Nottingham City Council v The Mother & Ors

There is no presumption against children giving evidence in family proceedings. The court must conduct a bespoke balancing exercise between the forensic advantages of hearing the child and the potential harm to the child’s welfare.

The assessment should address the issues requiring determination, existing evidence, the quality of any ABE interview, the proposed challenge, the child’s age, maturity, wishes and support, delay, specific risks of harm, and measures capable of improving the evidence while reducing harm. The question should be raised and determined at an early stage. Where the forensic value is substantial and the children wish to give evidence, appropriate protective measures may justify calling them.

The local authority sought care orders concerning three children after the youngest child suffered life-changing brain injuries. The fact-finding hearing was imminent. The three older children had given ABE interviews, but one child had later retracted part of his account and made allegations of wider physical abuse.

The court was asked to decide whether the children should give evidence at the fact-finding hearing, taking account of their wishes, competence, welfare, the sibling relationship, the existing evidence and the forensic importance of their accounts. A related application concerned whether AA should remain represented as an intervenor.

1. Applicable approach. The court applied Re W (children) (abuse) UKSC 12. The former practice amounting to a presumption against children giving evidence was impermissible. The court had to balance the advantages of oral evidence in achieving a fair and accurate determination against the risk of harm to the child and other children.
2. The relevant considerations included the issues requiring determination, the quality of existing evidence and any ABE interview, the nature of the proposed challenge, age and maturity, the time since the events, support, wishes and feelings, the guardian’s views, delay, specific welfare risks, and the possibility of evidence being given in parallel criminal proceedings. The court also had to consider measures which could improve the quality of evidence and reduce harm.
3. The issue should be addressed at an early pre-trial stage after evaluating the evidence otherwise available. The court considered the guidance of the Family Justice Council and the approach in Re E (A Child) [2016] EWCA Civ 473.
4. All three children wished, to varying degrees, to give evidence and were capable of expressing their views. Their evidence had significant forensic importance because there were conflicting accounts of the precipitating event and the wider allegations depended substantially on W’s account. Although the guardian identified risks to the children and their sibling relationship, those risks could also arise if only one account were accepted without hearing the children.
5. The court therefore directed that all three children should give evidence. Their evidence was to be recorded, and questions were to be put by the guardian’s counsel rather than through conventional questioning. The court was required to avoid an Old Bailey-style cross-examination and to manage questioning in accordance with R v Barker [2010] EWCA Crim 4. AA was to remain an intervenor and represented because serious findings might be made against him.