Child’s evidence – Part 1: before and after EU withdrawal

Court of Appeal and hearing the child – or not…

In Re S (a Child) [2017] EWCA Civ 44, through a fog of imprecise chronology and unavailable evidence (or was it uncalled, in the case of the child?), the Court of Appeal were able to allow one ground only of a mother’s (M) appeal. That ground related to whether or not her eight year-old son, A, may have been physically abused by his father (F). She did not oppose contact in principle but wanted it to be safe for the child. (Though represented below, the child seems not to have appealled, nor to have made representations in the Court of Appeal.) By the time of the hearing before the judge M had left United Kingdom to live with her husband in Ireland; but, after A was made a ward, she returned to UK to apply to the UK court to relocate.

The parents had a short relationship which had ended in August 2010. The appeal related to findings made by the judge before whom a series of contact applications (starting in the family proceedings court) had finally arrived. He had a schedule of 14 allegations made by the mother. He found three proved, the remainder he rejected. The first two were general, namely that F had behaved in a controlling way towards M throughout their relationship and that he was violent towards her, this being exacerbated by drink. The third proved allegation related to a specific event when the father assaulted the mother, grabbing her around the neck and throwing her to the floor. The last item on the schedule was a recital of cautions and convictions of the father, which the father accepted was accurate and the judge treated as a matter of record.

Evidence from the child: mother’s case rejected by the judge

Of the remaining ten sets of allegations made by M, all but one were rejected by the by the Court of Appeal. The judge had not accepted the ground which arose partly from what A had said. (The judge did not hear what the child had to say about it: this article returns later to the absolute right of the child to be heard.) On this ground the Court of Appeal allowed M’s appeal. It arose from what A had said to a family support worker (S), combined with the fact of a ‘conditional caution’ – for which there must be an admission by a suspect – that F had injured the children a later girlfriend.

Black LJ (who gave the main judgment) explained the factual back-ground when S had seen A, as follows. :

[27] … The judge had available to him [S’s] written report of what A said to her. In it, S explained that she had been working with the family since February 2013, helping to “manage their high levels of anxieties”. It seems that the visit during which the material conversation occurred was her third visit and took place around mid-July 2013. There is no suggestion in her report that the visit was in any way a response to A’s account of his father’s actions during contact. Ms Solway described how, during the visit, she spent some time with A in the kitchen and then in his bedroom. She said that he was enjoying a story book when he asked “unexpectedly” whether she was going to help him to get a particular person to stop hurting him, demonstrating to her how the person had grabbed his arm. He identified the person concerned by his forename only, the forename being the same as the father’s.

The judge had said that ‘the allegation was a serious one’; but then had rejected the allegation and not given it full consideration said the appeal court. Black LJ explained this:

[30] … It seems to me that his handling of the issue fell short in a number of ways. It was incumbent upon him, I think, to deal more fully with what was quite a graphic description by Ms Solway of A’s apparently spontaneous demonstration of events to her. The judge stated baldly that he was unable to rely upon what A had said and gave very little explanation as to why he took that view, except perhaps that there was no mark on A. As for the caution, he said in responding to the request for clarification that he “took no account of [the father’s] previous physical chastisement of children” (my emphasis). He might ultimately have concluded that the father’s actions in relation to the other children did not assist him particularly in his decision about what happened to A, but he did need, in my view, to consider the evidence about those actions specifically and to explain expressly how he dealt with it in making his decision. Furthermore, the judge should also, in my view, have given consideration to whether the findings that he had made about the father’s violence towards the mother contributed anything to the issue in relation to A.

Black LJ therefore set aside the finding that the assault on A did not take place. She remitted the allegation for hearing by another circuit judge (though no reference was made by her to Art 24 (below) or as to whether A will speak to the judge).

Modern questions of legal principle

These facts in relation to this particular case raise a number of live questions of law, both in relation to EU law and family proceedings; and as to other areas of changing family law. In summary these are as follows:

  • Child’s rights and Art 24 – This article looks at the appeal and asks how might the same case have been dealt with if Charter of Fundamental Rights of the European Union (2000/C 364/01) (‘the Charter’) Art 24 (and its expression of the rights of the child) been taken fully into account.
  • Cross-examination of M had F been unrepresented – How might the cross-examination of M been dealt with had F been unrepresented before the judge? This subject is now proposed by the Secretary of State for Justice (Ms Truss) to be reformed.
  • Domestic violence and contact with A – How should the present and proposed PD12J, Child Arrangements & Contact Order: Domestic Violence and Harm effect this case (again this practice direction was not mentioned specifically in Court of Appeal).
  • Relocation to Ireland and further hearings about A – And speculation for the future: how might contact be dealt with after EU withdrawal if A goes to Ireland (which will remain in EU) where the mother wants to live.

