on alleged sexual and emotional abuse within the maternal family to establish the threshold criteria under Children Act 1989, section 31. DJ, X’s maternal grandmother, applied for her 17-year-old son PJ, who had Asperger’s syndrome, to give oral evidence concerning alleged influence or coaching affecting his earlier ABE interviews.

The application arose after the mother withdrew earlier concessions and advanced a case challenging the reliability and possible contamination of PJ’s account. The court considered whether PJ was competent and, if so, whether he should give evidence orally, by written statement or by pre-recorded interview.

1. Competence. The court held that PJ was competent under section 96(2) of the Children Act 1989. He understood the distinction between truth and lies and had sufficient understanding to justify his evidence being heard, subject to appropriate support.
2. Applicable discretion. Applying the guidance in Re W (Children) [2010] UKSC 12, the court had to balance the advantages of PJ’s evidence in determining the truth against the damage it might cause to his welfare or that of another child. The object remained a fair trial of the disputed threshold issues. The court had to admit relevant evidence, but could not ignore the welfare consequences or the practical limits on the evidence’s usefulness.
3. Application. PJ’s Asperger’s syndrome was not itself a reason to exclude his evidence. The decision turned on the particular facts, including his processing difficulties, vulnerability, the extensive and abstract questioning required, the preparation and support necessary, the risk that the resulting evidence would have limited or no evidential value, and the availability of substantial evidence from other sources. Even with an intermediary and other safeguards, the court considered that the proposed evidence would be unlikely to clarify the issues.
4. The court also attached weight to the risk that permitting the evidence would derail or delay the fact-finding hearing, contrary to X’s welfare. PJ’s age and consistent wish to be heard were important, but he did not fully appreciate the consequences of giving evidence. The application was therefore refused in every proposed form: oral evidence, written statement and pre-recorded interview.
5. The judge made wider observations, obiter, about the absence of a clear funding scheme for intermediaries in family proceedings and the potential Article 6 and Article 8 implications. The application was refused.

First-instance decision. No earlier appellate decision is stated in the judgment.