You know how it is, another set of guidelines on some topic of family law is published, you give them a cursory glance, and file them away. Hopefully, you do commit to memory the fact of their existence, so that you will recall them when you are confronted with that topic months or years later.
And so it was for me with the Guidelines in relation to children giving evidence in family proceedings, which cropped up on Tuesday this week, when I was looking at the Court of Appeal’s judgment in Re B (Child Evidence). Children giving evidence is, in fact, an issue that crops up fairly frequently and, I suspect, will crop up all the more in future, with fewer parents having legal representation and being desperate to put forward evidence to support their case, even if it means involving their children in the proceedings.
To recap, the Guidelines were prepared in 2011, following the case Re W, which concerned care proceedings in which one of the children had made allegations against her stepfather, who wanted her to appear at the fact finding hearing to give oral evidence. After Re W was heard by the Court of Appeal the President of the Family Division requested that a Working Party be set up to consider the whole issue of children giving evidence. The Guidelines were subsequently prepared by the Working Party.
Before the Guidelines were prepared Re W had gone before the Supreme Court, which held that the old law that there was a presumption (or starting point) against children giving evidence no longer applied. Instead, the Supreme Court said, the court’s principal objective when considering whether a child should give evidence should be achieving a fair trial. With that objective in mind, the court had to carry out a balancing exercise between the possible advantages that the child giving evidence may bring in terms of determining the truth and the possible damage done to the child’s welfare by their giving evidence.
The Guidelines begin by setting out the legal considerations to be taken into account when deciding whether a child should give evidence, in the light of the Supreme Court’s ruling. The Guidelines include a list of the specific matters to which the court should have regard, such as the child’s willingness to give evidence, the quality of the existing evidence (i.e. whether further evidence from the child is actually required) and, of course, the child’s maturity and understanding.
The Guidelines then go on to look at the possibility of the child not giving live evidence at a hearing (which obviously is likely to be the most traumatic way of proceeding). This would involve the child being interviewed, probably by a Cafcass officer, and having appropriate questions put to them.
The Guidelines then look at various practical considerations prior to the hearing, once it has been decided that the child should give evidence at that hearing. These include such things as whether a video link should be used, approval by the judge of any questions proposed to be put to the child and timetabling to minimise the child’s time at court. If the child is to give oral evidence at the hearing then certain steps should be taken, such as having them visit the court beforehand to familiarise themselves.
As to the hearing itself, the Guidelines list practical considerations to be taken into account. These are mostly just common sense, such as encouraging the child to let the court know if they want a break, and being vigilant to identify possible miscommunications.
The next section of the Guidelines deals with the examination of children, if the court decides that they should give oral evidence. This is, in fact, already largely covered by the Good practice guidance in managing young witness cases and questioning children, which the Guidelines say should be taken into account. The Guidelines also refer to the judgment of the Court of Appeal in the criminal law case R v Barker, which should also be taken into account. That case called for the advocacy to be adapted ‘to enable the child to give the best evidence of which he or she is capable’. The Guidelines then set out certain ‘rules’ for questioning a child, such as that that the questioning should be at the child’s pace and consistent with their understanding.
Finally, the Guidelines make it clear that the ultimate responsibility for ensuring that the child gives the best possible evidence in order to inform the court’s decision rests with the court:
“ The court should set out its expectations of the advocates and make it clear to the child witness that they can indicate to the court if they feel they are not saying what they want to say or do not understand what is being said to them. The court must be scrupulous in the attention it gives to the case management and control of the questioning process and should be prepared to intervene if the questioning is inappropriate or unnecessary.”
It is one of the features of family law proceedings that much of the evidence produced in court relates to events that occurred behind the closed doors of the family home. Those events will not therefore usually be witnessed by anyone outside of the family, and thus it can be tempting for a parent to want to call their child, who did witness the events, to give evidence to support their case. This, however, is a dangerous path to take, having regard to the possible risks to the child’s welfare. The Guidelines indicate the issues involved and the approach that the courts will take, and should be required reading for any parent considering taking that path.