Magdalen Chambers welcomes Associates

All members and staff of Magdalen Chambers were delighted to welcome two highly-regarded retired members of the judiciary, His Honour David Tyzack QC and Paul Waterworth (Ret’d District Judge) as Associates of chambers during informal drinks in chambers recently. Chambers will benefit from their experience and will be a base for their ongoing involvement in legal matters.

Rupert Chapman

Courts Unable to Order HMCTS to Fund Representation in Family Proceedings

Since legal aid was withdrawn for all private law actions, save for those which are excepted from the scheme, there has been much debate (and some litigation) on the issue of the fairness of such arrangements and the perceived lack of justice in denying the victims of domestic abuse and/or of unreasonable conduct in relation to contact, the benefit of legal representation.

While the Government has recently announced that it will loosen restrictions imposed on victims of domestic abuse which were preventing them from accessing legal aid in family cases, even when it was accepted that they had suffered violence, the system remains restrictive and this does nothing to address the difficulty for parents who face unreasonable restrictions on their contact or have low incomes and must address difficult or complex legal proceedings. The Court of appeal in Re K and H (Children) [2015] EWCA Civ 543 considered the power of the courts to make an order that the Court Service (HMCTS) should fund representation in some family proceedings where an otherwise unrepresented party was unable to do so independently.

Attempts were made in Re K and H (Children: unrepresented father: cross-examination of child) [2015] EWFC 1 to address this issue. HHJ Bellamy considered an application for contact in circumstances where another child of the mother had alleged sexual abuse against the applicant father. That child, now 17, had been the subject of an ABE interview and was to be ordered to give oral evidence in the fact-finding hearing. The issue arose as to how the cross-examination was to be undertaken where the father was a litigant in person. The guidance on obtaining the oral evidence of a child in such proceedings clearly states (Guidelines in relation to children giving evidence in family proceedings, Family Justice Council, at para 17) that ‘A child should never be questioned directly by a litigant in person who is an alleged perpetrator’ and that (at para 21) ‘…the ultimate responsibility for ensuring that the child gives the best possible evidence…rests with the tribunal.’

The Lord Chancellor intervened and argued that as the father was ineligible for legal aid he was able to afford to pay privately for legal representation and did not do so by choice alone. The judge found as a fact that the father could not afford to pay for representation and that the Lord Chancellor’s approach would be a breach of the Article 6 rights the father. The Bar Pro Bono Unit had been unable to provide counsel. There was no guardian and the use of a guardian’s representative to cross-examine the children’s sister would not have been appropriate in any event (applying H v L and R [2006] EWHC 3099 (Fam)). Applying the same case it would not be appropriate for the Judge to conduct the questioning.

Relying on Q v Q; Re B; Re C [2014] EWFC 31 the judge concluded that HMCTS should meet the cost of the father’s representation and gave guidance on how the Court should approach such a decision. The Lord Chancellor, however, appealed and the Court of Appeal overturned that judgment and the guidance in Q v Q.

The Court of Appeal set out the relevant statutory basis for the provision of legal aid and for the provision of services to ensure the proper administration of the Family Court. The Court observed that while the criminal courts are able to determine whether an individual qualifies for legal aid, that role otherwise lies with the Director of Legal Aid Casework and that the basis for all of this was statutory.

The Court (the lead judgment being given by the Master of the Rolls) held that;

  • The starting point is that a clear principle of statutory interpretation is that a general power to do something (in this case to provide funds for the proper administration of the Family Court) could not be used to circumvent a clear and detailed statutory code,
  • It was important to remember that “nothing less than clear and unambiguous language is effective to levy a tax. Scarcely less important is the requirement of clear statutory authority for public expenditure.” For this the case of Holden & Co v CPS (No 2) [1994] 1 AC was cited – a case where an attempt had been made to secure funding by security of costs for criminal appeals outside the statutory code.
  • These principles were unaffected by the coming into force of the Human Rights Act.
  • It was not possible to interpret LASPO or the Courts Act 2003 and Matrimonial and Family Proceedings Act 1984 in such a way as to circumvent the clear statutory code within LASPO. Parliament had decided who was entitled to legal aid and the Court must respect that.
  • Parliament has provided by regulations for the provision from central funds of the costs of representation in criminal proceedings, but has not done so in civil or family proceedings. A similar provision would be required to extend the scheme to such proceedings.
  • The intention of the provision requiring the Court to “cause to be put” questions on behalf of an unrepresented party (s. 31G(6) of the 1984 Act) was to provide that magistrates’ clerks should put those questions. Now that the courts had been reorganised it was possible to make use of their skills in any part of the Family Court system in that manner.
  • It is plain from the European Jurisprudence that it is not necessary to provide public funding in order to secure a fair trial (see Steel and Morris v UK [2005] 41 EHRR22). As such there was no breach of Article 6 in not providing public funding in this case.

