ORDERS in family proceedings—Witness summons in respect of child

Court of Appeal, Civil Division
Longmore, Smith and Wilson LJJ
19 January 2007

It is undesirable that a child should have to give evidence in care proceedings, and particular justification will be required before that course is taken.

Catherine Nicholes for the child.
Jonathan Cowen for the local authority.
George Pulman QC and Adam Clegg for the mother.
James Tillyard QC and Jacqueline Wehrle for the father.

The parents were married in 1995 in India. The father was resident in England and the mother in India. They had a child, M, in India in 1996. M and her mother remained in India until 2004. In May 2005, concerns arose when the mother made allegations at M’s school that M had been physically abused by the father when drunk. Further allegations of physical and sexual abuse were made at a later date and M herself said that there had been violence in the home. M was placed in foster care.

In June 2006, the mother retracted her allegations against the father, claiming that they had all been false, as had M’s. The local authority did not accept the truth of the mother’s retraction. In the course of care proceedings, the mother, with the father’s support, applied for an order compelling M to give evidence via video-link.

M’s guardian and the authority opposed the application on the ground that it was inappropriate for so young a child to have to give evidence and that, in the particular circumstances, it would be oppressive for M to have to do so.
The judge ruled in favour of the parents. He stated that if children could be questioned in a court setting, without oppressive damage, then normally, if children were of appropriate age, they might be questioned. He considered that M was sufficiently mature to understand the need to tell the truth and to understand the issues about which she would be asked. The guardian appealed.

LADY JUSTICE Smith:

Her Ladyship considered R v B County Council, ex p P [1991] 2 All ER 65, Re P (a minor) (care proceedings: witness summons) [1997] 3 FCR 322 and B v Torbay Council [2006] Fam Law 924.

In her Ladyship’s judgment, the judge had fallen into error in his approach to the exercise of his discretion. He should not have started from the premise that normally a child might be called to give evidence if that could be done without damage or oppression. For that reason, the Court of Appeal had to exercise its discretion afresh in this case.

The correct starting point—in accordance with past Court of Appeal guidance—was that it was undesirable that a child should have to give evidence in care proceedings and that particular justification would be required before that course was taken. There would be some cases in which it would be right to make an order. They would be rare.

In considering whether to make an order, the judge would have to balance the need for the evidence in the circumstances of the case against what he assessed to be the potential for harm to the child. In assessing the need for oral evidence in the context of care proceedings, the judge should take account of the importance of the evidence to the process of his decision about the child’s future. It might be that the child’s future could not be satisfactorily determined without that evidence. In assessing the risk of harm or oppression, the judge should take heed of current research into the effect on children of giving evidence and should not rely only upon his impression of the child, although that would of course be relevant.

Her Ladyship turned to consider how the discretion should be exercised in this case. The first and most important point was that the case was most unusual. M made allegations which were essentially the same as those made by her mother. The mother then said that the allegations were untrue. Nobody knew whether M would now say that they were untrue. For entirely proper reasons, that had not been explored. But that lacuna in the evidence left the judge in an unusual and an extremely difficult position. It was true that there was other evidence from which the truth of the allegations might be assessed. The parents submitted that M’s interview evidence was riddled with inconsistencies and could not be relied on. However, it appeared that M had voluntarily repeated her allegations to a social worker. The judge had an exceptionally difficult task. The judge’s clear view that he really needed the evidence was justified.

Second, the issue to be decided was of great importance for the welfare of M herself. The consequences to her of a wrong decision on the question of what had happened in the past were serious. She could be wrongly deprived of an upbringing by her parents. Alternatively she could be wrongly exposed to physical and moral danger of a serious kind. In her Ladyship’s view the judge was right, in the exceptional circumstances of the case, to give great weight to his need to hear the evidence.

Her Ladyship would accept the judge’s assessment that, despite her young age, M was sufficiently mature to understand the need to tell the truth and to understand the issues about which she would be asked. Much more difficult was the assessment of the potential for damage if she gave evidence. There were two aspects. First, in preparation for the hearing, M would be required to watch at least the material parts of her video interviews.

The second aspect was giving evidence itself. There was a danger that it would cause psychological harm. It followed that the exercise of discretion was a difficult one. Her Ladyship concluded that the judge’s need for the evidence had to outweigh the concerns in respect of the harm that might be done to M.

Lords Justices Wilson and Longmore agreed.