The principles which should guide the exercise of the court’s discretion in deciding whether to order a child to attend to give evidence in family proceedings.
The starting point of English criminal and civil procedure had historically been that facts must be proved by oral evidence given on oath before the court which can then be tested by cross-examination. Hearsay evidence was mostly inadmissible. But wardship proceedings in the High Court were an exception. The High Court was exercising a protective parental jurisdiction over its wards in which their welfare and not the rights of the parties was the paramount consideration section 96 of the Children Act 1989. Subsections (1) and (2) allow a child to give unsworn evidence in any civil proceedings, even if he does not understand the nature of an oath, provided that he understands that it is his duty to tell the truth and has sufficient understanding to justify his evidence being heard. Subsections (3) to (5) provide for the Lord Chancellor (with the concurrence of the Lord Chief Justice) to make provision by order for the admissibility in civil proceedings of hearsay evidence relating to the upbringing, maintenance or welfare of a child. The Children (Admissibility of Hearsay Evidence) Order 1993, SI 1993/621, simply provides that such evidence shall be admissible “notwithstanding any rule of law relating to hearsay”.
The Youth Justice and Criminal Evidence Act 1999 provides for a variety of special measures to assist children (and other vulnerable witnesses) to give evidence in criminal cases. These include screens, live television links, using video-recordings as evidence-in-chief, providing aids to communication and examining the witness through an approved intermediary. The 1999 Act also allows witnesses of any age to give unsworn evidence in criminal proceedings unless it appears to the court that they are unable to understand the questions put or to give intelligible answers. On top of these measures designed to improve the ways in which the evidence of these witnesses is put before the court, the Criminal Justice Act 2003 even allow for hearsay evidence to be given in criminal trials in a much wider set of circumstances than used to be the case. Family proceedings are typically very different from criminal proceedings. There is often a mass of documentary evidence, much of it hearsay, from which a picture can be built up or inferences drawn. A child may reveal what has happened to her in many different ways. Video-recordings of “Achieving Best Evidence” (ABE) interviews are routinely used in care proceedings if they are available. The near-contemporaneous account, given in response to open-ended questioning, in relaxed and comfortable surroundings, is considered inherently more likely to be reliable than an account elicited by formal questioning in the stressful surroundings of a court room months if not years after the event. Unlike criminal proceedings, however, it is “rare” for the child to be called for cross-examination in family proceedings.
In this case, the parties had agreed that there should be a fact finding hearing in relation to the allegations of sexual abuse made by Charlotte, at which she would give live evidence over a video link. The judge, however, asked for further argument on the matter. The local authority, having by then had time to consider the material received from the police, decided that they no longer wished to call Charlotte as a witness but to rely upon her ABE interview. The father however applied for her to be called. The judge refused the application. The Court of Appeal dismissed the father’s appeal. Court of Appeal adhered to the practice as laid down in the previous decisions of that court. There is no problem with the admissibility of hearsay evidence. The problem is whether the current practice of rarely calling children to give live evidence even when they could be called can be reconciled with the Convention rights or even with the elementary principles of justice.
The local authority argued that the whole purpose of care proceedings is to protect the interests of children. It does not make sense to set up a process to protect them and then for the process itself to traumatise them by making them give evidence. This does, of course, depend upon the view that giving evidence is indeed harmful to children It might well be possible to do far more in family proceedings to make the process of giving evidence less traumatic for children. Care proceedings are said to be inquisitorial. The parties are not permitted to “keep their powder dry” as they are for the full scale battle before the jury in criminal cases. They have to disclose what their answers are to any allegations made. They are compellable witnesses. If the child is ABE interviewed and they wish to put questions to her, the facilities could in theory be made available for them to do this in a further video-recorded session soon afterwards.
It is, of course, not unknown for children to make false allegations of abuse. But it is also not unknown, indeed it is believed to be more common, for children to conceal or deny the abuse which is happening to them. They may have been “groomed” to believe it normal and natural. They may have been threatened with dire consequences if they tell the secret. They may be perfectly capable of working out for themselves that making a complaint will lead to pain and distress for all concerned and probably to the break up of the whole family. These are powerful deterrents to coming forward or persisting in complaints. It is as much for this reason as for any other that the family justice system has sought to minimise the deterrent effect of its own processes. Were requests for children to give evidence to become routine, the uncertainties which this would generate would add to the deterrent effect both in individual cases and in general.
