G and E (Children) (Vulnerable Witness), Re

When deciding whether a vulnerable child should give oral evidence, the court must balance the potential benefit of the evidence in determining the truth against the possible harm to the child’s welfare. The assessment must be fact-sensitive and informed by expert evidence, the child’s competence and willingness, the importance of the evidence, and the safeguards available. A child’s vulnerability does not create an automatic bar to oral evidence. The judge must manage the process continually, controlling the form, length and manner of questioning and stopping or limiting cross-examination where it ceases to be fair or useful or risks harm.

The proceedings concerned public law applications relating to G, aged 17, and her seven-year-old brother, E. G had significant learning difficulties and alleged sexual abuse by her father. Her allegations formed the foundation of the local authority’s threshold case and were central to the determination of whether orders could be made concerning E.

The Official Solicitor, acting for G, accepted that she was competent but opposed her being called because of the possible impact on her mental health. The local authority and E’s guardian supported her giving evidence. The preliminary issue was whether G should give oral evidence and, if so, how questioning should be conducted.

1. Application refused. G was competent to give evidence under s.96(2) of the 1989 Act. The evidence of the experts and G’s performance in an ABE interview established that she understood the duty to speak the truth and had sufficient understanding for her evidence to be heard (paras [11]–[12]).

2. The discretionary exercise required the court to weigh the advantages which G’s evidence might bring to determining the truth against the damage which the process of giving evidence might cause to her welfare. The judge adopted the guidance in Re W [2010] UKSC 12, including the relevant considerations concerning the value of the evidence, the risks to the child and the ways in which questioning might fairly be conducted (paras [13]–[15]).

3. G’s evidence was crucial because her allegations were at the centre of the threshold case. Her accounts had not yet been tested, and questioning could assist in assessing issues including the father’s alibi and the possibility of influence or collusion. The fact that earlier ABE interviews might be reliable did not justify excluding oral evidence where the expert material identified reasons why G might provide fuller answers in an appropriately managed setting (paras [17]–[23]).

4. The risks to G’s mental health did not determine the issue against her giving evidence. The expert evidence indicated that risks arose from the litigation generally and that not giving evidence could itself be harmful. Those risks had to be reduced through careful judicial management and appropriate support (paras [27]–[33]).

5. G was to give live evidence. Counsel would initially be permitted to ask questions in the usual way, but the judge would keep under review the quality and usefulness of the evidence and any signs of discomfort. Questioning could be limited or stopped, and the identity of the questioner or other arrangements could be altered if necessary (paras [34]–[35]).

First-instance ruling in public law proceedings. No appellate history was stated in the judgment.