In my view, they will be rare. The facts in Re W concerned the care of a 14 year old, who had made allegations of sexual abuse against her step-father. It had been agreed at a case management hearing that there should be a fact-finding in respect of the allegations, and that the girl would give live evidence by video-link. However, the judge asked for further argument on the issue. The local authority, having considered material received from the police, decided not to call the girl and sought to rely on her ABE interview instead.
The judge then refused the father's application for her to be called. The father's appeals were heard in quick succession by the Court of Appeal and Supreme Court. The Court of Appeal dismissed the father's appeal, adhering to LM v Medway and the other authorities on the point.
However, Wall LJ and Wilson LJ suggested that the time may have come for 'a wider consideration of the issue in relation to family proceedings than is possible in the light of the doctrine of precedent. Guidelines were produced in December , and are summarised below. Re W , meanwhile, progressed to the Supreme Court. Baroness Hale, giving the court's judgment, set aside the long-standing presumption against children giving oral testimony in Children Act proceedings.
Baroness Hale concluded as follows:. That cannot be reconciled with the approach of the European Court of Human Rights, which always aims to strike a fair balance between competing European Convention rights. Article 6 requires that the proceedings overall be fair and this normally entails an opportunity to challenge the evidence presented by the other side… Striking that balance in care proceedings may well mean that the child should not be called to give evidence in the great majority of cases, but that is a result and not a presumption or even a starting point.
Children are harmed if they are taken away from their families for no good reason. Children are harmed if they are left in abusive families. This means that the court must admit all the evidence which bears upon the relevant questions: whether the threshold criteria justifying State intervention have been proved; if they have, what action if any will be in the best interests of the child? The court cannot ignore relevant evidence just because other evidence might have been better.
It will have to do the best it can on what it has. In each case the court will have to weigh the advantages that the child's oral evidence will bring to the determination of the truth against the damage it may do to the welfare of that, or any other, child para. In analysing the advantages the child's oral evidence will bring the court will have regard to the following factors paras. In analysing the potential damage it may do to the welfare of that or any other child, the court will consider:.
Baroness Hale discussed techniques and technology which might be used by the court to maximise the advantage to be gained from the evidence whilst minimising the harm caused. For example, cross-examination via video link, and the use of intermediaries. In the authors' experience, the use of intermediaries is developing, and intermediaries can assist in securing the best available evidence.
Baroness Hale did not suggest that the same approach should apply when considering whether children should give evidence in private law proceedings:. This does not mean that they are false but it does increase the risk of misinterpretation, exaggeration or downright fabrication.
There are also many more litigants in person in private proceedings. So if the court does not reach the conclusion that justice cannot be done unless the child gives evidence, it will have to take very careful precautions to ensure that the child is not harmed by this. Guidelines in relation to children giving evidence in family proceedings For guidelines relevant to the consideration of whether or not a child should be further questioned or give evidence in family proceedings, see the Working Party of the Family Justice Council; Guidelines in relation to children giving evidence in family proceedings , December In carrying out the balancing exercise referred to at paragraph 11 above, the Court should have regard to:.
On a practical level, we suggest that apart from cases involving allegations of sexual abuse, it is likely to remain unusual for children to give oral evidence in family proceedings. Wishes and feelings Section 1 3 Children Act requires a court, when considering whether to make a public or private law order in respect of a child, to have regard to 'the ascertainable wishes and feelings of the child concerned considered in the light of his age and understanding '.
Wishes and feelings remain but a single limb of the welfare checklist: the court has a discretion as to which factors on the list are given more weight in any given decisions. Furthermore, as the flexible concept of 'welfare' remains paramount under s. The case law on the importance of wishes and feelings is sometimes difficult to reconcile. In Re R Residence Order [] EWCA Civ , [] 1 FLR , for example, the Court of Appeal emphasised that courts must be careful not to discount the wishes and feelings and the reasons behind them of mature children as against other welfare factors.
As a rough rule we would see these as needing to be taken account of at any age; above 10 we see these as carrying considerable weight with 6—10 as an intermediate stage and at under 6 as often indistinguishable in many ways from the wishes of the main carer assuming normal development.
Practice Directions. Practice Guidance. Online service practice areas. Emergency Remedies in the Family Courts. Family Law Precedents Service. Clarke Hall and Morrison on Children. Family Law Reports. Court of Protection Law Reports. All Books. Court of Protection Practice. Family Law. Lockdown has spurred us into action and will revolutionise the system as we know it.
We ought to be open-minded and recognise that the Luddite days of resistance are behind us. Some civil proceedings may be transformed entirely. Unnecessary assembly at court should be confined to history. We will save time, save money and be better for it. Once the technology improves, and it is about to , there will be questions to answer.
Is this still a sticking plaster? Or is this the new normal? The answers will depend not on what the technology is capable of — but where we choose to draw the line. As I look at my client — a mile, a prison wall, and a microphone away — I try to pinpoint why it feels like there is a barrier to communication.
Is it just the improvised technology? That will improve. I remind myself that GPs hold sensitive appointments by telephone and on the internet.
Court videolinks are not new. So why then, in certain circumstances, does online feel like second best? Our job as courtroom advocates, bewigged and gowned, often takes centre stage. This is the front-of-house business of criminal lawyering. But it is backstage, early in the morning and late in the afternoon, where the most challenging advocacy takes place. In windowless conference rooms and dank cell areas across the country, difficult decisions are made and delicate conversations are held.
Meeting a vulnerable complainant and finding the right words with the right tone. Speaking to a bereaved family at a sentencing hearing with professionalism and care. Being in the same room to negotiate compromises that deliver justice for a victim and a community. Looking a defendant in the eyes and delivering unwelcome advice that cannot be ignored by pressing a button. Watching for voice patterns, breathing rates and unspoken signs of agitation.
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