Policy, Guidance & Law

Supreme Court refuses permission to appeal decisions concerning children’s participation in proceedings

The Supreme Court has refused permission to appeal judgments of the Court of Appeal in two cases concerning the participation of children in proceedings:

  1. Re S (Children) 2016 EWCA Civ 83
  2. Re F (Children) [2016] EWCA Civ 546.

A summary is available via Family Law week: here

Overview of the key issues – achieving a fair trial in the determination of the truth and promoting the welfare of the child as well as other children

In Re S (Children) [2016] EWCA Civ 83 the father appealed against case management decisions in care proceedings, including that K, a 13-year-old child who made allegations of sexual abuse, should not give oral evidence at a fact finding hearing. In the Court of Appeal, Gloster LJ found that it was “wrong [for the judge] not to explore other ways in which K could have given evidence”.  She considered that the decision that K should not be called as a witness failed to weigh up the relevant considerations set out in Re W (Children) [2010] UKSC 12, namely:

[23] The object of the proceedings is to achieve a fair trial in the determination of the rights of all the people involved. Children are harmed if they are taken away from their families for no good reason. Children are harmed if they are left in abusive families. This means that the court must admit all the evidence which bears upon the relevant questions: whether the threshold criteria justifying state intervention have been proved; if they have, what action if any will be in the best interests of the child? The court cannot ignore relevant evidence just because other evidence might have been better. It will have to do the best it can on what it has.

[24] When the court is considering whether a particular child should be called as a witness, the court will have to weigh two considerations: the advantages that that will bring to the determination of the truth and the damage it may do to the welfare of this or any other child. A fair trial is a trial which is fair in the light of the issues which have to be decided. Mr Geekie accepts that the welfare of the child is also a relevant consideration, albeit not the paramount consideration in this respect. He is right to do so, because the object of the proceedings is to promote the welfare of this and other children. The hearing cannot be fair to them unless their interests are given great weight.

[25] But on both sides of the equation, the court must factor in what steps can be taken to improve the quality of the child’s evidence and at the same time to decrease the risk of harm to the child. These two aims are not in opposition to one another. The whole premise of Achieving Best Evidence and the special measures in criminal cases is that this will improve rather than diminish the quality of the evidence to the court. It does not assume that the most reliable account of any incident is one made from recollection months or years later in the stressful conditions of a courtroom. Nor does it assume that an “Old Bailey style” cross examination is the best way of testing that evidence. It may be the best way of casting doubt upon it in the eyes of a jury but that is another matter. A family court would have to be astute both to protect the child from the harmful and destructive effects of questioning and also to evaluate the answers in the light of the child’s stage of development.

[26] The family court will have to be realistic in evaluating how effective it can be in maximising the advantage while minimising the harm. There are things that the court can do but they are not things that it is used to doing at present. It is not limited by the usual courtroom procedures or to applying the special measures by analogy. The important thing is that the questions which challenge the child’s account are fairly put to the child so that she can answer them, not that counsel should be able to question her directly. One possibility is an early video’d cross examination as proposed by Pigot. Another is cross-examination via video link. But another is putting the required questions to her through an intermediary. This could be the court itself, as would be common in continental Europe and used to be much more common than it is now in the courts of this country.

Read the Court of Appeal judgment and a summary by Victoria Flowers of Field Court: here

In Re F (Children) [2016] EWCA Civ 546 the mother and eldest child (L) appealed against an order that she and her two siblings, children of Hungarian parents, should be returned to Hungary upon their father’s application under the Hague Convention. The President of the Family Division, Sir James Munby, dismissed the appeal – no error of fact, law or principle was identified. Munby then reiterated the principles for participation of children in proceedings.

Having considered the question of whether L was given a proper opportunity to participate in the proceedings, Munby reiterated the relevant authorities and guidance.

‘The role of a judge meeting a child who was the subject of abduction proceedings under the Hague Convention should be largely that of a passive recipient of whatever communication the child wished to transmit, which the judge should not probe or seek to test.’

Re KP [2014] EWCA Civ 554

In summing up Munby concluded there had been a “sea-change” in attitudes and that proper adherence to the Re W principles will mean:

it is likely that more cases will feature the child giving evidence, whether or not they are joined as a party”.

Read the Court of Appeal judgment and summary by Hannah Gomersall of Coram Chambers: here

The Family Justice Reforms: Remarks by Sir James Munby

Taken as a whole, these reforms amount to a revolution. Central to this revolution has been – has had to be – a fundamental change in the cultures of the family courts. This is truly a cultural revolution…” Sir James Munby, 29 April 2014

Read Sir James Mundy’s 2014 address about the reforms: The Family Justice Reforms

In his address to the Family Law Bar Association in February 2016, Munby stated that these are “troubled times for the law and for lawyers […] we have to address what I believe is the pressing need for a radical rebalancing of the very functions and purpose of the family courts’.

‘Today I have to tell you that we are now moving forward into a new phase of reform; reform so fundamental that in retrospect the great reforms implemented in April 2014 will seem modest in comparison […]

Some of these are reforms which are already in progress – even if that progress has been much less rapid than I would have wished. In relation to Transparency, Dr Julia Brophy of Oxford University, together with NYAS and, very importantly and most revealingly, a group of young people, have produced a valuable research report analysing some of the effects of the Guidance I issued in January 2014. That work is now being supplemented with a further short research project by Dr Brophy. At the same time, Dr Julie Doughty of Cardiff University is undertaking some parallel and equally important research. I hope to be able, within the next few months, to issue for consultation draft Guidance on how better to anonymise judgments so as to minimise the risk of ‘jig-saw’ identification […]

Innovative thinking will shortly see the piloting in selected courts of schemes for judicial and CAFCASS involvement in the pre-proceedings phase of some types of care case. The idea may seem astonishing – how can a judge be involved pre- proceedings? – but we have to think in new and perhaps very radical ways about how best to make the child’s journey though the care system as seamless as possible. The judicial phase of the process as we currently see it is only a part of a much longer process which needs to be better planned and coordinated then at present, not least in the interests of the children, and the parents, caught up in the system. And new ways of thinking about the interface between the pre-proceedings phase and the actual proceedings might go a long way to addressing the problems surrounding the use, and on too many occasions the mis-use, of section 20 – problems which, unhappily, have drawn much all too merited judicial criticism in recent months […]

We should expect significant changes to the judicial landscape going forward.

Read Sir Mundy’s remarks in full here: The Family Justice Reforms: Remarks by Sir James Munby

Related reading

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