Rights of the child under EU Charter of Fundamental Rights

The Charter defines rights, some of which are replicated in European Convention 1950, for all EU member states. It is part of EU and UK law since the Lisbon Treaty of 2009. It is enforceable in the European Court of Justice. Presumably it will go with EU withdrawal.

Under the heading ‘The rights of the child’ Art 24 of the Charter provides:

1 Children shall have the right to such protection and care as is necessary for their well-being. They may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity.

2 In all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration.

3 Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests.

So what were A’s rights in these proceedings; what light could he have shed on what happened; and what (if anything) will happen to those rights with EU withdrawal? The first thing to say is on children’s views and their evidence (dealt with more fully in Evidence in family proceedings by David Burrows (2016, Family Law/LexisNexis) Ch 19). A child’s evidence may be as to relevant facts, or as to expression of a view on outcome. Had A been permitted to ‘express a view’ in these proceedings (as Art 24(2) guarantees: it is not clear from the report whether the judge offered this) he could have spoken to the judge about both: what had happened during when he was ‘hurt’ by F and as to whether he had a view on the future of contact. He is competent to give evidence; but as to how would be for the judge.

These two aspects of hearing a child have been considered by Lady Hale. She explained giving of evidence by a child in Re W (Children) (Abuse: Oral Evidence) [2010] UKSC 12, [2010] 1 FLR 1485 (evidence from a 12 year old as to sexual abuse by her father) and the means by which this could be done (it seems the hearsay evidence of S was not accepted by the judge):

[28]   The family court will have to be realistic in evaluating how effective it can be in maximising the advantage [of the child giving evidence] while minimising the harm [to the individual child]. 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 videoed 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.

From a reading only of the law report, it is difficult to see how harm to A would outweigh the longer-term advantage to his welfare of his giving live evidence, if he is indeed at risk from further ham from his father. And this is a question which a court must surely answer under Children Act 1989 s 1(6) (contact between child and parent, unless risk of harm: to be considered later in this series)?

As to a child’s views and their weight in children proceedings, in Re D (Abduction: Rights of Custody) [2006] UKHL 51, [2007] 1 FLR 961 the House of Lords was dealing with a child of the same age as A. Of that child’s views and his entitlement to have his point of view heard (which may be quite distinct from that of the person looking him) Lady Hale said:

[57]   There is evidence, both from the CAFCASS officer who interviewed him after the Court of Appeal refused him leave to intervene, and from the solicitor who represents him, that A is adamantly opposed to returning to Romania. Yet until the case reached this House, no defence based on the child’s objections was raised…. As any parent who has ever asked a child what he wants for tea knows, there is a large difference between taking account of a child’s views and doing what he wants…. It is the child, more than anyone else, who will have to live with what the court decides. Those who do listen to children understand that they often have a point of view which is quite distinct from that of the person looking after them. They are quite capable of being moral actors in their own right. Just as the adults may have to do what the court decides whether they like it or not, so may the child. But that is no more a reason for failing to hear what the child has to say than it is for refusing to hear the parents’ views.

In neither instance is need the child be subjected to intense cross-examination as might be an adult; but it is the child’s right to be heard in way which was not obviously the case – certainly the child was given no role by Black LJ in the appeal – in this case.

Child having an ‘opportunity to be heard’

In Re D (A Child) (International Recognition) [2016] EWCA Civ 12, [2016] 2 FLR 347 Art 24 was expressly taken into consideration and the question of a child being heard was raised to a ‘fundamental principle’ of English child law (and see Evidence in family proceedings (above) at Ch 19 Pt 6). In that case the Court of Appeal considered whether a Romanian court order should be enforced in UK where a child was not given ‘an opportunity to be heard’ on parental responsibility (ie in where he was to live). The child (aged 7 – slightly younger than A – when the decision appealled against was made) had not been given this opportunity in Romania, as required by Brussels IIA Art 23(b), so his father could not enforce the order in this country. (Incidentally, the decision depended on reciprocal arrangements between the English and Romanian courts. This cannot be expected to survive Brexit. If families break up and go to different EU countries, with one of them being in the UK, family litigation will increase.)

