CD (A Child), Re

In deciding whether a child should be compelled to give evidence, the court must balance the possible assistance to determining the truth against the potential harm to the child’s welfare. A competent child is compellable in civil proceedings, but an unwilling child should rarely be required to testify. Generalised allegations of lying, speculative questioning and intimidating cross-examination are unlikely to assist the court. The court may refuse a witness summons where the child’s opposition is strong and the proposed challenge is insufficiently particularised.

Leeds City Council brought care proceedings concerning a five-month-old child after allegations that the first respondent had repeatedly sexually abused his 14-year-old niece. The parents sought an order requiring the niece, EF, to give oral evidence at a fact-finding hearing. They argued that the case turned on her credibility and that the allegations should be put to her directly. EF strongly wished not to give evidence. The central issue was whether the court should compel her attendance and testimony despite the likely impact on her welfare.

1. The application requiring EF to give oral evidence was refused. Although a competent child is a compellable witness in civil proceedings and a witness summons could have been issued under section 31 G of the Matrimonial and Family Proceeding Act 1994, the court had to assess both the forensic benefit and the potential welfare harm.
2. The guidance in Re W (children) [2010] 1 FLR 1485 remained applicable. The court considered the likely assistance that EF’s evidence would provide in determining the truth against the harm of requiring an unwilling child to participate in the process.
3. EF’s strong and consistently expressed wish not to give evidence carried substantial weight. The proposed challenge was largely a generalised accusation of lying. It was not a focused examination capable of materially advancing the fact-finding process.
4. The court endorsed the caution that generalised accusations, speculative questioning and intimidating cross-examination are unlikely to assist the court. The application was therefore rejected, principally because compelling EF would risk welfare harm without a sufficient evidential justification.
5. At the subsequent fact-finding hearing, the court found the allegations against the first respondent reliable and made findings of prolonged and repeated sexual abuse. The judgment also criticised serious safeguarding failures in permitting him wide, effectively unmonitored contact with children.