A 14 year-old girl has won the right to speak on her own behalf in care proceedings relating to herself and her younger sister.
In Re R (Children), social services became involved with the family amidst concerns about their living conditions and reports of domestic violence. Later, the father’s sister alleged that he had sexually abused the two children. The local authority instituted a child protection policy which involved the mother supervising the father with the children. In addition, the children were placed on the child protection register, although they were initially only listed as at risk of neglect. The two children, referred to in the judgement as ‘GR’ and ‘RR’, were removed from the register after a period because the local authority believed the mother was fully implementing the protection plan.
However, social workers again grew concerned last year, when the younger sister began to display “inappropriate sexual knowledge”. The mother admitted that she sometimes left the father alone with the children when out shopping. Despite an ongoing requirement that the father sleep away from the family home, he was discovered alone with the children in May.
It was not until June, however, that further remarks by RR suggesting sexual abuse by the father led to the local authority taking decisive action. Both children were taken into care. RR remains with foster carers, but the older GR has since been allowed to return to her mother under the temporary supervision of the local authority. She has never made any allegations against her father but she did express a wish to take part in the ongoing care proceedings and give evidence in court.
But a Judge at the Family Court in Swansea rejected the application. Oral evidence from GR was not required to reach a “proper determination”. He said:
“I do not think it is necessary for me to form a view as to G’s credibility in order to determine the principal issues.”
An appeal was launched. Lady Justice King referred to a 2010 Supreme Court case concerning the submission of oral evidence by children. In Re W, Lady Justice Hale set out two principle issues for determination in such cases, which she referred to as ‘limbs’. These were a ‘fair and accurate determination of the truth’ and ‘risk of harm to the child’.
In the present case, Lady Justice King concluded that the earlier judge had not given due consideration to the second limb.
She noted that, after deciding oral evidence from GR was not necessary to reach a verdict, “the judge regarded the issue as having been settled and did not thereafter move on to consider the second limb of the test.”
This had been an error, because Lady Justice Hale’s framework “ requires both limbs to be considered; that is because the test is not a simple evaluation of the marginal forensic value of oral evidence of a child witness.”
The full judgement is here.