Children proceedings: evidence from protected persons
Children and those who lack capacity have special protected party status. Should certain witnesses – not necessarily for the same reasons – enjoy the same status in civil proceedings? The subject has been considered recently in the Court of Appeal (though not in any obviously coherent way) in the context of children law family proceedings. The subject of whether such evidence might in certain instances be subject to a form of public interest immunity remains at large (D v National Society for the Prevention of Cruelty to Children  AC 171).
Re J (A Child)  EWCA Civ 875 (27 June 2014) was a further rerun of the Supreme Court case (via Pauffley J in the Family Division of Re A (A Child)  UKSC 60 (a vulnerable witness (X) in child contact proceedings where her evidence could not be relied on as the basis of a finding of fact against the father applicant: paras 104 and 110 after various efforts had been made to deal with it in a way which was fair to the father. Public interest immunity for X’s child protection informer evidence was touched upon but discounted by the Court.) In Re B (Child Evidence)  EWCA Civ 1015 (22 July 2014) the Court of Appeal considered whether a court in private children proceedings should receive evidence from another child (not a party to proceedings).
Justice to parties, before any welfare of the protected witness
Re B took as its starting point Re W (Children) (Rev 2)  UKSC 12 which concerned whether a child, the subject of care proceedings, should be called to give evidence. Baroness Hale concluded (at para 30) that the test must be ‘whether justice can be done to all the parties without further questioning of the child’; but that it was justice to all parties – drawing a balance of Convention rights – which should be the basis for a decision. It was not a question only of giving priority to whether the child should give evidence as had been the previous law:
 … 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 ECtHR, 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, BAILII:  ECHR 551. 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.
Thus the court must balance on the one hand ‘determination of the truth’ as against ‘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’ (para 24).
In Re B the judge had decided, after careful consideration in accordance with Re W, that the evidence of a thirteen year-old daughter to the mother of a 5 year old son ((half) daughter of the father applicant in contact proceedings) in the first instance should be approached by being obtained by a court ‘adviser’. The order
 … envisaged that she may actually proceed to put questions to G. The parties were directed to agree and provide to the Adviser “a list of proposed questions ….that they would seek to be put to G”. The officer was then to meet G in a neutral venue and it was:
…left to the Adviser’s professional judgment as how to conduct the interviews and whether or not the questions should or should not be put to G and if so the format and formulation of the questions or any additional questions the Adviser feels appropriate to the issues in Re W but the Court’s provisional expectation would be that none of the questions proposed by the parties should be put on the first occasion or until the Adviser feels appropriate.
The court said that it wanted the ‘adviser’s’ report to cover:
(1) Would it be appropriate ‘or within G’s best interests’ to answer questions prepared by the parties;
(2) Whether G was willing to answer questions or attend a fact finding hearing to give oral evidence; and
(3) ‘If the “adviser” [so] decided’ to put the questions to G, and report her answers.
The father took no part in this process and, though it is not immediately clear from the report, it is presumably his appeal to the Court of Appeal; and at what can only be described as an interim interim stage. (The judge below gave permission to appeal to the Court of Appeal.)
Evidence from children/vulnerable witnesses
The position after the last of these decisions is as follows:
(1) Child witnesses as parties can be required to give evidence: this will depend on the justice of the case balanced against the welfare of the child (Re W (Children) (Rev 2)  UKSC 12);
(2) Similar principles apply to child witnesses in private law proceedings even though they are not directly party to the proceedings (Re B (Child Evidence)  EWCA Civ 1015)
(3) A vulnerable witness in children proceedings remains open to cross-examination (by some means: Re A (A Child)  UKSC 60); or is she subject to informer immunity (D v NSPCC).
A coherent strand through these various forms of evidence-giving is still awaited. The law is dangerously unclear on what, if any, immunity should be available for those who provide evidence which protects children. The extent to which witnesses in any circumstances should be protected is unclear; and the means whereby evidence is collected and adduced in court – eg as was done in Re B – remains uneven. (Re B decides nothing in that sense: it was an appeal on an interim decision, interim to children proceedings.)
It is difficult to believe that a Children and Families Act 2014 was passed less than 6 months ago, with a variety of provisions for evidence and case management in children proceedings – yet the means of securing justice in circumstances such as described here remains so much at large.
23 July 2014