B (Child Evidence), Re

A court considering whether a child should provide evidence must conduct the individual balancing exercise prescribed in Re W. It must weigh the likely contribution of the evidence to a fair and accurate determination against the risk of harm to the child, giving that risk great weight. There is no presumption against calling a child.

The approach also applies in private law proceedings where the potential witness is not the subject child and has not previously given an account. The interests of the subject child include having decisions about future welfare made on reliable findings of past fact. A staged and professionally supported inquiry may be justified where the value and impact of the child's evidence cannot yet reliably be assessed.

In private law contact proceedings concerning a five-year-old boy, the mother alleged that the father had been violent during their relationship. The allegations were relevant to the proposed contact arrangements and the County Court directed a fact-finding hearing.

The mother sought evidence from her thirteen-year-old daughter, who was not the subject of the proceedings and had not previously given an account. Her Honour Judge Cameron directed a CAFCASS Family Court Adviser to meet the girl, assess whether and how she should answer questions or give evidence, and, if professionally appropriate, put questions to her. The father appealed that direction.

The central issue was whether the judge had wrongly embarked on that staged process under the principles in Re W [2010] UKSC 12.

1. Appeal dismissed. Lady Justice Black, with whom Lord Justice Fulford and Lord Justice Richards agreed, held that the judge had correctly applied the balancing exercise in Re W [2010] UKSC 12. The court must assess the particular child and circumstances. It must balance the benefit of the evidence to a fair and accurate determination against the potential harm caused by the process of obtaining it or giving it.

2. The absence of a prior account from the child, and the fact that she was not the subject of the private law proceedings, did not make the Re W approach inapplicable. The subject child also had an important interest in reliable findings about the alleged past violence because those findings informed the assessment of future risk and welfare.

3. The judge was entitled to regard the girl's potential evidence as capable of being important. She was said to have directly witnessed two significant incidents and might assist in testing the parents' competing accounts. Its eventual weight could not safely be determined before it was known what, if anything, she would say.

4. The court rejected the submission that no preliminary involvement of the child was permissible unless the court was already satisfied that her evidence would be valuable. A court may proceed step by step, gathering further information before deciding irrevocably whether evidence should be obtained or used. The judge was entitled to entrust the immediate interviewing decision to the Adviser’s professional judgment, subject to the Adviser protecting the child from harm.

5. The court gave non-binding guidance for the further management of the case. Any additional questioning by a CAFCASS officer required considerable sensitivity, including consideration of the officer’s role, the recording and transmission of answers, and the means by which they could be challenged. Further decisions remained for the judge, subject to ordinary appellate scrutiny of robust but fair case-management decisions.

• Court of Appeal (Civil Division): dismissed the father's appeal in [2014] EWCA Civ 1015.
• Medway County Court: Her Honour Judge Cameron directed a CAFCASS Family Court Adviser to assess whether and how the older child should be questioned or give evidence at the fact-finding hearing.