As a result the court should consider;

  • A direction that the child should give evidence which is conditional upon the father being represented, though this would be inappropriate in some cases, such as where the evidence of the witness was essential,
  • The child or other vulnerable witness being questioned by the Judge, which was said to be a difficult situation, though the judge could ‘question’ without ‘cross-examining’,
  • The witness being questioned by a justices’ clerk, or
  • The appointment of a children’s guardian.

It was acknowledged that there may be cases where the above options were all impossible and  encouragement was given for the enactment of some statutory provision to enable representation to be secured in such cases on a basis equivalent to that in criminal proceedings. A response from the MOJ to that request is eagerly awaited.

Rupert Chapman

All Change?!

There have, over the years been a number of reviews of the tribunal system- ‘Justice’ in 1987, the green paper ‘Options for Reform’ in 1994, ‘Fairness at Work’ in 1998, the Leggatt Report in 2001, the ‘Employment Tribunal System Taskforce’ in 2002 which resulted in the Gibbons Report in 2007, and finally ‘Resolving Workplace Disputes’ in 2011. Prompted by the President of the Tribunals in England and Wales, the Law Society published a ‘new look’ in its consultation paper, which came out in September.

For those of us still reeling from the significant decline in the number of cases being litigated in the employment tribunal since the introduction of fees and early conciliation over the last couple of years, the significant changes proposed may appear more like knee-jerk reactions rather than carefully considered proposals, but give them chance it is still only a consultation paper.

 

The proposals envisage the biggest overhaul and change to the tribunals system since its inception, and a nearing to the Single Family Court. It is proposed that one court/tribunal (as it has not been determined which model of operation ought to be adopted) should deal with all matters of employment law and the associated and ancillary applications.

 

If that were to be the case then surely the forum would have to be a court because the tribunal would otherwise continue to lack the necessary inherent jurisdiction to deal with matters such as injunctive relief, contempt of court, or high level costs assessments.

The consultation document asks what role lay members would have in such a setting, and whilst it is easy to answer: none; it must be remembered that lay members are the hallmark of our current system and perhaps the necessary panacea to claims of bias.

It is also remarkable that this one stop shop would not only deal with ‘employment’ related matters but all ‘equalities’ matters- i.e. general civil claims currently before the county court in matters as diverse as goods and services or education and property.

The proposed new structure would be a four-tier approach whereby cases are allocated according to type of case: tier one for determination on paper only, tier two an inquisitorial hearing without cross examination, and tiers three and four being more akin to the current hearings.

Having read the consultation document I have the following concerns:

  • Whilst I admire the desire to speed up and reduce the cost of the current system, I am worried about the claims proposed to be dealt with in tier 1. We all know of Wages Act claims that contained the most complex and legally difficult arguments, which were won or lost on the basis of the evidence at tribunal. To lump all of these together as being appropriate for a determination on the papers is in my view a potentially dangerous move.
  • Moreover, tier 2 claims would also not have the benefit of the rigorous testing by cross-examination.
  • Finally, tier 4 seems to open up the nature of work to such an extent that the tribunal staff and practitioners alike would need vast amounts of re-training.

I urge you to read the consultation for yourselves, and to respond to it.

Attorney General’s Regional Panel Counsel 2015

Chambers are delighted to announce Sarah Hornblower’s appointment for a second five year-term as Junior Counsel to the Crown on the Attorney General’s Regional Panel for employment law. She continues to represent individuals and large corporate clients alike as well as her Government based work for the Crown. Sarah is well known locally (by Judges and instructing solicitors) as being skilled with a pragmatic and fair approach to her cases.

