Seen & Now Heard?

dv1754039[1]In Re W the Supreme Court reformulated the approach a family court should take when exercising its discretion to decide whether to order a child to give live evidence in family proceedings. However many questions still remain unanswered,  believes Chris McWatters

 Most barristers would consider it a travesty of justice if they were not allowed to cross-examine a complainant who had made allegations against their client, especially if those unchallenged allegations were believed by a court.


However, this has until now been the norm in one area of family practice – when dealing with children. Before the Supreme Court judgment in Re W (children) (abuse: oral evidence) [2010] UKSC 12, [2010] 1 WLR 701 (“Re W”), the presumption in family proceedings was that it was undesirable for a child to give evidence, and should be rare. The thinking behind this approach was that a child would be likely to be emotionally damaged by giving evidence that might implicate the adults he or she was closest to. The example typically given is of a child victim of sexual abuse being asked to face aggressive challenges from a father or mother—who might well be the abuser in the case—accusing the child of lying.


The new test

In Re W the Supreme Court, with Lady Hale giving the unanimous judgment of the court, has, however, removed the presumption that the need to protect the child’s privacy—in compliance with his rights under art 8 of the European Convention of Human Rights—outweighs the rights of the accused to a fair hearing under art 6. Instead, the ruling gives judges broader discretion in deciding whether a child should give evidence, bringing family cases closer to other areas of the law. It states that there has to be a balancing act between “the advantages [that calling a child as a witness] will bring to the determination of the truth, and the damage it may do to the welfare of this or any other child.” The essential test a judge must apply is “whether justice can be done to all the parties without further questioning of the child.”


The Pigot recommendations

The main piece of research into what damage giving evidence does to a child is the 1989 “Report of the Advisory Group on Video Evidence” – (“the Pigot Report”), and dealing with children in criminal courts. It found that “most children are disturbed to a greater or lesser extent by giving evidence in court”. Commenting on Pigot’s findings 21 years on, Lady Hale noted in Re W that the report attached “particular importance to the psychiatric opinion [that the advisory group] received, which suggests that not only do abused children who testify in court exhibit more signs of disturbed behaviour than those who do not, but that the effects of a court appearance are most severe and prolonged in those who have suffered the worst abuse and those without family support”.

The Pigot Report recommended that a child’s evidence-in-chief should be the video recording of the ABE (Achieving Best Evidence) interview by an ABE-trained police officer. Cross-examination should also, preferably, be videoed in advance.
The recommendations formed the basis for the special measures regime in the Youth Justice and Criminal Evidence Act 1999, although pre-trial videoed cross-examination has not yet been implemented. Evidence-in-chief is the ABE interview and cross-examination takes place over a live video link.


Treatment in the criminal courts

The only statutory test for a criminal court is whether a child is competent to give evidence – in other words, understand questions and answer them comprehensibly. The decision whether to call the child rests with those having parental responsibility and the party who wishes to call the evidence. Competency was the only issue in the recent appeal of R v Barker [2010] EWCA Crim 4, where a four-year-old child was giving evidence about anal rape (see further “Through the eyes of a child” Counsel, March 2010, pp 27-29). In family courts, this might well have been deemed to cause emotional damage.


Re W and child protection

In family proceedings, the procedure differs from that in criminal courts. ABE tapes are available, but there are no provisions for children to be cross-examined via live link.

This reflects the distinction made by Lady Hale in Re W, to the effect that, in crime, the emphasis is purely on establishing the guilt or not of the defendant, whereas in family, the emphasis is more broadly on the welfare of the child. As she put it: “It is one thing for the State to abandon the prospect of punishing a person for his misdeeds. It is another for the State to abandon the children who may need its protection to their fate”.

The judgment in Re W therefore maintains a strong emphasis on protecting the child. It suggests an extensive list of possible factors in considering whether to call the child. These include: the weight of other evidence, the quality of the ABE interview, and whether the accused has particularised his points of cross-examination (or whether it appears he simply intends to use the process as a fishing expedition, forcing the child to go over their story in the hope of teasing out inconsistencies that he can potentially exploit at whatever criminal proceedings might follow a family hearing). The Supreme Court also stressed that the wishes and feelings of the child remained a key factor. A child reluctant to give evidence should rarely, if ever, be compelled to do so, it said.

Re W suggests many safeguards to keep children who are called as witnesses from emotional harm. These include: using live links, as in criminal trials, to shield a child from the hostile environment of the courtroom; recording a cross-examination soon after the initial ABE tape is made; using intermediaries to assist in communication between the child and the questioner and so avoid the child having to answer inappropriate questions; and cross-examination by judges.


Re W: the facts

A 14-year-old girl alleged that she had been sexually abused by her stepfather. She had four younger siblings, who she was living with (who are also the biological children of her stepfather), and whose welfare, like hers, depended on the outcome of the case – ie they might all be placed in care if he was found to have abused her. The stepfather denied the abuse. In the ensuing care proceedings the stepfather applied for the girl to give oral evidence, but his application was refused by the trial judge. That decision was upheld on appeal ([2010] EWCA Civ 57, [2010] 1 FCR 365), and the question of children giving evidence in family proceedings then went to the Supreme Court (who then remitted the issue of whether the child should give evidence back to the trial judge, in light of their new test).

 

The unanswered questions

Nevertheless, several questions remain unanswered by the judgment in Re W.

 One question concerns those potential child witnesses who are reluctant to face cross-examination. One possible reason for such reluctance could be that they are, in fact, lying. The current test says they should not be compelled – yet unless they are called, a respondent will have no way of proving his or her innocence, raising the spectre of a miscarriage of justice.

A second question is whether the judgment is backed up by enough up-to-date research into the effects of giving evidence on children. Re W indicates that the current evidence of risk of harm is substantial. However the most authoritative evidence available of actual psychiatric damage to children when giving evidence comes from the 21-year-old Pigot report, which was made at a time when all children’s evidence was heard without the protective measures of ABE tapes and live links, and they were routinely grilled by aggressive counsel using “Old Bailey-style” cross-examination techniques.

There has been some recent research, “Measuring Up? Evaluating Implementation of Government Commitments to Young Witnesses in Criminal Proceedings”, a set of interviews with children who have given evidence put out in 2009 by the Nuffield Foundation and NSPCC, suggests that, even with today’s protective measures, children still find giving evidence in criminal courts difficult and stressful. The report did not deal with long term results.

The Family Justice Council is currently doing further research into this area, which will be a welcome addition to the current canon.
Separately, some in the family justice system are anxious that stance of the judgment in Re W may be too protective of children. Some practitioners believe that it can be harmful for a child not to give evidence, on the grounds that a child has a right to be heard.

While live evidence from a child will remain rare, as Lady Hale suggests, it will inevitably become less rare as a result of this judgment. As Re W points out, if a child does not give live evidence, then the court will have to attach less weight to his or her evidence, which could lead to damaging consequences, and ultimately to the possibility that a wrong decision about the child’s future might be made. Many will be cheered by the change in family proceedings. Since removing a child from its family home is the most drastic of measures, and removing a child on mistaken grounds is arguably worse for all concerned than a prison sentence, it is vitally important that the court have access to the truth.

Chris McWatters, Garden Court Chambers

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Chris McWatters

Chris practises family and immigration law at Garden Court Chambers. He regularly contributes to Counsel and is a member of the editorial board. Before coming to the Bar, Chris worked as a journalist and TV scriptwriter.

Chris McWatters

Chris practises family and immigration law at Garden Court Chambers. He is a member of the Counsel editorial board. Before coming to the Bar, Chris worked as a journalist and TV scriptwriter.