A (A Child) (Vulnerable Witness), Re

When deciding whether a vulnerable witness should give evidence, the court must balance the need to determine the truth and assess the evidence fairly against the risk of physical or psychological harm to the witness. The court should seek, where justice requires the witness’s participation, to devise protective arrangements that improve the quality of the evidence while reducing the risk. The assessment is fact-sensitive and must remain under constant review. An intermediary and other special measures may be used. The witness’s age is not determinative: an adult with particular frailties may require the same protective approach as a child. The court must retain control of the process and stop or modify it if participation ceases to be fair, useful or safe.

These long-running private-law proceedings concerned allegations of sexual abuse made by X, a 21-year-old vulnerable woman, concerning A’s father. X was the only person able to give direct evidence of the allegation. The court had to decide whether steps should be taken towards requiring X to give evidence at the forthcoming final hearing, despite psychiatric evidence of potentially severe physical and psychological harm.

The issue arose before the substantive hearing. The parties differed as to whether X should give evidence, and, if so, what protective measures should be adopted. The central question was whether the court should sanction the involvement of an intermediary to assess the feasibility of X giving evidence and to recommend appropriate special measures.

1. Decision. The court sanctioned the instruction and involvement of Communicourt, an intermediary service, to assess whether X could give evidence and to advise on the special measures required. The decision was limited and subject to further preparation, a ground-rules hearing and continuing review.
2. Applicable approach. The court adopted the guidance in Re W (Children) [2010] UKSC12. The court’s task was to obtain the truth and receive evidence in the form best enabling its reliability to be assessed, while reducing the risk to the vulnerable witness. Although X was an adult, her particular frailties and relative youth justified applying the same protective, welfare-sensitive approach.
3. Balancing exercise. The psychiatric evidence showed serious risks whether X gave evidence or did not. There was no reliable basis for concluding that either course was unequivocally safer. The court therefore considered the importance of the allegation to the determination of A’s welfare, the possibility that justice could not be achieved without X’s evidence, the likely centrality and quality of her contribution, the possible assistance of an intermediary, and the need to keep the extent and manner of participation under review.
4. Protective control. The judge retained responsibility for ensuring fairness, relevance, clarity and protection throughout the hearing. Protective measures could include shielding X from the father and avoiding the need for visual or aural contact. The court was not required to decide finally at this stage the precise form of X’s evidence.
5. Disposition. The intermediary’s preliminary work was authorised, with detailed arrangements to be considered at the later hearing. The substantive fact-finding hearing was intended to proceed on the listed date.

First-instance interlocutory decision in continuing private-law proceedings. The judgment refers to an earlier Supreme Court judgment in the same proceedings but gives no citation for it.