S (Children)

In care proceedings, the decision whether a child should give oral evidence requires the fact-specific balancing exercise in Re W (Children) [2010] UKSC 12. The court must assess the evidential benefit of calling the child against the likely welfare harm, considering measures which may improve evidence or reduce harm. There is no presumption that the child will give evidence. Appellate intervention in that case-management assessment is exceptional.

Untested child evidence may nevertheless support fact-finding where the judge recognises the disadvantage to the party accused, evaluates the evidence cautiously, and tests it against the remaining material. Findings unsupported by an allegation or sufficient evidence cannot stand.

The father appealed against case-management decisions and findings made by HHJ Moir in care proceedings concerning his two young children. The local authority alleged that he had sexually abused his younger sister, K. K and two friends had given video-recorded Achieving Best Evidence accounts, but the judge decided that none should give oral evidence because of their welfare and the limited additional evidential benefit.

After a fact-finding hearing, the judge found the allegations proved and later made a supervision order under which the children lived with their mother and had supervised contact with their father. The appeal challenged the exclusion of the three girls’ oral evidence and the resulting findings, principally on fairness and evidential grounds.

Majority (Black LJ, with whom Vos LJ agreed): The appeal was allowed only to the limited extent of discharging the findings of anal abuse. K had made no allegation of anal abuse and the medical evidence could not sustain that finding. The remaining appeal was dismissed.

1. The judge correctly applied the framework in Re W (Children) [2010] UKSC 12. It required an evaluation from a neutral starting point, rather than a presumption against calling a child. The relevant balance was between the advantage of oral evidence for determining the truth and the welfare harm it might cause. The judge also had to consider steps capable of improving the evidence and reducing harm.

2. HHJ Moir had properly recognised the need for a fair trial and the importance of the father being able to challenge the allegations. She considered K’s fluctuating wishes, vulnerability, ability to cope with detailed questioning, the available recorded interviews, the limited likely value of further oral evidence, and the absence of a realistic intermediate option proposed below. Her conclusion that K should not be required to give oral evidence was within the proper ambit of her discretion.

3. The same was true of the decision not to require oral evidence from X and Y. Their evidence was substantially hearsay, the proceedings had adversely affected them, and the judge was entitled to regard compulsory attendance as disproportionate.

4. The Court of Appeal would not substitute its own assessment of such a case-management decision. Under Re TG [2013] EWCA Civ 5, intervention required an error of principle, disregard of relevant matters, reliance on irrelevant matters, or a decision outside the generous ambit of discretion. None was shown.

5. The judge’s remaining findings were sustainable. She expressly allowed for the absence of cross-examination, did not treat the video interviews as sufficient in isolation, and assessed them with other evidence, including the paternal grandmother’s evidence and K’s retractions. She was entitled to reject the suggested explanations for false allegations.

The Court expressed no view on whether, after Re W, a reluctant child may be compelled by witness summons in family proceedings.

Dissent: Gloster LJ would have allowed the appeal in full. She considered that the father had not received a fair trial because the judge had insufficiently explored direct evidence or special measures for K and could not fairly rely so heavily on her earlier untested accounts.

• Court of Appeal (Civil Division) — by majority, allowed the appeal only to discharge the findings of anal abuse; dismissed the challenges to the case-management decisions and the remaining findings: [2016] EWCA Civ 83.
• Newcastle-upon-Tyne District Registry, HHJ Moir — decided that K, X and Y would not give oral evidence; made findings of sexual abuse on 15 October 2014; and concluded the care proceedings on 8 December 2014 by making a supervision order.