A local Government client commented ‘Sarah is a genius. Sarah was the one person with the sense, presence and authority to carry this off. It was brilliant work. Sarah’s success has lifted the clouds of gloom that were threatening to overwhelm us in the prisons here in the South West.’

https://www.gov.uk/guidance/attorney-generals-panel-counsel-appointments-membership-lists-and-off-panel-counsel

 

Success at the first Biq Quiz at Exeter Cathedral

Well done Team Magdalen!!!!  Out of 27 teams ‘We Could be Zeros’ took an early lead. However after a very hard fought battle over 11 rounds, fueled by a delicious hog roast courtesy of Kenniford Farm, our very own ‘Court in the Act’ achieved 134 points and joint 2nd place with ‘The Harbingers of Hele’ in the first ever Exeter Cathedral Quiz hosted by the very funny Tony Hawks. Much fun was had by all and much needed money raised for the Cathedral.

 

Quiz Score Board Quiz the Prize

Magdalen Chambers ranked as a leading set by the Legal 500

For the second year running Magdalen Chambers has been ranked by the respected professional directory, the Legal 500, as a leading set on the Western Circuit, with seven members of chambers, including both joint heads of chambers, being recognised as leading juniors in their fields.

Formed from the merger of Southernhay Chambers and Rougemont Chambers in 2013 – and with more than 40 members, now one of the largest sets on the circuit – Magdalen Chambers is considered by the authors of the Legal 500 to have “gone from strength to strength” and to be “very user-friendly”. Assisted by a clerking team headed by James Basden which was described as “helpful and accommodating” and providing “an excellent service”, chambers was recognised for its strength in the areas of commercial banking and insolvency, construction planning and environment, personal injury and clinical negligence, property and family law, where chambers is considered to be “one of the best sets in the South West for family law” and as being “particularly strong in public law children and financial remedy cases”.

The seven members recognised by the authors are;

  • Joint head of chambers Michael Berkley, who was ranked in the commercial, banking and insolvency and property categories and was described as “A very personable and able lawyer” who “undertakes cases concerning adverse possession, boundary disputes, and landlord and tenant matters”
  • Joint Head of Chambers Christopher Naish who was recognised for his expertise in family law and described as “effective in court, and good with clients from all walks of life.”
  • Rupert Chapman, in the area of family law who was considered to be “A strong all-rounder with extensive knowledge of public and private children law and financial remedies.”
  • Gavin Collett for expertise in construction, planning and environment, who is “known for his expertise in planning matters.”
  • William Hopkin, recognised for expertise in commercial, banking and insolvency work who, it was said, “provides clear, forthright and sensible advice.”
  • Jonathan O’Neill in the area of personal injury and clinical negligence of whom it was said that “it is clear that he is respected by his peers.”
  • Tony Ward, in the area of family law who was considered to be “ruthless in cross-examination.”

The Village Green is dead, long live the Village Green….

After a series of high profile cases in the High Court, Court of Appeal and Supreme Court in the last 2 years, together with recent legislative changes which appeared to reduce the chances of land acquiring Town or Village Green (TVG) status, the first high profile TVG case to be heard in the High Court in 2015 offers a glimmer of hope.

As promised on LinkedIn in July, I said I would post the decision of Mr Justice Dove in my long running case of R (Goodman) v Secretary of State for the Environment, Food and Rural Affairs once it had been approved. And here it is.

In summary the Inspector rejected the application to register following a public inquiry in 2013 because the landowner, Exeter City Council

  • had “impliedly appropriated” land from employment use so that the land became held as recreational open space (and therefore subject to a public trust) and that any recreational use was “by right”; alternative);
  • as the city council had allowed fairs and a circus on part of the land, any recreational use of it for sports and pastimes had been by implied permission following the decision in R (Mann) v Somerset County Council[2012] EWHC B14.

Dove J quashed the decision on the grounds that;

  • for an “appropriation” to have occurred (implied or otherwise), there must be evidence that the local authority directed its mind to, and answered, the statutory test for appropriation set out in s.122(2A) of the Local Government Act 1972. Simply managing land as recreational open space was not of itself sufficient to give rise to an implication that an appropriation had occurred; and
  • relying upon the decision in Mannitself, Dove J emphasised the fact sensitive nature of any inquiry. Further the status of the application land publicly owned (as opposed to privately owned as was the case in Mann) was a material consideration which the Inspector failed to have regard to bearing in mind the use put forward by the landowner was not inconsistent with a public entitlement to use the land.

