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Supreme Court refuses permission to appeal decisions concerning children’s participation in proceedings

Permission refused in Re S (Children) 2016 EWCA Civ 83 and F (Children) [2016] EWCA Civ 546

The Supreme Court has refused permission to appeal judgments of the Court of Appeal in two very cases concerning the participation of children in proceedings.

In Re S (Children) [2016] EWCA Civ 83 the father had appealed against case management decisions in care proceedings, including that K, a 13-year-old child who made allegations of sexual abuse, should not give oral evidence at a fact finding hearing. The appeal dismissed was on this issue but there was a detailed dissent from Gloster LJ.

As to the decision for K not to give oral evidence, in the Court of Appeal Black LJ (with whose judgment Vos LJ agreed) thought that in this case considerable weight had to be given to the fact that those who had the best chance to evaluate the evidence did not appear to have thought there to be any intermediate option which would enable K's evidence to be effectively pursued further with her. Gloster LJ gave a robust dissenting judgment, stating that the case left her with a deep sense of unease, both in relation to the decision that K was not to give oral evidence, and the fact finding judgment. She considered that the decision that K should not be called as a witness failed in any adequate way to weigh up the two relevant considerations set out in Re W (Children) [2010] UKSC 12, namely the advantages that a child giving evidence will bring to the determination of the truth, and the damage it might do to the welfare of the child witness.

For the Court of Appeal judgment and summary by Victoria Flowers of Field Court, please click here.

In F (Children) [2016] EWCA Civ 546 the mother and eldest child (L) appealed against an order that she and her two siblings, children of Hungarian parents, should be returned to Hungary upon their father's application under the Hague Convention. The President of the Family Division, Sir James Munby, dismissing the appeal, considered the question of whether L was given a proper opportunity to participate in the proceedings at first instance. Making clear that nothing ultimately turned on this, the relevant authorities and guidance were reiterated.

Munby P concluded there had been a "sea-change" in attitudes and that proper adherence to the Re W principles will mean more children giving evidence in family proceedings. Given the guidance of Re KP [2014] EWCA Civ 554 (that caution should be exercised to ensure that meetings between the judge and child are not to obtain evidence) it is likely that more cases will feature the child giving evidence, whether or not they are joined as a party.

The Supreme Court, refusing permission to appeal, stated:

"We entirely understand the applicant's frustration that she did not have an opportunity to put her views in person to the trial judge but she was able to play a full part in the Court of Appeal proceedings and was refused permission to appeal against the refusal of party status, so it is difficult for this Court to see what we could do for her if we did hear her appeal."

For the Court of Appeal judgment and summary by Hannah Gomersall of Coram Chambers, please click here.