The Evidence of Children and Young Persons

"Children are the living messages we send to a time we will not see" - John W. Whitehead - "The Stealing of America" - 1983.

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) [2010] 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.

Links:

"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[1944] 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.

The Binyam Mohamed litigation: finalised judgment of Lord Neuberger MR

Here is the outcome of the problem raised by an e-mail to the judges after the Court of Appeal had delivered its draft judgment in the Binyam Mohamed case.  "Law and Lawyers" considered the Binyam Mohamed case here.  The revised paragraph 168 of Lord Neuberger MR's judgment contains this - " ...  as the evidence showed, some Security Services officials appear to have a dubious record relating to actual involvement, and frankness about any such involvement, with the mistreatment of Mr Mohamed when he was held at the behest of US officials."  See The Independent 26th February.

The Khyra Ishaq case: yet another avoidable tragedy

Khyra Ishaq was aged 7 when she starved to death in squalid conditions in Birmingham.  Khyra's siblings have been the subject of care proceedings and the judge, Mrs Justice King, concluded that, in all probability, Khyra would not have died had there been an adequate initial assessment by social services and proper adherence by educational welfare services to their own guidance.  The Birmingham Local Safeguarding Children Board have yet to complete a Serious Case review.  The Department for Children, Schools and Families has made this statement.


Khyra's mother (Angela Gordon) and her partner (Junaid Abuhamza) stand convicted of manslaughter.  Pleas of guilty to manslaughter based on diminished responsibility were accepted - (during the sixth week of a re-trial) -  after psychiatric reports were presented.  They are to be sentenced in the near future.

The reality is that we have a good legal structure for protecting children and yet these tragedies continue to occur.  How to prevent them appears to be the elusive issue and, no doubt, the reviews will lead to yet more recommendations.

Key elements in the cases often seem to be that concerns were not thoroughly investigated or that legal proceedings were not commenced soon enough.  The child at risk of "significant harm" can be protected by the obtaining of an interim care order.  It is not necessary to wait for actual harm to occur since "likelihood" of significant harm suffices.  Whilst local authorities have (as public bodies) to consider the Right to Respect for Private Family Life (Article 8 European Convention on Human Rights), initiation of proceedings is sometimes delayed until there is a considerable amount of evidence available and, sometimes, much more evidence than  would justify a finding of likelihood of significant harm under the Children Act 1989 s.31.

See Daily Telegraph 26th February 2010.  One side-effect of this case might turn out to be restrictions imposed on home-schooling - Daily Telegraph.

Congratulations with mixed feelings!

The latest round of Queen's Counsel appointments has been announced with 129 appointees to this elite "kite-mark of excellence" rank in the legal profession - see Ministry of Justice.  I have little doubt that all the appointees deserve this distinction but, whilst the champagne corks are popping in Chambers, it has to be seriously questioned whether the rank is necessary.  Whose interests does it serve: the public or the lawyers?  A few years ago the rank survived an attack by the Office of Fair Trading.  Will it continue to survive into the future?

Complicity in Suicide - New Guidelines but ....?

In the Purdy case [2009] UKHL 45, the House of Lords required the Director of Public Prosecutions to issue an offence-specific Policy setting out the facts and circumstances which would be considered in making a decision whether to prosecute a person for encouraging or assisting suicide (or attempted suicide) under section 2 of the Suicide Act 1961.  The Policy has now been issued - see Crown Prosecution Service.

Section 2 of the 1961 Act was recently amended by the Coroners and Justice Act 2009 s.59.  The essence of the offence is doing an act which is capable of encouraging or assisting another to commit suicide (or attempt suicide) with INTENT that the other is encouraged or assisted.  The maximum sentence of 14 years imprisonment was retained.

The Policy document does not contain an exhaustive list of factors but 16 factors are set out which would tend toward a prosecution and 6 factors which would point against.  The CPS emphasize that a "tick box" approach will not necessarily make the decision.

Looking at the Policy, it continues to be somewhat unclear whether a loving husband who purchases travel tickets for his wife, for whom life has become unbearable as a result of progessive disease such as Multiple Sclerosis, to travel to a certain clinic in Switzerland might be liable to prosecution.  The Policy, whilst not changing the law, might make matters somewhat clearer in some cases but there would still be an investigation with no advance certainty as to the possible outcome.  A prosecution might still follow.  Only time and a tragic case will inform us further.

Undue lenience and a seriously cruel act

One of the safety valves of the criminal process is that the Attorney-General may refer (under the Criminal Justice Act 1988 s36) sentences to the Court of Appeal if she considers them to be unduly lenient.  It is a most useful provision.  The case of Harpal Singh Moore is one where a sentence has been doubled.  He had applied (a number of times) a hot iron to his wife's face causing serious injury.  Hallett LJ described the offence as a "brutal, sustained act of cruelty."  The Court of Appeal considered that a sentence of 5 years imprisonment was right even though Harpal Singh Moore had been described as of "good character" and had no previous convictions for violence.  This increase of sentence is to be welcomed.  See the Attorney-General's website for details.

The present government has, rightly in my opinion, mounted a strong campaign to tackle the serious issue of domestic violence - see Home Office.  Specialist Domestic Violence Courts (SDVC) have been set up based on a number of existing Magistrates' Courts - see Ministry of Justice March 2009.  The approach taken to these cases is one involving several criminal justice agencies and is to be welcomed.  The message is that domestic violence will be taken seriously.

The Judiciary - more on appointment processes

Justices of the Peace - The Ministry of Justice has announced a consultation about proposed changes to the system for appointing Justices of the Peace.  Serving as a J.P. is a very important way in which the layman can contribute to the administration of justice.  The Lord Chief Justice has recently said - "The largest part of the judiciary is formed by the magistracy. The 29,000 or so Justices of the Peace who sit in magistrates’ courts deal with more than 95 per cent of all criminal cases, as well as a significant proportion of family cases.  The administration of justice in England and Wales would collapse without the contribution made by men and women volunteering to serve their local communities. I believe society owes them a huge debt and I am not sure that their value is always appreciated" - Lord Chief Justice's Review of the Administration of Justice in the Courts.

The Advisory Panel on Judicial Diversity has published a report containing 53 recommendations aimed at improving diversity within the professional judiciary.  See Ministry of Justice News Release and the Panel Report.

For a view on this report see "Mr Justice Elephant in the Room" at CharonQC's blog.

I have long thought that the advent of the Supreme Court of the United Kingdom would start a process which will end up with some form of "Confirmation Hearings" before someone can be appointed as a Justice.  The excellent Supreme Court blog carries an item on this very issue.