It is clear that Goodman  provides a number of potential new lines of argument for those seeking to register land as a TVG especially when facing a local authority landowner who seeks to rely upon Mann.

Importantly Dove J emphasised that where land is held by a public body the initial focus must also establish the power under which any land is held.

I represented the Applicants at public inquiry in 2013 (instructed direct) and in 2015 was led by Douglas Edwards QC of Francis Taylor Buildings in the successful Judicial Review. We were instructed by Richard Buxton Environmental and Public Law for the Judicial Review claim which was initially stayed pending the outcome in Barkas v North Yorkshire County Council [2014] UKSC 31.

Exeter City Council did not participate in the Judicial Review.

Please contact my clerks for further details on (01392) 285200 or clerks@magdalenchambers.co.uk

I am happy to be instructed by members of the public direct on TVG matters in appropriate cases.

Rupert Chapman

Supreme Court Decision on Habitual Residence

At the recent Exeter Court user’s group  the Designated Family Judge drew to the attention of attendees the judgment of the Supreme Court in the case of Re LC (Children)[2014] UKSC 1. Handed down in January last year the case considers the extent to which an adolescent child’s own state of mind can be considered when deciding whether she has acquired habitual residence in this jurisdiction, as opposed to the state of mind of her resident parent.

The proceedings were brought under the Hague Convention on the Civil Aspects of International Child Abduction. The father was from the UK and the mother was Spanish. There were four children aged 13, 11, 9 and 5. They were all born in England and were Spanish nationals. The parties separated in July 2012 and until then the family had lived in England. On their separation the mother took all four children to Spain, where they remained until December the same year when they returned for an agreed holiday with the father. He retained them in England and the mother issued proceedings for their return.

Those proceedings concluded with a judgment of Cobb J (reported at [2013] EWHC 1383(Fam)) by which the children’s return to Spain was ordered. The Judge found that the children had acquired habitual residence in Spain shortly after their arrival there and had not lost it on their return to the UK. He found that while the older child had reached an age where her objection to being returned was a relevant objection under Article 13, but that the younger children had not and that their wish to remain in the UK was a preference not an objection. He further rejected father’s contention that there was a grave and intolerable risk to the children should they be returned to Spain and that he should exercise his discretion to permit the children to remain in the UK.

Father appealed to the Court of Appeal, as did the oldest three children, having successfully engaged various solicitors themselves and sought to challenge the refusal to grant them party status. The children’s appeals were rejected by the Court, as they did also the father’s (the judgment is at [2013] EWCA Civ 1058) in respect of all but the oldest child, whose objection they felt the judge had given insufficient weight. The return order was therefore overturned in her respect. This left the Court of Appeal having to consider whether the impact of separation from that child created an intolerable situation for the younger children if they were to be returned, which necessitated a remission to the Family Division for a further hearing.

His appeal to the Supreme Court focussed on the issue of habitual residence. The Court (Lord Wilson giving the leading judgment, with which Lords Toulson and Hodge agreed) observed that as Spain is an EU nation, the provisions of Brussels IIR take precedence over the terms of the convention. The regulation provides by Recital 12 that the court of the state where a child has habitual residence should have jurisdiction to decide on her welfare. That regulation has specific and different rules regarding the return of children, in particular that where the court of a member state declines (as here) to return a child, the court of the state where the child has her habitual residence can override that order provided that the parties and the child have been given an opportunity to be heard and that such an order would not be open to challenge in the ‘requested state’ (here the UK). As such habitual residence is crucial to the decision as to whether a return order is open to challenge. If the Supreme Court were to overturn the decision on habitual residence then the Spanish Court could not overturn the decision to refuse to return the children.

Lord Wilson observed that the test in R v Barnet LBC ex p Shah [1983] 2 AC 309 had been overturned by the Supreme Court in A v A (Children: Habitual Residence) [2013] UKSC 60 shortly after Cobb J’s judgment and that the test for habitual residence was now the same as under BIIR – “the place which reflects some degree of integration by the child in a social and family environment”.

