Can children give evidence in care proceedings?

The guideline to whether children should give evidence in care proceedings is set out in the case of Re W (2010) which is now the leading authority on this issue.

The considerations that are outlined in Re W in deciding whether a child should give evidence is that of providing a fair trial. The objective being to balance how detrimental the child’s evidence may be with how damaging giving evidence could be for the child’s welfare. That being said, the following should be considered;

• The child’s wishes and feelings – their willingness to give evidence; an unwilling child should rarely if ever be obliged to give evidence.
• The child’s particular needs.
• The issues that need to be determined.
• The nature and gravity of the allegations.
• The source of the allegations.
• Whether the case depends on the child’s allegations alone.
• Corroborative evidence.
• The quality and reliability of the existing evidence.
• The quality of and reliability of any ABE (achieving best evidence) interview. These are video-recorded interviews with child witnesses.
• Whether the child has retracted evidence.
• The nature of any challenge a party wishes to make.
• The age of the child.
• The nature of any challenge a party may wish to make.
• The maturity, vulnerability and understanding, capacity and competence of the child; this may be apparent from the ABE interview or from professionals discussions with the child.
• The length of time since the events in question.
• The support or lack of the child has.
• The quality and importance of the child’s evidence
• The right to challenge evidence
• Whether justice can be done without further questioning
• The risk of delay.
• The views of the Guardian.
• The serious consequences of the allegations i.e whether the findings impact upon care and contact decisions.
• Specific risks arising from the possibility of the child giving evidence and whether findings impact upon care and contact decisions. ^[1]

The Court must always consider the impact that giving evidence may have on a child. If the balance is that the process would be too traumatic and damaging, then alternatives should be sought. Otherwise, the Court is to consider how to minimise the risk of harm to the child giving evidence.

This could be incorporating special measures, such as screens or a live video link if the child does not want to attend Court. Where the child does attend Court, they should have the opportunity to have a familiarisation visit of the court before the hearing. There should also be measures in place that ensure the child does not encounter anyone that may cause them distress. The need for a registered intermediary or other communication specialist to facilitate the communication of others with the child or relay questions shall be considered. For further explanation of an intermediary’s role visit our blog.

In other cases where the evidence is prerecorded with the child, questions should be given judicial oversight before being proposed to the child. There is also a meeting with lawyers and the judge to discuss ‘ground rules’a head of examination about how it should be conducted, recorded and the incorporation of breaks.

Here at Johnson Astills Solicitors, members of our Care Department are highly experienced and can deal with a wide range of matters where Social Services are involved.  Please contact Johnson Astills at either our Leicester Office on 0116 255 4855 or our Loughborough Office on 01509 610 312 and ask for a member of the Care Team so that we can advise you accordingly. Alternatively, please email us on careteam@johnsonastills.com and a member of our team will be happy to assist you.