Family Law
The Case of Re B
In the case of Re B (A Child) (Private Law Proceedings: Child Evidence) a Mother wanted her 13 year old daughter to give evidence.
A Father issued private law proceedings seeking an Order for contact with his five year old son, C, who he had not seen for 3 years.
In response to the Father’s application for contact with his son, the Mother alleged that he had been violent to her during their relationship and as such was concerned for contact to take place.
In view of this, the Court directed that there would be a Fact Finding Hearing.
The Mother wanted her 13 year old daughter (from a different relationship) to give evidence at the Fact Finding Hearing in respect of the violent incidents.
The Judge considered the Mother’s application and made an Order directing a CAFCASS advisor to meet with and interview the daughter and prepare a report for the Court on whether or not it was appropriate or harmful for her to give evidence.
The Father appealed.
The Father argued that the age of the 13 year old girl, the lack of a contemporaneous statement from her, the passage of time since the incidents, and the likely influence upon her account of having lived in the meantime with the Mother, would render her evidence of little value.
The Court of Appeal considered the position to establish whether the child, who was not the subject of the proceedings, should give evidence.
The Court of Appeal held that the Judge had not made a mistake in her approach.
The Court held that it was unfair to suggest the Judge had failed to take into account the potential limitations of the daughter’s evidence and the part it may ultimately play. It considered that the Judge had signalled clearly those limitations were in her own mind and that was enough.
It had to be remembered that the judge had not yet reached the point of determining what use was to be made of the material available from the daughter.
In fact, the judge had not yet made the decision as to whether the evidence should be heard at all, and to this extent they agreed with the mother’s argument that this was a pre-emptive strike by the father.
What are the implications of this decision?
As a result of this case, the Supreme Court stated that when deciding whether or not a child should give evidence in future cases, the Court must be sure that the benefits of calling a child to give evidence outweighs the harm it would cause him or her.
Lady Justice Black confirmed that the sensitivity and caution of the Courts can be relied upon to ensure matters are approached in a way which safeguards those involved.
Lady Justice Black suggested the following advice for determining whether or not a child should give evidence:
- The Court advisor could provide short evidence in respect of exploring the assessment of the child’s involvement;
- The Court need to carefully and sensitively consider the process of a Court advisor questioning a child, and
- The Court need to carefully consider how answers to questions are to be recorded and transmitted to the parties and the Court and how they could be challenged at a fact finding hearing.
The President of the Family Division has set up a new Children and Vulnerable Witnesses Working Group to look at the issues surrounding children giving evidence, as well as other related issues.
Family Law Solicitors Eastbourne, Hailsham and Polegate
If you require further advice in relation to family matters please contact our Family Department for a free 30 minute appointment to discuss your circumstances and receive preliminary advice from one of our experienced Family Law Solicitors.
Eastbourne: 01323 727321
Hailsham: 01323 841481
Polegate: 01323 487051
Nicholas Dennis
Alexandra Funnell
Guy Brown
Carolyn Richards
Please note the above is for information purposes only and is intended to be a short summary. It should not be treated as a comprehensive guide and should not be acted on without qualified legal advice.
