Saturday, 27 February 2010
The Evidence of Children and Young Persons
The question of whether children and young persons are permitted to give evidence in court has a long and convoluted history. Until quite recent times, there was a view that such evidence was unreliable and the law leaned against its reception. However, the modern trend in criminal cases is, subject to certain safeguards, to allow the evidence to be presented. To that end, persons (irrespective of age) are now seen as "competent" to give evidence though it is permissible for the trial judge to rule otherwise - (Youth Justice and Criminal Evidence Act 1999 s.53 and the test for competence (if the issue is raised) is set out in s.54). Important initiatives such as "Achieving Best Evidence" exist to try to ensure that evidence given is as reliable as possible. Furthermore, appropriate "special measures" would usually be applied.
In civil cases, children and young persons may give evidence provided that, in the court's opinion, the person understands that it is his duty to speak the truth; and he has sufficient understanding to justify his evidence being heard - Children Act 1989 s.96. Broadly speaking, a person aged 14 or over would give their evidence sworn (i.e. on oath).
Despite these very significant developments, in proceedings relating to the care of a child or young person, there has been a reluctance by the courts to call children as witnesses. This has been based on welfare concerns. In the case of W (Children)  EWCA Civ 57, just decided by the Court of Appeal (Civil Division), this matter has come to a head.
The case concerns a man accused of serious sexual offending against a girl C (now aged 14). C is the accuser and the man wished her to be called as a witness and to have her cross-examined. Initially, all parties had agreed to this but the judge (in the County Court) indicated that she wished to hear further argument on the point. The local authority and the guardian subsequently altered their view but the man did not - (see para. 11 of the Court of Appeal judgment). The judge ruled against the man and based her decision on the case law of the Court of Appeal .
The Court of Appeal, following its own case law (paras. 21-24), upheld the decision of the County Court judge. Lords Justice Wall and Wilson pointed out the many issues which could arise in courts taking the evidence of children/young persons - see para.30. They stated that they intended to send their judgment to the President of the Family Division who could decide whether to take the issues further - e.g. by reference to the Family Justice Council. Lord Justice Rimer was particularly critical of the existing case law even though, as a matter of precedent, it was binding on the court. He was particularly concerned at the potential for unfairness if the man, against whom very serious charges were being made, could not have C called to give evidence and have it tested by cross-examination. Nevertheless, given the binding case law, he agreed with Wall and Wilson LJJ that the judge's decision should be upheld.
The case has been expedited for a hearing before the Supreme Court and will be heard over 2 days: Monday 1st and Tuesday 2nd March. This is an indication of the importance attached to this point. It should be noted that in any criminal case a witness such as C would undoubtedly be called and subjected to cross-examination.
"Measuring Up" - NSPCC and Nuffield Foundation - July 2009
Student Point: The law student might wish to consider this case in the light of the doctrine of binding precedent: Young v Bristol Aeroplane 1 KB 718 - Court of Appeal is bound by its own previous decisions except (1) where two or more decisions conflict; (2) decision contrary to decision of the House of Lords (now Supreme Court); (3) previous decision was "per incuriam." Point (3) was considered in the W (Children) case but the judges decided it did not apply. Note that a previous decision binds the present court even if one or more of the present judges sat on the earlier case. That was the situation here.
Addendum 3rd March 2010: The Supreme Court decision is here. Lady Hale delivered a single and commendably short judgment for the court. It creates a change of emphasis and moves away from effectively having a presumption that the child would not be called to give evidence unless someone seeking to call the child is able to rebut the presumption. This change is not likely to result in a massive change of the current practice against calling the child (e.g. for cross-examination). For the future, the welfare interests of the child will continue to carry great weight but those interests will be weighed in the balance along with other factors in the case. Some factors for consideration are referred to by the Supreme Court in the judgment at paras. 25 and 26. The actual W(Children) case has been returned to the judge for a decision in the light of the Supreme Court's judgment. Also, the President of the Family Division has referred the issue of taking children's evidence in care proceedings to a multi-disciplinary committee to be chaired by Lord Justice Thorpe.