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Seen and heard? Children as witnesses in family proceedings

Damian Stuart, Barrister, FOURTEEN, re-visits Baroness Hale’s seminal speech in Re W (Children) (Abuse: Oral Evidence) in the light of Lord Justice McFarlane’s recent judgment in Re E (A Child)

Damian Stuart, barrister, FOURTEEN


Damian Stuart
, barrister, FOURTEEN

Lord Justice McFarlane is a loyal fellow. It could not be said that he would ever seek to "slap down" (to use that favourite tabloid phrase) their lordships in the Supreme Court. And yet, so very subtly, he seems to have done just that.

Whether a child should give evidence or not has long since been a vexed question in the family courts, much to the quiet amusement of our friends in the Crown Court. Some naïve fellows might have been led to think that the question had been definitively answered by Baroness Hale in her seminal speech in Re W (Children) (Abuse: Oral Evidence) [2010] UKSC 12, [2010] 1 FLR 1485. But anyone who had the temerity to think that that might be that clearly hadn't paid attention in their first English Legal System lecture (ahh yes, the curse of Fresher's week) where we are told that "that is never that".

Before Re W, views swayed back and forth: a presumption in favour of a child giving evidence to one against. Baroness Hale told us that there was no presumption, either way. A fresh piece of paper is needed, a line down the middle, the pros on one side and the cons on the other.

What she actually said was that a rebuttable presumption against a child giving evidence "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 the 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."

This led to the two limb test:

This, in true legal fashion, spawned various sub-limbs. When looking at the advantages it would bring to the determination of the truth, she said we must consider:

And in terms of harm we should look at:

At paragraph 27, Lady Hale held that:

"It does not assume that the most reliable account of any incident is one made from recollection months or years later in the stressful conditions of a courtroom. Nor does it assume that an 'Old Bailey style' cross examination is the best way of testing that evidence..... A family court would have to be astute both to protect the child from the harmful and destructive effects of questioning and also to evaluate the answers in the light of the child's stage of development."

Her ladyship continued at paragraph 28 that:

"The important thing is that the questions which challenge the child's account are fairly put to the child so that she can answer them, not that counsel should be able to question her directly. One possibility is an early videoed cross examination as proposed by Pigot [Report of the Advisory Group on Video Evidence (1989)]. Another is cross examination via video link. But another is putting the required questions to her through an intermediary. This could be the court itself, as would be common in continental Europe."

Of course, there are a whole range of safeguards that can be put in place to protect a child who is to give evidence, such as the use of video links, so that the child does not have to face a formal court setting and does not have to come face to face with the person against whom they are making an allegation. It is important that we look at those safeguards when determining the answers to either of the two limbs and ask ourselves how we can (if I may borrow a phrase) achieve the best evidence; and how we may reduce the harm to the child at every stage of the process.

In studies conducted in 2001, 2004, 2007 and 2009 by Plotnikoff and Woolfson a total of 394 young witnesses in criminal proceedings were interviewed. Over half said that they did not understand some of the questions that they were asked – and these were just those who had identified that they had not understood one or more of the questions asked of them. Of course, if that is so, then it places a huge question mark over the whole judicial process.

About half of socio-economically disadvantaged children have speech and language skills that are significantly lower than other children of a similar age (Department of Children Schools and Families 2008); 10% of all children have a recognised mental disorder and 1% have autism. Consequently, a significant number of children have communication difficulties. This may go some way to understanding the difficulties that some children have in understanding cross examination. But we lawyers are also to blame. After all, children find it difficult when lawyers use legal language and complicated words.

Judges are encouraged to explain to children that they should say if they don't understand any question (Equal Treatment Bench Book 2009). However, more than 50% of children do not tell the court when they have had difficulties (Spence and Lamb).  The Achieving Best Evidence in Criminal Proceedings: Guidance on Interviewing Victims and Witnesses and Guidance on Using Special Measures (2011) identified that 5% of young witnesses suggested that lawyers were sarcastic, rude, aggressive or cross. Terms used included "bullying" and "badgering". Therefore, the court has to be particularly careful in this regard both in respect of the hearing itself and the safeguards put in place.

Questions that violate good practice principles include compounded questions, those requiring an understanding of complex concepts, especially time; figures of speech which could be interpreted literally especially by those with a learning difficulty; questions that are repetitive or which jump around in time. How many times have we heard questions such as: "You told the social worker that you bunked off school that day, did you not?" A wholly inappropriate question given the combination of a positive and a negative element to it.

Zajac (2009) said that children are particularly susceptible to questions which suggest an answer, especially where the question is re-enforced with physical cues.