In Re D Ryder LJ treated the child as having ‘the right … to participate in the process that is about him or her’ (§44). He started his review of the applicable law from Brussels IIA and its recitals, and set out Art 24 in full (§[15]) which is incorporated into Brussels IIA. Every court must consider a child’s involvement in proceedings according to the context of the case. This is supported also by United Nations Convention on the Rights of the Child 1989 Art 12:

(1) States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

(2) For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

In the search for ‘fundamental principles’ Ryder LJ started with Children Act 1989 especially the check-list of factors for considering court-ordered arrangements for children in s 1(3). Of the list in s 1(3) he held s 1(3)(a) – that the court shall consider the ascertainable wishes and feelings of a child – to be a ‘fundamental principle’ which no ‘parent can seek to avoid’ (§38). He concluded:

[44]   That is rightly an acceptance that the rule of law in England and Wales includes the right of the child to participate in the process that is about him or her. That is the fundamental principle that is reflected in our legislation, our rules and practice directions and our jurisprudence. At its most basic level it involves asking at an early stage in family proceedings whether and how that child is going to be given the opportunity to be heard. The qualification in s 1(3)(a) of the CA 1989 like that in Art 12(1) of the UNCRC 1989 relates to the weight to be put upon a child’s wishes and feelings, not their participation.

Children and EU law

And what of the child’s right to be heard in Europe? United Nations Convention on the Rights of the Child 1989 Art 12 (by which UK will still be bound, so far its provisions are enforceable) is in similar terms to Art 23 of the Charter as to a child’s right to be heard in ‘judicial proceedings’, and where that child is capable of forming his or her own views (and see Ryder LJ in Re D [2016] (above)).

In UK law, the child’s wishes and feelings are considered by the court in the light of the child’ ‘age and understanding’ (a factor to be considered in Part 3). It may be a distinction without any real difference; but the Charter and UN Convention express these principles as a right. In UK it is permissive. The present Guidelines on Judges Meeting Children who are subject to Family Proceedings April 2010 [2010] 2 FLR 1872 set out their purpose as being to encourage judges to enable children to feel more involved in proceedings which affect them and to ensure judges have understood their wishes and feelings.

The Charter will go with EU withdrawal. It remains to be seen whether UK judges develop its concept of child’s rights (as distinct from their views being taken into account); or whether they will take the more passive approach implied by the UK sources referred to above. And then, as will be considered later in this series, it remains to be seen whether any of the rights now attaching in English proceedings, will be salvaged from the EU withdrawal wreckage; or will English and European courts brandish differing rights of issue and enforcement of proceedings?


6 thoughts on “Child’s evidence – Part 1: before and after EU withdrawal

  1. Thanks for bringing this case to my attention – its an interesting discussion. I think for me it illustrates the constant need for recalibration of paternalism v autonomy. So much depends on the facts of each case and the temperament and understanding of each individual child.

    But as a general point, I firmly believe that most children, most of the time, want to be kept safe and want adults to make the important decisions for them. At aged 8 I would have been horrified and bewildered if anyone had asked me to talk about my parents’ relationship. I do not think children should be treated as chattels but I do worry sometimes that the pendulum swings too far to insisting on autonomy and ‘speaking out’ – even for those children who are just desperately looking to an adult to make a decision to keep them safe.

  2. Many thanks Sarah

    I do take your point. However, the question is whether the child should be given any choice. Indeed It’s not a question of ‘whether’: EU Convention Art 24 says they must be given the option, according to age and understanding; and Lady Hale and Ryder LJ and the common law (as they see it) are with Europe. And of course it’s not just their parents relationship. It’s what is to happen to them, perhaps for the rest of their childhood. The child who is offered the chance to talk can always say ‘no thank you’…

  3. Can they? Can they really? Many children are desperate to please or frightened and uncertain about what is expected of them. To refuse and adult request to talk is indicative of considerable strength of character and resilience, which it cannot be assumed all children have.

    The key must be to always check our assumptions and always see the child as an individual, not some abstract to which we apply concepts of ‘right to be heard’. All the declarations etc are after all founded on the same thing: the age, maturity and understanding of the child.

    • Yes, it’s the right to be heard; not to do ‘what is expected’ of them (Victorian attitudes, perhaps?). All EU Charter on Human Rights at Art 24(1) says is that children ‘may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity’ which isn’t far off CA 1989 s 1(3)(a) but expressed in more psitive terms (perhaps akin to Lady Hale in Re D [2006] at [57]).

  4. Reblogged this on | truthaholics and commented:
    “The Charter will go with EU withdrawal. It remains to be seen whether UK judges develop its concept of child’s rights (as distinct from their views being taken into account); or whether they will take the more passive approach implied by the UK sources referred to above. And then, as will be considered later in this series, it remains to be seen whether any of the rights now attaching in English proceedings, will be salvaged from the EU withdrawal wreckage; or will English and European courts brandish differing rights of issue and enforcement of proceedings?”

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