Habitual residence must be assessed with this in mind and it will be highly unusual for a child not to acquire habitual residence in the country to which she travels lawfully to live with a parent, however the requirement for integration permits some flexibility.

Lord Wilson held that where a child is an adolescent or has the understanding of her situation of an adolescent, particularly where the residence with the other parent is sufficiently short the assessment needs to look at all the facts, including the state of mind of the child herself (while living in the other country as opposed to her wishes at the point of the trial) as to her degree of integration into each competing state. Baroness Hale (with whom Lord Sumption agreed) agreed, though she was of the view that the same approach applies to younger children as well.

This was an explicit reversal of the statements of Lord Scarman in the Barnet case (above). It opens up the issue of habitual residence to be more than simply a surface consideration of where the child has a school, a home and so on, to also consider whether the child had settled in the new jurisdiction in their own mind and whether they had themselves committed to that home. This new avenue is remarkably close to being a welfare consideration – the child’s ‘wishes and feelings’ being treated as different to, but at least superficially very similar to, their ‘state of mind’. It is certainly a shift towards the child and away from the old-fashioned attitude of habitual residence being related to parental rights.

Taking that into account the evidence was that the three older children did not themselves feel integrated in their new community in Spain, having neither a permanent home nor friends and having not settled, the mother not having assisted them in that process. The Court therefore set aside the conclusion that the eldest child was habitually resident in Spain and remitted that issue for rehearing in the Family Division. The issue of the younger children, though not adolescents, was also remitted for rehearing on the basis that they were so close as a sibling unit that the whole needed to be considered as well as the individual position of the older child.

The court further held that the child’s welfare was the ‘threshold consideration’ for a decision of whether to join them as a party to proceedings and not simply a ‘primary consideration’. Where, as here, the child’s account of their state of mind was central it would follow that the child should be given party status. Their consideration of this issue, though focussed on convention situations, bears consideration in all proceedings where such an order is sought.

Dealing with the ever increasing number of Litigants in Person

Cuts to legal aid, increased court fees and the proliferation of ‘information’ available on the internet have all increased the number of litigants in person in  the courts and tribunals of this land over the last few years, and the Employment Tribunal is no exception.

But what is the Tribunals approach and how does it affect the conduct of the case? The starting point, as it always is, is the Overriding Objective contained within Rule 2 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013.  It states: ‘The overriding objective of these Rules is to enable Employment Tribunals to deal with cases fairly and justly. Dealing with a case fairly and justly includes, so far as practicable- (a) ensuring that the parties are on an equal footing; (b) dealing with cases in ways which are proportionate to the complexity and importance of the issues; (c) avoiding unnecessary formality and seeking flexibility in the proceedings; (d) avoiding delay, so far as compatible with proper consideration of the issues; and (e) saving expense. A Tribunal shall seek to give effect to the overriding objective in interpreting, or exercising any power given to it by, these Rules. The parties and their representatives shall assist the Tribunal to further the overriding objective and in particular shall co-operate generally with each other and with the Tribunal.’

The appellate courts have been grappling with the balance to be struck at first instance between assisting a litigant and loosening impartiality. Some examples follow: In the case of Higgins v Home Office [2015] UKEAT/0296/14/LA, the claimant had submitted her claim form more than 6 years late. She had ticked the box claiming unfair dismissal and within the muddled ET1 form had indicated the compensation that she sought. The claim was rejected because i) it was brought outside of time limits; ii) the remedies sought did not appear to be those the Tribunal can award; and iii) the claimant did not appear to be claiming unfair dismissal. The claimant appealed. The EAT allowed the appeal. The order was a drastic order, having been made without a hearing and submissions. Such orders under Rule 12 in the EAT’s opinion should only be made in the most plain and obvious cases. Any borderline cases, or cases lacking clarity, or where there is a muddle involving a litigant in person, should be disposed of under Rule 27.

