Wishes and feelings – evidence

At last a debate is building up again over the extent to which children should be heard when decisions, especially court decisions, are made about them. The debate needs to distinguish clearly between hearing – ie listening to – children’s ‘wishes and feelings’ (Children Act 1989 S 1(3)(a)); and hearing – ie receiving, where appropriate – their evidence.

When I was teaching the Children Act 1989 I mentioned to my then 10 year old son that one of the things about it was that children could say what they wanted: ‘Great, then I won’t ever have to eat broccoli’….

The serious point which derives from hearing children divides into two quite separate strands:

(1) ‘Wishes and feelings’ – Whether a child WANTS to be heard, and if so how should this be done, by whom (eg judge, welfare officer etc); and what should be made of what is said? This is a bout the child being truly listened to and his/her views being taken properly into account (not necessarily followed).

(2) Evidence of a child – Then there is the completely different court-based situation of the child who is asked to provide evidence in a case (or of the otherwise vulnerable witness who provides evidence: Re A (A Child) [2012] UKSC 60); and to decide how that evidence should be given or the evidence provided fairly and at least harm first to the child and second to the fairness of the case (see further by David Burrows: http://wp.me/p4jaDx-5N ; http://www.familylaw.co.uk/news_and_comment/evidence-practice-and-procedure-children-proceedings-evidence-from-protected-witnesses#.U9zGNPmSwmE; and see Re B (Child Evidence) [2014] EWCA Civ 1015).

Both of these questions may raise special issues as to confidentiality and of to whom evidence should be released or otherwise provided (D v National Society for the Prevention of Cruelty to Children [1978] AC 171, (1977) FLR Rep 181; Re M (A Minor)(Disclosure of Material) [1990] 2 FLR 36).


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