The different underlying principles of family and criminal law
The underlying reasons for the difference in approach between the family and the criminal courts are the principles by which criminal and family courts work: Section 1 of the Children Act 1989 states that “the child’s welfare shall be the court’s paramount consideration”. That principle applies to all proceedings under the Act. The other principal statutes and rules of court in family proceedings have similar provisions. The overriding objective in the Criminal Procedure Rules is that “cases be dealt with justly”.
The new Guidelines (see below) say that since Re W, in deciding whether a child should give evidence, “the court’s principal objective should be achieving a fair trial” but with that objective in mind, the court should carry out a balancing exercise between the advantages that the child being called will bring to the determination of truth balanced against the possible harm to the child’s welfare from giving evidence.
Special Measures in criminal proceedings
In criminal proceedings there is a statutory framework for special measures, mostly contained in the Youth Justice and Criminal Evidence Act 1999. Some of these - screens, video links, ABE interviews and communication aids - are used in family courts without a statutory framework. There is no reason in principle why evidence-in-chief and cross-examination could not be pre-recorded. The Guidelines envisage this as a possibility. They explicitly recommend the consideration of the use of a registered intermediary or other communication specialist in cases of ‘live’ cross examination although there are no provisions yet for funding this. No new court rules or regulations would be required for this to happen as there is no rule against the admission of hearsay in family proceedings. As Lord Justice Hughes said in his Hershman-Levy Memorial Lecture: “You need the best evidence – always providing that you can properly have it without doing more harm than good”.
In the absence of a statutory scheme for the evidence of children in family proceedings the new Guidelines are the principal reference point. The Guidelines cover:
- Legal considerations
- Alternatives to the child giving live evidence at a hearing
- Practical considerations pre-hearing
- Practical considerations at the hearing
- Examination of children.
The legal considerations involve the balancing exercise set out in Re W, having regard to 22 factors. The reader should refer to the Guidelines themselves for the full list, but they can be summarised as:
- The importance of the child’s evidence to the outcome of the case.
- The seriousness of the issues.
- The child’s maturity.
- The views of the child and the guardian and where there are parallel criminal proceedings, the views of the CPS/police.
- Any risk of harm to the child.
Alternatives to giving live evidence at the hearing
The Guidelines propose specific consideration be given to the child being questioned “on an occasion distinct from the substantive hearing so as to avoid oral examination...at the earliest opportunity and in any event before that substantive hearing”. This is in effect what the criminal law has referred to as ‘full Pigot’ after the report in December 1989 which recommended that children complete their (videoed) evidence before the trial. Section 28 of the 1999 Act attempts to provide for that but has not yet been brought into force.
Examining and cross-examining the child on a separate occasion before the trial is a new proposal and one which, at first at least, will need to be approached with considerable caution. The Guidelines do say that there is a need for the ground rules to be set down beforehand following discussions involving the judge, the lawyers and, if applicable, the intermediary. It is suggested that “advance judicial approval of any questions proposed to be put to the child” will be appropriate, and those asking the questions will need to be clear about the scope for asking follow up questions which have not previously received judicial approval – it is not hard to imagine a situation where such follow up questions are essential to establishing the truth. If such additional questions are permitted then they will have to be limited somehow, as this is examination and cross-examination without a judge.
There are a number of potential pitfalls here. Police officers who conduct Achieving Best Evidence (ABE) interviews are trained for the purpose. As those who view such interviews know, they can vary in quality even after that training. Barristers and solicitors have not been trained in how to question children, but the Guidelines contain guidance on how to do so, a long checklist and reference to appropriate reports on the subject. Are the recordings of such interviews to be made available in criminal proceedings (an issue that could easily spark off satellite litigation)? What is the likelihood that a child will be put through this further interview process, only to be required later on to give evidence at court?
Practical considerations before a child gives evidence in court...
This part of the Guidelines deals with the directions to be given by the court before the hearing at which it has been decided that the child will be giving evidence. The Guidelines suggest that very detailed preparation will be appropriate, including:
- Advance judicial approval of questions to be put to the child.
- Ground rules for the examination.
- Minimising the length of the examination by listing agreed matters beforehand.
- Evidence (which may be from an expert) as to frequency and length of breaks and appropriate language.
- What special measures are appropriate, including any intermediary or other supporter.
- A child witness will need to see beforehand the ABE interview and any other evidence to refresh his or her memory.
- Arrangements as to where the child will be to keep him or her safe and separate from any of the parties will also be needed.
Meanwhile the court still has the duty to balance the value of the child’s evidence to the proceedings against the harm that giving the evidence may do to the child. It must be possible that following the full consideration of the arrangements that will be needed, the court’s view about that balance will change.
... and at the hearing
The Guidelines provide a list of practical matters - other than the examination of the child - that will need attention: how the judge and advocates should meet the child; ensuring that there is no misunderstanding with the child; checking that the child understands how the video-link works and who can see whom; and the child’s access to relevant papers.
Examination of children
This section refers to the Good Practice Guidance in questioning children which has been developed over a number of years for use in criminal proceedings. It is available at www.nspcc.org.uk/Inform/research/findings/measuring-up-guidance-wdf66581.pdf.
The section goes on to list 20 elements of cross-examination aimed at allowing a child to give the best evidence of which he or she is capable. A key element is simplicity: simplicity of language, of ideas (one at a time), of sentence structure. A second element is sympathy not antagonism: check understanding, do not use leading questions, take it slowly and carefully. In the long judgment in R v Barker  EWCA Crim 4 (a case study in a child’s evidence), the Court of Appeal pointed out that counsel’s cross-examination of a child had misunderstood the child’s answer because of taking matters too quickly: counsel had not appreciated that the child was answering an earlier question.
The Guidelines have been summarised here, but they are only 5 pages long and anyone thinking of asking the court to call a child to give evidence in family proceedings will want to consult them. It is too early to tell whether the Guidelines will help courts - and practitioners - to feel that the balance of harms in a case does require a child to give evidence. It is too early to know whether or not it will become less rare for children to give evidence in family proceedings, and so counsel will become more familiar with handling children’s evidence. What is clear is that this is unfamiliar territory which will need to be approached with a good deal of care.
Francis Wilkinson, Field Court Chambers