Supreme Court reconsiders child evidence in family proceedings
Supreme Court hands down judgment in W (Children) [2010] UKSC 12
The Supreme Court has handed down judgment in W (Children). In its judgment the Supreme Court reformulated the approach a family court should take when exercising its discretion to decide whether to order a child to give live evidence in family proceedings. In so doing it removed the presumption or starting point of the current test, which is rarely if ever rebutted, that it is only in the exceptional case that a child should be so called.
At issue in the case is the care of five children. The proceedings began in June 2009 when the eldest child, a 14 year old girl, alleged that her de facto stepfather had seriously sexually abused her. All the children were taken into foster care and the four younger children are having supervised contact with both parents. The father has since been charged with 13 criminal offences and is currently on bail awaiting trial.
In the family proceedings the parties originally agreed that there would be a fact finding hearing in which the 14 year old girl would give evidence via a video link. The judge however asked for further argument on whether she should do so. The local authority, having had time to consider the material received from the police, decided that they no longer wished to call the girl as a witness. In November 2009 the judge decided to refuse the father’s application for her to be called. Instead, she would rely on the other evidence, including a video-recorded interview with the child.
The Court of Appeal dismissed the father’s appeal (see [2010] EWCA Civ 57). They did, however, express some concern about the test laid down in previous decisions of that court and suggested that the matter might be considered by the Family Justice Council. The father appealed to the Supreme Court.
The Supreme Court unanimously allowed the appeal and remitted the question of whether the child should give evidence, and if so in what way, to Her Honour Judge Marshall to be determined at the fact finding hearing in light of the principles set down in the judgment.