X (Wardship : Foreign Proceedings : Child's Evidence)

A ward may give evidence in criminal or civil proceedings abroad: there is no presumption against permission merely because the proceedings are foreign. The court must respect the other jurisdiction’s legal processes and obtain sufficient information about the trial and the issue to which the child’s evidence is directed. The child’s welfare is relevant but not paramount. The court must balance the advantages of the evidence, including its contribution to determining the truth, against the risk of harm to the child, applying the relevant factors identified in Re W [2010] UKSC 12 so far as pertinent. The foreign process and the truth-finding function carry great weight. Permission should be granted where the benefits to the child and the foreign proceedings outweigh the risks, even where the foreign court does not provide the protective measures ordinarily available domestically.

Two boys had been wards of court since 2016 after their father was killed in India. Their mother was facing trial in India for his murder. The elder child, X, aged 12, had given the Indian police an account stating that he witnessed the killing and was summoned to give evidence at the trial.

X’s paternal aunt and uncle applied for permission to remove him to India. The paternal family supported the application, while the maternal family opposed it because of the anticipated emotional harm and possible media exposure. The central issue was how the wardship court should balance X’s welfare against the importance of his evidence and the autonomous criminal processes of a foreign state.

1. Applicable approach. A major step in the life of a ward ordinarily requires the approval of the wardship judge, but wardship cannot be used to intervene on the merits in an area entrusted by law to another public authority. In domestic proceedings, judicial permission is not required before a child is interviewed by the police or called to give evidence in a criminal trial. The present application was different because permission was required for X to travel abroad.
2. There was no presumption against a ward giving evidence in criminal or civil proceedings in another jurisdiction. The court had to respect the foreign legal process and the contribution which the child’s evidence might make to determining the truth. It should obtain sufficient, though not exhaustive, information about the trial process, available measures to facilitate the child’s evidence, and the issue to which the evidence was directed.
3. X’s welfare was a relevant but non-paramount consideration. The court had to balance the advantages and potential damage, taking account of the relevant Re W factors, including the issues requiring decision, the quality of existing evidence, the usefulness of oral evidence, the child’s age and maturity, wishes and feelings, available support, and the likely harm of giving evidence. The foreign process and truth-finding considerations carried great weight.
4. On the facts, X’s evidence was crucial because there was no other eyewitness account. His wish to give evidence was authentic, he was supported at school, and arrangements and undertakings reduced the risk of media exposure. The risks of cross-examination, seeing his mother, and the possible outcome of the trial were real, but did not outweigh the advantages to X of giving evidence. Permission was therefore granted for X to travel to India.
5. Once X had given evidence and returned, no purpose remained in continuing the wardship. The wardship of both children was to be discharged on their return to this jurisdiction.