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Should children be witnesses in family proceedings?

View profile for Sarah Pennicott
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When a couple goes through a separation or divorce, it will be an exceptionally trying time for all concerned, but when children are involved it can become even more emotionally difficult.  Depending on the nature of the dispute, children could feel they are in a position where they must choose between their parents, they could be used as leverage and their whole routine and way of life will change.  The decision may even be out of the parent’s control, if the Local Authority is involved and the children are at risk of being removed from the parents care. 

In either of these situations cases can go to Court, if decisions can not be made in family mediation for example, and children can sometimes be called to give evidence.  What are the consequences of this on both the case, but more importantly on the children themselves?

The issue of whether children should give live evidence in family proceedings is rarely given the consideration it deserves. The area is a minefield that requires the court and the parties to partake in a careful balancing act which rarely falls down in favour of the child giving evidence. Due to historical pre-conceptions against children giving evidence, the advantages are rarely looked at even where they would outweigh the disadvantages.

What is the law of children giving evidence?

There are many cases involved this consideration, but the leading one holds that there is no presumption either in favour of or against children giving evidence. Although there is no presumption, the parties and the court must apply the general test which involves considering:-

(i)      The advantages that the children giving evidence will bring to the determination of the truth; and

(ii)     The extent of damage being a witness will cause to the welfare of the child.

To fully appreciate the above, further factors must be considered including whether the evidence is necessary, what other evidence the court has and the amount of time that has lapsed since the events in question, as well as the age and maturity of the child, family support available and the risk of delay. The matter of whether children can give evidence is therefore very fact specific, and the court who has the ultimate discretion must always apply a balancing act in the interests of achieving a fair trial.

Even where the advantages to the determination of the truth suggest the child should give evidence, there are still further considerations as to practicalities and safeguards which must be taken into account.  These include the ways in which questions are put to the child, who should ask the questions, as well as support that can be provided to the child before, during and after the hearing such as a familiarisation visit. After all, it would be counter-intuitive to put the child through a stressful and confusing situation, as this would not be conducive to obtaining best evidence.

What is the reality of children giving evidence?

It is still the case that children rarely give evidence in family proceedings. Instead, it is most common for third party professionals such as Guardian’s to interpret and present the children’s views to the court. Furthermore, it is often the case that the court and the parties do not consider the issue early enough in the proceedings, and therefore the court is unable to facilitate it.

What about the children?

It is interesting that the general test only requires the parties and court to consider the advantages that the child giving evidence will bring to the determination of the truth, and not the advantages to the child themselves. Although it is not part of the balancing act in order to consider how to best achieve a fair trial, it should still be an important consideration that is in the back of the parties’ minds. At the Association of Lawyers for Children Annual Conference in 2015, Baroness Hale listed the following reasons why it may be advantageous for children to give evidence:-

  • It may give their wishes and feelings weight as the Judge is able to see the child as a real person.
  • In being involved, the child may feel their views are being respected and valued.
  • It is an opportunity for the child to understand the proceedings and find out more about what is going on.
  • Children often have a clear idea of what they think is right, and it may be beneficial to feel as though they have had the opportunity to make their feelings known.
  • It may be beneficial for parents to see that their child’s opinions are being taken into account.

“Despite the above, the court will predominantly consider the vulnerability of the child, the length of time since the event, the fact that best evidence may not be achieved in such a stressful environment and the difficulties a child may have if they are making accusations,” explains Sarah Pennicott Family Solicitor. “Although there is no presumption in favour or against a child giving evidence, it is clear that the court has a very difficult job in balancing the factors. Therefore it is not a surprise that children rarely give evidence in family proceedings.” 

If you’re going through a divorce and separation, or you're concerned your children could be removed from your care, our Family team can offer impartial advice that has the best interests of you and your family at heart.  To contact the team, simply call 02380 717431 or visit our website here.

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.