P -S (Children)

A child who is capable of forming views has a right to be heard in proceedings affecting him or her. That right may be satisfied through a representative, guardian or other appropriate means. It does not confer a right to give oral evidence.

Whether to call a child as a witness requires a balance between the assistance which oral evidence would give to a fair and accurate decision and the harm which giving evidence may cause the child. The decisive question is whether justice can be done without further questioning. Under Children Act 1989 s 1(3), a mature child’s wishes and feelings may be highly important, but they carry no presumption of precedence over the other welfare factors.

M, aged nearly 15, was separately represented in care proceedings concerning himself and his younger half-brother. He wished to return to his mother’s care and applied to give evidence by video link so that the court could assess the strength of his feelings. The judge refused the application and subsequently made care orders for both children.

M appealed both orders. He contended that a child with independent party status had a right, or at least a presumptive right, to give oral evidence, and that a mature child’s wishes and feelings should presumptively prevail in the welfare assessment. The central issues were how a child’s right to be heard is fulfilled and the weight to be given to the child’s wishes under the welfare checklist.

1. Appeals dismissed. Sir Alan Ward, with whom Pitchford and Elias LJJ agreed, held that M had been fully and fairly heard. His wishes were undisputed, were clearly conveyed through his separate legal representation and the other evidence, and could be given appropriate weight without his oral evidence.

2. Article 12 of the Convention on the Rights of the Child, read with the domestic framework, gives a child a right to be heard. It does not prescribe the means by which the child must be heard. The child may be heard directly or through a representative or appropriate body. There is no entitlement to give evidence to the judge.

3. The court applied the balancing approach in Re: W (Children) (Abuse: Oral Evidence) [2010] UKSC 12. It must weigh the benefit of the child’s evidence to the fair and accurate determination of the issues against the likely harm to the child’s welfare. Justice may be done without further questioning where the relevant evidence is already available and undisputed. Here, the possible evidential benefit of observing M’s demeanour was negligible, whereas requiring him to assume responsibility for the outcome risked significant harm.

4. A judge’s meeting with a child should ordinarily assist the child’s understanding of the process and reassure the child that his or her views have been considered. It should not be used to obtain evidence in the absence of the other parties, since that may compromise their Article 6 right to a fair and public hearing.

5. The welfare checklist in Children Act 1989 s 1(3) creates no hierarchy or rebuttable presumption in favour of a mature child’s wishes. Their weight is fact-sensitive and may sometimes be determinative, but must be assessed with all other welfare considerations. The judge was entitled to conclude that return to the mother would be detrimental to M’s welfare and that care orders were the only proper outcome.

• Court of Appeal (Civil Division): Dismissed M’s appeals against the refusal to permit him to give evidence and against the care orders: [2013] EWCA Civ 223.
• Swansea Civil Justice Centre: Her Honour Judge Isabel Parry refused M permission to give evidence on 21 November 2011 and made care orders for both children on 24 November 2011.