*/
Child and Youth Justice
There is no longer a presumption against children giving evidence in today’s family courts. Francis Wilkinson examines the recent Family Justice Council guidelines.
“Guidelines in relation to children giving evidence in family proceedings” was issued by the Family Justice Council in December 2011. A Working Party was set up following the Court of Appeal’s recommendation in Re W [2009] EWCA Civ 644, the case which later went to the Supreme Court [2010] UKSC 12. In his Foreword, Sir Nicholas Wall, President of the Family Division, writes that following the Supreme Court decision, ‘there was no longer a presumption or even a starting point against children giving evidence in such cases’. However, the occasions on which children give evidence of abuse they have suffered continue to be very rare. In contrast, according to the Crown Prosecution Service, 48,000 children were called to give evidence in criminal proceedings in 2008-09. That had risen from 30,000 in 2006-07. Why is that?
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”.
Guidelines
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
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:
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:
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 [2010] 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.
Summary
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
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”.
Guidelines
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
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:
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:
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 [2010] 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.
Summary
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
Child and Youth Justice
There is no longer a presumption against children giving evidence in today’s family courts. Francis Wilkinson examines the recent Family Justice Council guidelines.
“Guidelines in relation to children giving evidence in family proceedings” was issued by the Family Justice Council in December 2011. A Working Party was set up following the Court of Appeal’s recommendation in Re W [2009] EWCA Civ 644, the case which later went to the Supreme Court [2010] UKSC 12. In his Foreword, Sir Nicholas Wall, President of the Family Division, writes that following the Supreme Court decision, ‘there was no longer a presumption or even a starting point against children giving evidence in such cases’. However, the occasions on which children give evidence of abuse they have suffered continue to be very rare. In contrast, according to the Crown Prosecution Service, 48,000 children were called to give evidence in criminal proceedings in 2008-09. That had risen from 30,000 in 2006-07. Why is that?
Sam Townend KC explains the Bar Council’s efforts towards ensuring a bright future for the profession
Giovanni D’Avola explores the issue of over-citation of unreported cases and the ‘added value’ elements of a law report
Louise Crush explores the key points and opportunities for tax efficiency
Westgate Wealth Management Ltd is a Partner Practice of FTSE 100 company St. James’s Place – one of the top UK Wealth Management firms. We offer a holistic service of distinct quality, integrity, and excellence with the aim to build a professional and valuable relationship with our clients, helping to provide them with security now, prosperity in the future and the highest standard of service in all of our dealings.
Is now the time to review your financial position, having reached a career milestone? asks Louise Crush
If you were to host a dinner party with 10 guests, and you asked them to explain what financial planning is and how it differs to financial advice, you’d receive 10 different answers. The variety of answers highlights the ongoing need to clarify and promote the value of financial planning.
Most of us like to think we would risk our career in order to meet our ethical obligations, so why have so many lawyers failed to hold the line? asks Flora Page
If your current practice environment is bringing you down, seek a new one. However daunting the change, it will be worth it, says Anon Barrister
Creating advocacy opportunities for juniors is now the expectation but not always easy to put into effect. Tom Mitcheson KC distils developing best practice from the Patents Court initiative already bearing fruit
Sam Townend KC explains the Bar Council’s efforts towards ensuring a bright future for the profession
The long-running fee-paid judicial pensions saga continues. The current cut-off date for giving notice of election to join FPJPS is 31 March 2024, and that date now gives rise to a serious problem, warns HH John Platt