The existing law erects a presumption against a child giving evidence which requires to be rebutted by anyone seeking to put questions to the child. That cannot be reconciled with the approach of the European Court of Human Rights, which always aims to strike a fair balance between competing 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. But even in criminal proceedings account must be taken of the article 8 rights of the perceived victim. 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. When the court is considering whether a particular child should be called as a witness, the court will have to weigh two considerations: the advantages that that will bring to the determination of the truth and the damage it may do to the welfare of this or any other child. A fair trial is a trial which is fair in the light of the issues which have to be decided.
In weighing the advantages that calling the child to give evidence may bring to the fair and accurate determination of the case, the court will have to look at several factors. One will be the issues it has to decide in order properly to determine the case. Sometimes it may be possible to decide the case without making findings on particular allegations. Another will be the quality of the evidence it already has. Sometimes there may be enough evidence to make the findings needed whether or not the child is cross-examined. Sometimes there will be nothing useful to be gained from the child’s oral evidence. The case is built upon a web of behaviour, drawings, stray remarks, injuries and the like, and not upon concrete allegations voiced by the child. The quality of any ABE interview will also be an important factor, as will be the nature of any challenge which the party may wish to make. The court is unlikely to be helped by generalized accusations of lying, or by a fishing expedition in which the child is taken slowly through the story yet again in the hope that something will turn up, or by a crossexamination which is designed to intimidate the child and pave the way for accusations of inconsistency in a future criminal trial. On the other hand, focused questions which put forward a different explanation for certain events may help the court to do justice between the parties. Also relevant will be the age and maturity of the child and the length of time since the events in question, for these will have a bearing on whether an account now can be as reliable as a near-contemporaneous account, especially if given in a well-conducted ABE interview.
The age and maturity of the child, along with the length of time since the events in question, will also be relevant to the second part of the inquiry, which is the risk of harm to the child. Further specific factors may be the support which the child has from family or other sources, or the lack of it, the child’s own wishes and feelings about giving evidence, and the views of the child’s guardian and, where appropriate, those with parental responsibility. An unwilling child should rarely, if ever, be obliged to give evidence. The risk of further delay to the proceedings is also a factor: there is a general principle that delay in determining any question about a child’s upbringing is likely to prejudice his welfare: Children Act 1989, s 1( 2). There may also be specific risks of harm to this particular child. Where there are parallel criminal proceedings, the likelihood of the child having to give evidence twice may increase the risk of harm. The parent may be seeking to put his child through this ordeal in order to strengthen his hand in the criminal proceedings rather than to enable the family court to get at the truth. On the other hand, as the family court has to give less weight to the evidence of a child because she has not been called, then that may be damaging too. However, the court is entitled to have regard to the general evidence of the harm which giving evidence may do to children, as well as to any features which are particular to the child and the case. That risk of harm is an ever-present feature to which, on the present evidence, the court must give great weight. The risk, and therefore the weight, may vary from case to case, but the court must always take it into account and does not need expert evidence in order to do so. But on both sides of the equation, the court must factor in what steps can be taken to improve the quality of the child’s evidence and at the same time to decrease the risk of harm to the child. These two aims are not in opposition to one another. The whole premise of Achieving Best Evidence and the special measures in criminal cases is that this will improve rather than diminish the quality of the evidence to the court. 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.
The Supreme Court commended the care with which the judge approached the issue in the present case. She considered the factors which the Supreme Court had outlined above most conscientiously. But she approached them, as she was required to do on the authorities as they stood, from the starting point that it was only in exceptional circumstances that a child should be required to give evidence. But the Court was doubtful whether she would have reached the same conclusion had she approached them without that starting point, although she might well have done so. Since all the material was not before the Supreme Court, it remitted the question to be determined by the judge in the light of this judgment