Children often give evidence in criminal proceedings but rarely do in family proceedings. Can this divergence be justified especially where, as in Re W (Children) [2010] UKSC 12, [2010] 1 W.L.R. 701 there are parallel proceedings based on essentially the same allegations?

A 14-year-old girl, Charlotte, made allegations of serious sexual abuse by her stepfather. Care proceedings were brought in relation to her and four younger half-siblings. The man was on bail charged with 13 criminal offences. The parties in the care proceedings agreed that Charlotte should give live evidence by video link at the fact-finding hearing. The local authority then changed its mind and was content to rely on her ABE (Achieving Best Evidence) interview, namely a video-interview prepared by the police with a view to its use in criminal proceedings. The stepfather however applied for her to be called. The judge and Court of Appeal refused, relying on established law which had erected a presumption against children giving evidence in family proceedings (see particularly R v. B County Council, ex parte P [1991] 1 W.L.R. 221; Re P (Witness Summons) [1997] 2 F.L.R. 447 and, most recently, LM v. Medway Council, RM and YM [2007] EWCA Civ 9).

The Supreme Court unanimously held that this presumption cannot be reconciled with the requirement to strike a fair balance between convention rights under the ECHR. As before the court will need to weigh the advantages to determination of the truth which hearing the child might bring, against the potential damage to the child's welfare by having to give evidence in person; something highlighted in the context of criminal proceedings by the Pigot Committee (Report of the Advisory Group on Video Evidence, 1989). The Supreme Court regretted that it lacked the benefit of up-to-date inter-disciplinary opinion on the effects on children of giving evidence, though a group has now been set up under the chairmanship of Thorpe L.J. to consider this. The key difference which this decision brings about is that there will no longer be an initial assumption in family proceedings that children ought not to give evidence, just as they are no longer presumed to be incompetent to do so (as to which see R v. Barker [2010] EWCA Crim 4, [2010] C.L.J. 460).

This decision is a welcome rejection of stereotypical attitudes towards children in the legal system. The rationale for the previous distinction between criminal and family proceedings was far from convincing. This was essentially that, since the very object of family proceedings is to protect children, it does not make sense for the process itself to traumatise them. This fails to distinguish clearly enough between public and private children cases or to recognise the closeness of the connection between care and criminal proceedings. The compulsory removal of children into care will for many parents be as draconian as criminal sanctions. The very existence of a statutory threshold, hinging on significant harm to the child, indicates that care proceedings are not just about the child's welfare but also, like criminal proceedings, about the attribution of responsibility for harm albeit not necessarily to an identified individual. It is in the interests both of those accused of causing harm and, importantly, the child, that the best available evidence should be before the court. The identification or exoneration of a potential perpetrator has huge importance not just at the point of the proceedings but far into the future where, for example, the question may be whether a parent should be allowed ongoing contact with the child or indeed any child.

A key question will be whether calling the child will in fact improve the overall quality of the evidence before the court. Relevant factors identified by Lady Hale include the nature of the issues to be determined; the quality of the other evidence the court has, especially the ABE interview; the nature of any challenge a party may wish to make; the age and maturity of the child; and the length of time since the events in question. These last two factors are also relevant to the assessment of the risk to the child in giving evidence, along with family support and the child's own wishes and, in the Court's view, “an unwilling child should rarely, if ever, be obliged to give evidence”. Lady Hale also emphasised that the issue is not simply whether a child should give evidence but also how this might be done. This will require the court to seek to maximise the advantages while minimising the harm. There might, for example, be cross-examination by an earlier video (proposed by Pigot but not yet introduced in criminal proceedings), cross-examination by video link or putting questions through an intermediary.

How far should these principles be applied to private law family proceedings, concerned, for example, with residence or contact? There is a clear distinction between public and private children cases in that the child's welfare is paramount in the latter but not, as was conceded in Re W, in the former. Prima facie therefore, there is a stronger case for saying that the child's welfare alone, as opposed to wider considerations of justice to all parties, should govern the child's involvement in private proceedings. This might be expected to militate strongly against calling the child. Yet this is perhaps an over-simplistic view of private law cases. Apart from the obvious point that they are in reality conflicts between adults, they frequently involve disputed allegations of domestic violence or sexual abuse (usually put forward as a reason for denying contact), to which the children concerned might be the only independent witnesses in a fact-finding hearing. Lady Hale, while accepting that there could be no presumption against a child giving evidence in private law proceedings, did identify additional risks to the child in lack of representation by a CAFCASS (Children and Family Court Advisory and Support Service) guardian, a larger number of litigants in person and the risk of self-serving manipulation by adult parties in the absence of a neutral and expert local authority.

On the broader plane of children law, of particular note is Lady Hale's view that the “essential test” in determining whether a child should give evidence in family proceedings “is whether justice can be done to all the parties without further questioning of the child”. While in English law the official object of family proceedings is said to be to promote the welfare of the child and while a hearing cannot be fair “unless their interests are given great weight”, welfare cannot be paramount in the light of the competing rights and interests to be considered under the ECHR. For 40 years (see J v. C [1970] A.C. 668) the family courts have insisted that justice to adults has nothing to do with the determination of children disputes. Could it possibly be that the Supreme Court is signalling that this general approach can no longer be squared with the UK's convention commitments?