In East of England Ambulance Service NHS Trust v Saunders [2015] ICR 293, the Claimant had made a complaint that she had been discriminated against and unfairly dismissed. It had been agreed that a preliminary issue was whether she was, as she claimed, disabled within the meaning of the Equality Act 2010. The ET heard evidence and then retired to discuss their conclusion. At that stage, and without prior reference to the parties, it began to conduct research on the Internet. After questioning the Claimant the next day, the Respondent asked the ET to recuse itself because it had exceeded its role in investigating evidence for itself, which neither party had sought to put before it, and had assumed the truth of that which it had itself uncovered from the Internet. The Respondent also claimed that the judge was biased towards the claimant. The ET refused to recuse itself and the respondent appealed. The EAT allowed the appeal. Stating at paragraph 46, page 305: ‘A degree of care is required by the tribunal in assisting one party, it should be cautious not to cross the line between impartiality (which it must maintain) and acting as an advocate (which it must never do).’

In U v Butler and Wilson [2014] UKEAT/0354/13, the Claimant was, at the time, a litigant in person who suffered a disability in the form of a mental condition. The issue here was that the Claimant had previously failed to comply with various case management orders and then was late attending a hearing. When he did finally arrive at the hearing the Claimant said he was having a psychotic episode and that his bundle was still at the printer’s next door. By this time the EJ had already struck out his claims. The EJ invited him to address her whether she should review that decision. He orally asked for a review which was undertaken by the EJ there and then but she declined to revoke her decision. The claimant appealed on the narrow basis that the EJ had failed to consider whether to adjourn for a short time in order to enable the appellant to recover his lucidity and/or to enable him to obtain, from the printer’s next door, the bundle which, he said, he had brought and upon which, implicitly, he would wish to rely.

The EAT allowed the appeal. The Employment Judge failed properly to exercise her case management powers to adjourn an oral application for a review, of a decision made at a hearing, to permit the appellant the opportunity to reflect on what course he wished to pursue. She should also have explained to him that one option available to him was to make a written application for a review rather than proceed immediately with an oral application.

In Johnson v Manpower Direct (UK) Ltd [2015] UKEAT/0351/14/DXA, the appeallant argued that the tribunal, before whom he had appeared as a litigant in person, had erred in law by failing to take a point which he had not raised himself. HHJ Serota found that the point was neither so obvious nor so significant so as to amount to an error of law. However, and perhaps rather concerningly, stated that where a point was ‘an essential ingredient of the claim’ it may be that the tribunal should offer assistance to the litigant in person.

Just to emphasise the increasing numbers of litigants in person we face as opponents, and to remind us of the competing duties and obligations we are subject to when appearing against unrepresented parties, in June the Bar Council, CILEx and Law Society produced ‘Litigants in Person: new guidance for lawyers’. It is well worth a read.

 

Child witnesses in Family Courts : A worthwhile update

The recent decision in Re R (children) [2015] EWCA Civ 167 is a useful reminder in what circumstances a child should give evidence and the test to be applied.

The facts of this case are noteworthy as this was an appeal by a child [GR], aged 14, arising from the Court refusing to allow her to give evidence in a Public Law case.

The Local Authority issued care proceedings in respect of GR as well as her sister, RR, aged 7. RR had autism and learning difficulties but, in contrast, GR had capacity to instruct her own Solicitor pursuant to the Family Proceedings Rules 16.29 2010.

RR made allegations that her Father had sexually abused her and her oldest sister GR. RR was ABE interviewed and repeated the allegations against her Father. GR was not ABE interviewed. At an earlier hearing GR was granted permission to file a witness statement, which stated that she was not sexually abused by her Father and she sought to give evidence to that effect.

The question for the trial Judge was whether GR should be able to give evidence. There is a culture of reluctance towards children giving evidence in Family proceedings but yet there is no assumption or starting point that children should or should not give evidence.

It must be remembered that there is a legal test to be applied, that the Court has to strike a balance, and that justice must not be forgotten whist at the same time balancing any harm to the welfare of the child.

The correct test and balancing excised to be applied when considering whether a child should give evidence is set out in Re W (Children) (Abuse: Oral Evidence) [2010] UKSC 12 by Lady Hale at paragraph 24:

When the court is considering whether a particular child should be called as a witness, the court will have to weigh two considerations: the advantages that that will bring to the determination of the truth and the damage it may do to the welfare of this or any other child. A fair trial is a trial which is fair in the light of the issues which have to be decided”.

Therefore it is clear that the Court must consider two factors. Firstly; “Determination of the truth” and Secondly; “Risk of harm to the child”.

Lady Hale amplified this further in Re W by setting out further elements to consider under those factors.

