On more than one occasion during the time I have been practicing as a family solicitor, clients have asked me if the Judge hearing their case will have the opportunity to hear evidence from their child within the Court proceedings. Until very recently the answer to this question was ‘no’ as the presumption in family law proceedings was that it was undesirable for a child to give oral evidence and that doing so was an extremely rare event.
The Supreme Court has recently given consideration to this presumption, however, heralding a sea-change in the law in this area. The Supreme Court has ruled that children can be brought in as witnesses in family law cases, providing the benefits of doing so outweigh the risk of harm to the child. The Court indicated that sufficient justification would be needed before a child was called to give evidence. The essence of the Court’s decision is whether justice can be done to all parties if the child isn’t allowed to be heard in evidence.
In determining if a child should be allowed to give evidence in proceedings the Court must give consideration to a two stage test and weigh up: (a) the advantages the oral evidence will bring to the determination of the truth and (b) the damage or harm that giving evidence may do to the child in question or any other child.
Among the areas which must be considered are a child's age and maturity, the child’s own wishes and feelings about giving evidence and the wishes and feelings of the child’s parents or other persons with parental responsibility. Any child who is unwilling to attend court should not be forced to do so.
This is a relatively recent development in case law and, as such, only time will tell as to how family judges interpret and apply the principles set down by the Supreme Court with regards child witnesses. The principles will undoubtedly be considered and applied on the merits of each individual case, and, as with all aspects of the law relating to children, the welfare of the child is paramount. The Court will not sanction a child giving evidence in proceedings where this would pose a risk of harm.
What is apparent is that when faced with the same question from clients about their children giving evidence in the future, the answer to the question above will no longer be a categorical ‘no’ although in reality it should be made very clear from the outset that any Court will approach this issue with great caution!
At Stephensons we have a large team of family law specialists dedicated to providing up to date expert advice in respect of all aspects of the law relating to children and families. If you would like advice and assistance from a member of our family law team then contact us on 01616 966 229.