In re W (Children) (Family proceedings: Evidence) (Abuse: Oral Evidence): SC 3 Mar 2010

The court considered the approach to be taken when considering whether to order a child’s attendance at court in care proceedings. It was argued that the starting point of assuming that a child should not attend, failed to respect the human right to a fair trial of all concerned.
Held: 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. ‘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.’

Lord Walker, Lady Hale, Lord Brown, Lord Mance, Lord Kerr
[2010] UKSC 12, UKSC 2010/0031, [2010] Fam Law 449, [2010] 2 All ER 418, [2010] 1 FLR 1485, [2010] PTSR 775, [2010] 1 FCR 615, [2010] 1 WLR 701
Bailii, SC, SC Summ, Times, Bailii Summary
England and Wales
CitedRegina v B County Council, ex parte P CA 1991
Application was made for judicial review of a decision of the magistrate in proceedings under the Children and Young Persons Act. The issue arose as to whether or not young children should be compelled to give evidence.
Held: The decision of . .
CitedRe P (Witness Summons) CA 1997
. .
Appeal fromRe W (Children) CA 9-Feb-2010
. .
CitedIn Re K (Infants); Official Solicitor v K HL 2-Jan-1963
The House considered the propriety of a tribunal chairman seeing material not placed before the parties. This was a wardship case.
Held: Where the interests of the parents and the child conflicted, ‘the welfare of the child must dominate’.
CitedX and Y v The Netherlands ECHR 26-Mar-1985
A parent complained to the police about a sexual assault on his daughter a mentally defective girl of 16. The prosecutor’s office decided not to prosecute provided the accused did not repeat the offence. X appealed against the decision and requested . .
CitedW (Children), Re; SW and KSW v Portsmouth City Council and ISW, AJW, EDW; Re W (children: concurrent care and criminal proceedings) CA 1-Jul-2009
. .
CitedH v H (Minor) (Child Abuse: Evidence); Re H (A Minor); Re K (Minors) (Child Abuse: Evidence) CA 1989
An application was made for a wardship after allegations of child abuse.
Held: The test for evidence of child abuse which is appropriate is the ordinary civil standard of balance of probabilities as applied to the facts of each case.
CitedLM (A Child) v Medway Council and others CA 19-Jan-2007
Smith LJ set out the approach when a court considered asking a child to attend at court to give evidence in family proceedings: ‘The correct starting point . . is that it is undesirable that a child should have to give evidence in care proceedings . .
CitedIn re S (a Child) (Identification: Restrictions on Publication) HL 28-Oct-2004
Inherent High Court power may restrain Publicity
The claimant child’s mother was to be tried for the murder of his brother by poisoning with salt. It was feared that the publicity which would normally attend a trial, would be damaging to S, and an application was made for reporting restrictions to . .
CitedBradford City Metropolitan Council v K (Minors) 1990
. .
CitedSN v Sweden ECHR 2-Jul-2002
A trial involving a child witness was conducted by the video-recording of an interview conducted by a police officer with the child complainant, and an audio-recording of a second interview conducted by the same police officer, putting questions . .
CitedIn Re W (Minors) (Wardship: Evidence) CA 1990
A wardship was applied for after allegations of sexual abuse. Butler-Sloss LJ said ‘It is not necessary to make a finding of sexual abuse against a named person in order for the judge to assess the risks to the child of returned to that environment. . .

Cited by:
CitedIn re K (A Child) FD 16-May-2011
The court was asked whether K, a 13-year-old girl, should attend the hearing of an application by her local authority to keep her in secure accommodation for three months. She wanted to be at the hearing, but the local authority opposed her . .
CitedLondon Borough Council v K and Others FD 12-Apr-2010
The parents disputed contact for the children. The children then made allegations of very serious sex abuse against the father. A police investigation resulted in no action, it being said that the children had been coached to make false allegations . .
CitedIn re P and Q (Children: Care Proceedings: Fact Finding) FC 19-Mar-2015
The mother and her partner had accused many people of the satanic ritual abuse of her children. The children had since retracted their complaints.
Held: The complaints by the children had been prompted and manufactured by the mother’s partner . .

Lists of cited by and citing cases may be incomplete.

Children, Litigation Practice, Human Rights

Updated: 11 November 2021; Ref: scu.402005