This case discusses the dilemma of weighing a child’s wellbeing against the need for that child to give evidence in court, in order to provide a fair trail for the defence

Re: M (children)(interviewing children) [2008] 1 FCR 787

The facts
A local authority began care proceedings in respect of four children; twins (a boy and a girl) aged 12, a boy aged 10, and a boy aged six. During the course of the proceedings they were examined by a number of experts. The judge found that their father had been responsible for serious assaults on two of the boys, as a result of which both parents were charged with criminal offences of assault and cruelty.

The parents applied to the care judge for (1) permission for the children to be interviewed by experts with a view to the experts advising in relation to the criminal proceedings, and (2) permission for the solicitor acting for them (the parents) in the criminal proceedings to take a statement from the girl, with a view to its use in the criminal proceedings.

The judge dealt first with the proposed interview by experts, and said: ‘I asked counsel who the experts are whom they seek to instruct. Despite the fact that the application was made some weeks ago, they are unable to tell me. They seek a blanket permission for any expert of their choosing. They cannot give me the names of anybody who might have more expertise than those who have already been chosen and already reported.’ She refused this application, and then dealt with the proposed interview by a solicitor, in respect of which she said that the girl had nothing to contribute to the case and that, were she interviewed, all that would happen would be that she would renew in her mind the pain that she went through when she was separated from her family, and she refused this application.

Lord Justice Wall held that the judge had been plainly right to dismiss the application for interviews by experts. Apart from the total lack of specificity, there could in any event be no question of these children, a week before a criminal trial, being interviewed by any psychologist or psychiatrist on behalf of the defence.

Lord Justice Wall added that if the parents could, for good reason and with an identified expert, return to the judge with a well-presented and coherent case, explaining why they required a particular expert to examine the children for a particular and specified purpose, he would not shut them out from taking that course prior to the criminal trial. Turning to the proposed interview by a solicitor, he referred to Re M (minors) (solicitors’ interviews) [1995] 1 FLR 825, in which Mr Justice Hale held that an interview for the purpose of taking a statement for possible use in criminal proceedings was an ordeal that children in care should be spared if possible and that if, in the interests of allowing a parent to prepare a defence to serious charges, such an interview were necessary, it should take place in the presence of a social worker, who could protect and support the child during the procedure.

Notwithstanding the judge’s view that the girl had nothing to contribute to the case, Lord Justice Wall pointed out that she was said by two of her brothers to have been a witness to some of the assaults, and took the view that she might well have something to contribute, if interviewed and thought to be reliable.

He said: ‘The local authority has put forward a number of natural and entirely proper anxieties about the girl’s psychological state. She is, in the local authority’s perception, a damaged child. She is in care. She is having considerable difficulty in coming to terms with what has happened to her, and there is a genuine anxiety on the local authority’s part that the effect of being interviewed, let alone of giving evidence, will have a considerable impact on her.

‘Nonetheless, in my judgement, it seems to me, balancing these factors as I do, that it is entirely proper for the parents’ solicitors to wish to interview her in relation to matters specifically related to the prosecution against them. [Whether or not she gives evidence is an entirely different question, and would of course be a matter for the judge hearing the criminal trial.] In these circumstance, therefore, I  would set aside the judge’s refusal of permission for the girl to be interviewed by a solicitor. It is, however, right that there should be certain conditions imposed on the interview. It should be at a time and at a place to be chosen by the local authority, and thus at the local authority’s discretion. The girl’s social worker should be present when the interview takes place, and the interview should be conducted by the named and qualified solicitor having the conduct of the parents’ defence in the criminal proceedings.

‘The interview should relate only to matters directly relating to the criminal trial, but it does not seem to me to be appropriate for this court to seek to determine in any particular way precisely what questions are or are not asked. The social worker will be there as the girl’s social worker, and in a position to protect her. If any child protection issues arise as a result of the interview, his presence will ensure that they are appropriately dealt with on a confidential basis in care proceedings.’

As Lord Justice Wall pointed out, the court has to carry out a balancing exercise, weighing the parents’ right to a fair criminal trial against the risk of harm to the child. In a very recently reported case, chief constable of Greater Manchester v KI and KW [2008] 1 FLR 504, Mr Justice Ryder held that the court has to weight the interests of the child against the interests of justice and that unlike, for example, an application for a care order or a residence order, the child’s welfare is not the court’s paramount consideration.

Michael Segal has been a district judge of the Principal Registry of the Family Division since 1985. This is a specialist family court and about two-thirds of its work concerns disputes about children.

The cases presented here aim to help the reader understand better the nature of and the types of decision making within the court system.

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