In January 2012, The Judicial College published guidance for such cases. This advises judges to lay down "ground rules" as to how the examination of child witnesses should be conducted including:

(a) Adapt questioning to the child's stage of development;

(b) Ask short, simple questions one at a time;

(c) Follow a logical sequence;

(d) Speak slowly and allow the child enough time to answer the questions;

(e) Avoid tag questions;

(f) Avoid allegations of misconduct unless there is good reason.

It is commonplace now in criminal courts for a witness intermediary to be instructed to assist the child and the court. This practice took time to filter across to the family courts. Plotnikoff and Woolfson described witness intermediaries as being highly qualified communication specialists who may be involved from the initial investigation up to and including the trial. They can produce a written report which is used by the court and counsel to make necessary decisions about the special measures to be used at the trial and to inform judicial rules as to the questioning of the child. They may appear at the trial (sitting with the child) to monitor the questions, and to advise as to any problems that arise where such problems come from the witness's communication problems. However, it is also important for the child to have support after they have given evidence and this is something that, clearly, local authorities have to give early thought to.

In Western Australia, the norm is for there to be an ABE-style interview followed by evidence being given either via a video-link or it being pre-recorded. The Children's Witness Service will advise the judge and counsel of relevant factors including the child's special needs and family circumstances. Under the Evidence Act 1906 (Western Australia) (Section 106I), the evidence of a witness (including cross examination and re-examination) can be given through a pre-recorded video. Under Section 106K, the judge can determine who is to be present and what other special measures should be put in place.

Guidelines given to counsel in Western Australia (which are similar to those of the Judicial College) include:

(a) Counsel should address the child by the name that they prefer. This is usually their first name;

(b) Questions should be short and simple;

(c) The witness should be given adequate time to answer the question;

(d) An answer should not be interrupted;

(e) The tone of questions should not be intimidating, annoying, insulting or sarcastic;

(f) Legalese should be avoided and vocabulary should be age appropriate;

(g) A young child should not be accused of lying – "incorrect" or "wrong" are preferable;

(h) Counsel should avoid repetition or mixing subjects;

(i) In cases where the witness is clearly incapable of answering the questions, counsel should consider varying the approach or abandoning the cross examination.

Well, so much for the theory. In practice, theory is all too often something dreamt up in the Supreme Court or the Royal Courts of Justice, but which translates poorly to the Family Court sitting at Somewhere-on-Sea where such decisions can go unheeded.

That was very clearly the conclusion of McFarlane LJ in the recent case of Re E (A Child) [2016] EWCA Civ 473 where he bemoaned the failure of courts the length and breadth of the Kingdom to properly apply Re W. "This case should serve as a firm reminder to the judiciary and to the profession of the need to engage fully with all that is required by Re W and the Guidelines [of the President's working group on children and other vulnerable witnesses]" said he.

He went on. Not only have we all routinely ignored Baroness Hale, but we are softies in the Family Court. McFarlane LJ added:

"As is well known, children, even children of a very young age, who have made allegations of abuse which are subsequently the subject of criminal proceedings, are required to give live evidence within the criminal process. It is understood that some 40,000 do so during the course of each year. The child will typically be protected from full exposure to the court room by the use of special measures, for example, answering questions over a live video link. Conversely, for many years the practice and culture in family proceedings was that such children, even if aged in their late teens, would never be required to give live evidence in the family court."

"Told you so" chimed our criminal cousins.

But whilst he urged us to engage the factors raised by Baroness Hale "together with any other factors that are relevant to the particular child or the individual case, before coming to a reasoned and considered conclusion on the issue",  he reminded us that:

"Part of any consideration of the overall welfare of a child must be that decisions as to his or her future, or the future of other children, are based, so far as is possible, upon a true understanding of important past events. Whilst the process of giving oral evidence in relation to allegations of past harmful experiences will almost always be an unwelcome one for any child, and for some that process itself may be positively harmful, those negative factors, to which full and proper weight should be given, are but one half of the balancing equation."

McFarlane LJ was quiet about the distinction drawn by Baroness Hale between criminal and family proceedings which she said was partly because of the different rules in respect of hearsay evidence and partly because a judge in family proceedings receives a significant amount of written evidence at the outset of a hearing, which a jury in a criminal trial does not. Indeed, he subtly urged us to be more like our criminal cousins.

But what about Baroness Hale's opinion that the view of the Guardian should be taken into consideration. McFarlane LJ was having none of that. "Guardians always say no, so what is the point of consulting them?" – he didn't quite say1.

So is that the definitive and final answer to a question never more to be posed? Of course not, you've forgotten the first rule again.

[1] He actually said (at para 61): "This court understands that it is, however, common-place for guardians to advise that the child should not be called to give evidence on the basis that they will or may suffer emotional harm as a result of doing so. Where such advice is based upon the consideration of harm alone, it is unlikely to be of great assistance to the court which is required to consider not only 'harm' but also the other side of the balance described in the Guidelines, namely the possible advantages that the child's testimony will bring to the determination of truth."