Re W: New rule, similar result?

The Supreme Court decision in Re W (Children) [2010] UKSC 12 is one of those cases that is likely to get family lawyers jumping up and down with excitement, but is it likely to have much practical effect?

The Facts: Re W was an appeal from the Court of Appeal's decision to dismiss the father's appeal against the decision of the lower court to refuse the father's application for the eldest child to be called as a witness. The eldest child, the father's step-child, had made allegations of sexual abuse against him. That child, and four younger children of whom he is the natural father, were taken into foster care and the father has since been charged with thirteen criminal offences, and is currently on bail awaiting trial.

The Law: The current approach to deciding whether a child should give evidence was stated by Smith LJ in LM v Medway Council, RM and YM [2007] EWCA Civ 9 at paragraph 44:
“The correct starting point . . . is that it is undesirable that a child should have to give evidence in care proceedings and that particular justification will be required before that course is taken. There will be some cases in which it will be right to make an order. In my view they will be rare.”
The Court of Appeal had expressed some concern at this approach, and suggested that the matter might be considered by the Family Justice Council. However, the Supreme Court did not consider that the matter could be left. Lady Hale (at para 22):
"The existing law erects a presumption against a child giving evidence which requires to be rebutted by anyone seeking to put questions to the child. That cannot be reconciled with the approach of the European Court of Human Rights, which always aims to strike a fair balance between competing Convention rights. Article 6 requires that the proceedings overall be fair and this normally entails an opportunity to challenge the evidence presented by the other side. But even in criminal proceedings account must be taken of the article 8 rights of the perceived victim: see SN v Sweden, App no 34209/96, 2 July 2002. Striking that balance in care proceedings may well mean that the child should not be called to give evidence in the great majority of cases, but that is a result and not a presumption or even a starting point."
Accordingly, the initial starting-point or presumption has been done away with, and now the essential test is simply whether justice can be done to all the parties without further questioning of the child, with Lady Hale predicting that "the consequence of the balancing exercise will usually be that the additional benefits to the court’s task in calling the child do not outweigh the additional harm that it will do to the child" (para 30). Thus, it is envisaged that calling a child as a witness is still likely to be the exception, rather than the norm.

In weighing the advantages that calling the child to give evidence may bring to the fair and accurate determination of the case, the court will have to look at several factors, including the issues it has to decide, the quality of evidence it has, the age and maturity of the child and the length of time since the events in question (paras 25 and 26).

Note that Lady Hale specifically stated that, in principle, the same approach should be used in private family proceedings, although she recognised that here, rather than the 'neutral and expert' evidence of a local authority, the allegations of abuse could come from "a parent who is seeking to gain an advantage in the battle against the other parent", and the court would therefore have "to take very careful precautions to ensure that the child is not harmed by this" (para 29).

The Decision: The appeal was allowed and the question of whether the child should give evidence was remitted to the judge for her to determine in the light of this judgment, at a fact finding hearing scheduled for next Monday, the 8th March. It will be interesting to find out if her decision will be any different.