Children Giving Evidence In Court

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Children Giving Evidence In Court

Copyright (c) 2010 Gary Storer

The traditional rules were that children did not have to give oral evidence in court in family proceedings. However, this rule has recently been challenged and reviewed in the Supreme Court. It is worth understanding and considering what the court has said to determine whether your children will have to give evidence.

The Old Presumption Regarding Evidence In Court.

There was a presumption against children giving evidence in family proceedings. This was on the basis that there could be grave damage or further damage to a child if subjected to the trauma of questioning by a stranger who’s task was to attack his or her truthfulness. This generally concerned supremely sensitive areas of sexual matters. Therefore children were unlikely to be asked to give oral evidence in court on the basis that it would harm or upset them.

However, a new case has recently revisited this common presumption and looked at whether it should continue.

The Current View On Children Giving Evidence In Court.

In a recent case Re: W (abuse: oral evidence) 2010 UKSC 12, (2010) 2 FLR the Court was asked to reverse a decision by the Court of Appeal dismissing a father’s appeal against a decision by a County Court Judge to refuse his application for his 14 year old step daughter to give live evidence in care proceedings. The Supreme Court found that the presumption against children giving evidence in family proceedings could not be reconciled with the approach of the European Court of Human Rights which aims to strike a fair balance between competing convention rights. The Supreme Court determined that there must be a new approach and whilst there are undoubtedly disadvantages to children giving live evidence in Court there are potentially some advantages. A child, particularly an older child may not only be willing to give evidence but express the wish to have his or her voice heard by the Court. Furthermore if the family Court hearing takes place before any criminal trial experience giving evidence within the family jurisdiction may remove or at least reduce some of the understandable fear that a child will have surrounding the giving of evidence within the family Court when having to give evidence within the criminal jurisdiction.

Summary.

Whereas it used to be the case that children were very unlikely to be asked to give evidence in court, clearly this has now changed. There may be occasions when children are now asked to give evidence. There will have to be a balancing of the interests of everyone involved in the case, so if, for example, a mother believes the child's evidence is vital, the child may be asked to provide oral evidence. It will be up to the court to decide on each occasion.

Need Family Solicitors Birmingham? If you are looking for friendly and approachable Birmingham Solicitors, we can help you. Gary Storer is Practice Manager for Pearson Rowe Solicitors Birmingham.