Children Giving Evidence in Family Court Proceedings

There is no clear age at which children can give evidence in family court proceedings. Section 1(3) of the Children Act 1989 sets out a check-list of factors the court is required to take into account when making a decision which affects the welfare of a child. The first of these factors is “the ascertainable wishes and feelings of the child concerned considered in the light of his age and understanding.”

The first point to make is that the 1989 Act refers to “he” for ease of reference, but it equally applies to female children.

The second point to make is that the wishes and feelings of the child are to be considered in the light of his/her age and level of understanding. This means very young children are presumed not to know or understand the importance of decisions affecting them, so very little judicial weight can attach their preferences. As children reach double figures the courts begin to pay more attention to what they say, but this is not written in stone. It all depends on the child concerned. Some eight-year-old children are sufficiently mature to be able to understand the importance of the issues in question, whereas some older children may not be mature enough. It all depends on the child concerned, and their age and level of understanding.

How are the child’s wishes & feelings to be ascertained? Normally by Cafcass or a social worker, who represent the eyes and ears of the court, when preparing a welfare report directed by the court. This involves the Cafcass officer or social worker meeting the child and talking to them in private. The guidance to Cafcass says best practice is to speak to the child privately in each of their parents’ households, so as to avoid any undue influence by one parent. Various written materials are used to draw out the child’s wishes & feelings, including the option of the child writing a short letter to the judge hearing their case.

Frequently parents put before the court evidence they say represents the child’s wishes & feelings: cards or letters written to one parent, or recordings of the child expressing his/her view. The problem with such evidence is that children often say one thing to one parent and the opposite to the other, in an attempt to please the most important adults in their lives, rendering this evidence unreliable.

Another method of ascertaining the child’s wishes & feelings is for the child to meet the judge or give evidence. Following the case of Re W [2010] UKSC 12, there is no longer a presumption against a child giving oral evidence in family proceedings. The court considered that proceedings are more likely to be fair if the parents are allowed the opportunity to challenge the evidence against them, even if that evidence comes from a child. However, a balance should be struck between the welfare of the child, whose evidence may be challenged, and the fairness of the proceedings. This does not mean children should give evidence more often. It may well mean a particular child should not give evidence. It all depends on the child & the case.

Guidelines for children giving evidence were then issued by the Working Party of the Family Justice Council in December 2011, to encourage judges to enable children to feel more involved in the court process in which decisions are made which affect the child. Under these guidelines the court’s principal objective is to achieve a fair trial. To that end an application must be made for the child to give evidence. One parent cannot simply bring the child to court. Any such application should be made to the court at an early stage in the proceedings, not left to the last minute. The trial judge should then list a hearing to determine whether or not the child should give evidence, and if yes, set out the practical steps to be taken to enable him/her to do so. Involving the child in court proceedings between his/her parents is likely to be frightening to any child, and can be emotionally damaging to the child, so the court will weigh up all the 23 factors set out in the guidelines before allowing the child to give evidence. Much will depend on the purpose of the child giving evidence, the issues before the court, the gravity of the allegations made, whether other evidence is available so as to spare the child this ordeal, whether an interview by Cafcass or a social worker would be easier on the child, whether a video link would be appropriate.

Children can also put their views before the court by being represented separately to their parents, by their own solicitor or barrister who will ensure the judge is aware of their wishes & feelings. Such separate representation can occur in private law cases (where the parents are the only parties to the case) as well as public law cases brought by a local authority. Here again the child’s age and level of understanding is important. But this is not the same as the child giving evidence. Where a child is separately represented they have the opportunity to put their views before the court whilst at the same time keeping their distance from the more damaging consequences of giving evidence.

In Re K [2011] EWHC 1082, Mr Justice Peter Jackson considered whether an angry and damaged 13-year-old girl should come to court to give evidence. The court held that it was no longer acceptable to presume that a child’s attendance at a court hearing would be harmful to the child. That court said the starting point would be an open evaluation of the welfare consequences to the child of their attendance, compared to their non-attendance, balanced by the court’s ability to manage the proceedings fairly.

Whether the child gives evidence in court proceedings or not, is separately represented to their parents, or is interviewed by a Cafcass officer or social worker, the child will inevitably discover that his/her views will become know to his/her parents, with all the consequences that flow from that realisation. Such considerations have usually deterred the child from getting involved or deterred the adults from getting their children involved. It is said children often derive some comfort from knowing that adults will take the responsibility of making important decisions about them. Whether this changes remains to be seen.