Determination of the truth: (as per paragraph 25 of Lady Hale’s Judgment)

  • “Issues it has to decide in order properly to determine the case; (sometimes it will be possible to decide the case without making findings on particular allegations)
  • The quality of the evidence;
  • What can be gained by oral evidence from the child;
  • The quality of any ABE interview;
  • The nature of the challenge;
  • The court is unlikely to be helped by generalised accusations of lying or a fishing expedition in which the child is taken slowly through the story yet again in the hope that something will turn up;
  • Focused questions putting forward a different explanation for certain events may help the court to do justice;
  • Age and maturity of the child and the length of time since the events”.

Risk of harm to the child (as per paragraph 26 of Lady Hale’s Judgment)

  • Age and maturity of the child and the length of time since the events which is the risk of harm to the child;
  • Any support the child has or the lack of it;
  • The child’s wishes and feelings about giving evidence; (An unwilling child should rarely if ever be obliged to give evidence)
  • Views of the Guardian and those with parental responsibility.

These are not exhaustive lists but are starting points for the Court and practitioners, which should be considered.  The two factors are not in opposition from each other. They are both sides of the equation. (Paragraph 13)

The error in Re R was that the Judge only considered the first factor (Determination of the truth) and entered into error by not going onto the second factor (considering the risk of harm to the child).

The Local Authority and the Guardian on appeal sought to pursuade the Court that even if the trial Judge did this, it would have been the same result.  Lady Justice King at paragraph 11 reinforced the correct application and considerations, which must be applied:

“It is common ground that the test to be applied is found in Re W (Children)(Abuse:Oral Evidence) [2010] UKSC 12 and can be summarised as follows:

  1. i) The fair balance between Article 6 rights and the Article 8 rights of the perceived victim may mean that in care proceedings a child should not be called to give evidence but that outcome, (ie that a child should not give evidence), is a result of the balancing exercise and not a presumption or even a starting point.[22]
  2. ii) The essential test is whether justice can be done without further questioning of the child [30]

iii) The court weighs two considerations:

  1. a) The advantages that the child giving evidence will bring to the determination of the truth (Limb 1).
  2. b) The damage giving evidence may do to the welfare of this or any other child (Limb 2).  

The argument by the Local Authority and the Guardian did not carry any weight on Appeal. As by not properly considering both factors the trial Judge did not consider important elements relevant to whether GR should give evidence or not.

The trial Judge failed to consider that GR was mature with no specific vulnerabilities and could have given the Court a real insight into the family home. The trial Judge also considered that it was not necessary to form a view about GR’s credibility. It must be remembered, at this point, that GR had capacity to instruct her own solicitor and had filed a statement stating that sexual abuse by her Father did not happen and RR was lying.

Having this in mind it perhaps becomes clear as to why Lady Justice King went a step further towards the end of her Judgment. She considered the evidential position of GR having filed a statement within the proceedings and therefore GR having a “sense of grievance” but also the “injustice” on Father’s part by GR not giving evidence. (At paragraph 23)

It was therefore rightly questioned what would have happened if a finding of sexual abuse was made, contrary to GR’s statement, but the Court denied GR the opportunity to give evidence. This is an issue as to GR’s credibility.

It is simply a reminder but an important one. Once GR had filed a statement, her credibility became an issue in the case.  Lady Justice King reminds us all to “…. stand back and consider the evidential burden of a witness statement under the Family Proceedings Rules…” [Paragraph 24]

Family Proceedings Rules r22.2(1):

Any fact which needs to be proved by the evidence of a witness statement is to be provided:

At the final hearing, by their oral evidence;

Further if a party –

  1. Has served a witness statement; and
  2. Wishes to rely at the final hearing on the evidence of the witness who made the statement that party must call the witness to give evidence unless the Court directs otherwise or the other party puts the statement in as hearsay evidence

It is an obvious point to make but the Court is likely to direct that a child should not give oral evidence but there must be consideration and the proper application of Re W rather than the culture of a presumption that children should not attend to give oral evidence in Family Courts.

Once the Appeal Court properly considered the application of Re W, GR was granted permission to give evidence so long as she sought to do so with the special measures that she required.

This is a worthwhile reminder that a balance needs to be struck with the correct application of the Law when considering whether children should give oral evidence in the Family Courts.

Rachael Parkhouse