R (Children), Re

Permission for a child to give oral evidence in care proceedings requires a fact-sensitive balancing exercise. There is no presumption or starting point that a child should not testify. The court must ask whether justice can be done without further questioning, weighing the contribution oral evidence may make to determining the truth against the harm it may cause to the child or another child. Both limbs must be considered against the requirements of a fair trial and the rights of all parties. The child’s maturity, wishes, available evidence, credibility, and the likely value and risks of questioning are relevant, together with special measures. The rarity of permitting child evidence is a consequence of the balancing exercise, not a threshold test. Untested witness evidence may properly carry less weight.

This was an appeal by GR, aged 14, from the Family Court sitting at Swansea. The proceedings concerned allegations that her father had sexually abused GR and her younger sister, and that her mother had failed to protect them. GR had filed a verified witness statement denying the allegations and wished to give oral evidence. The local authority and children’s guardian opposed her application.

The judge considered only whether GR’s evidence was necessary for determining the truth. He did not conduct the separate welfare assessment required by Re W. The central issue was whether the Court of Appeal should conduct the full balancing exercise and permit GR to give evidence.

1. Disposition. The appeal was allowed. Permission was granted for GR to give oral evidence if, when the time came, she continued to wish to do so. Appropriate special measures were to be agreed to minimise the inevitable toll of the process.
2. Applicable test. The court applied Re W (Children)(Abuse:Oral Evidence) [2010] UKSC 12. The decision whether a child should give evidence is not governed by a presumption against calling children. The essential inquiry is whether justice can be done without further questioning. The court must balance the benefit of oral evidence to the fair and accurate determination of the truth against the risk of harm to the child or another child.
3. Both limbs required. The judge erred by deciding only that GR’s evidence was unnecessary for determining the truth. Both limbs had to be considered, even if the likely forensic contribution of the evidence appeared modest. The exercise had to be conducted against the backdrop of a fair trial, including the Article 6 rights of the father and the Article 8 interests of the children. Generalised assertions that giving evidence is difficult or stressful were insufficient without proper scrutiny of the particular circumstances.
4. Evidence and credibility. Under the Family Proceedings Rules 2010, the general position is that facts requiring proof by a witness are proved by oral evidence at the final hearing, and a party relying on a served witness statement must call its maker unless the court directs otherwise or the statement is admitted as hearsay. A statement admitted without oral testimony remains probative but may carry less weight. GR’s credibility was central, and her evidence was not marginal: she was the only direct source concerning whether her father had abused her, and her evidence could illuminate the household’s background and relationships.
5. Application. GR was mature, articulate, willing to give evidence and had no specific vulnerabilities beyond the strain of the proceedings. Her denial of the allegations did not alter the test. The welfare assessment included her wishes, the risk of grievance and injustice if she were disbelieved without being heard, and the protective value of video-link evidence. Lord Justice Briggs agreed, emphasising the central importance of cross-examination to a fair trial. Lord Justice Sullivan also agreed.

1. Court of Appeal (Civil Division). The appeal was allowed and permission was substituted for GR to give oral evidence, subject to her continuing wishes and appropriate special measures: [2015] EWCA Civ 167.
2. Family Court sitting at Swansea. His Honour Judge Sharpe refused permission for GR to give oral evidence in the care proceedings.