The cases presented here aim to help the reader understand better the nature of and the types of decision-making within the court system.
The mother of a 10-year-old girl told her school that her father when drunk had physically abused her. When interviewed on video by a police officer in the presence of a social worker, the child alleged that her father had abused her physically and sexually. The father denied any improper behaviour. The mother again alleged that the father had abused the child physically and sexually. The child, again interviewed on video, said that the father had been physically violent to her, and that she was afraid of him. Then the mother retracted her allegations against the father. She said that everything that she had said against him had been untrue, and that she had told the child to make false allegations against him in order to put pressure on him to give up alcohol and smoking. The local authority did not accept the mother’s retraction. It began care proceedings. Both parents denied that any abuse or misconduct had occurred. The child, who knew that the mother had retracted her allegations against the father, was very attached to the mother and wanted to live with her. The allocated social worker and the guardian took the view that it would not be proper to make any attempt to find out from the child whether or not she had spoken the truth at the video interviews. Thus, at the commencement of the care hearing nobody knew what the child, if asked, would say about the truth of her allegations.
The mother, supported by the father, applied to the trial judge for an order that the child give evidence via video link. The guardian and the local authority opposed the application on the grounds that it was inappropriate and oppressive for so young a child to give evidence. The judge said that during the video interviews the child had appeared nervous but not distressed, and ordered that she should give evidence via a video link, on the grounds that if a child may be questioned in court without suffering damage, then normally the child may be questioned, that in the circumstances of this case, the child could be questioned without suffering damage, and that he needed her evidence in order to conduct a fair trial. The guardian appealed.
The appeal was dismissed, but the Court of Appeal found it a difficult and borderline case. Smith LJ referred to an earlier case in which Butler-Sloss LJ said:
‘Research has shown the adverse effects upon some children of the requirement to give evidence in cases of sexual abuse. In cases of young children, such harm may well be inferred. The introduction of the video link clearly envisages an alternative to oral evidence and cross-examination, and to make it possible for children making allegations of, inter alia, sexual abuse to do so without the additional stress of a court hearing. The philosophy behind the Children Act would be thwarted by the ability of the alleged abuser himself being able to require the attendance of the child at court. A court should be very cautious in requiring the attendance of a child in these cases, reinforced as it must be by considerations as to how to deal with a refusal to give evidence after the issue of the summons.’
Smith LJ referred to the damage which can be done to a child by subjecting her to the trauma of questioning by a stranger whose task is to attack her truthfulness in the supremely sensitive area of sexual abuse, particularly where, as in this case, the child would either have to admit that she had told lies herself, or else have to accuse her mother of lying, and said that the mere fact that the child does not now have to stand in the witness box is an advance, but does not go to the heart of the problem of the psychological effect on the child. The Court of Appeal accepted the guardian’s argument that the trial judge had been wrong in law in holding that ‘normally’ the child may be questioned. It said that the correct starting point is that it is undesirable that a child should have to give evidence in care proceedings, and that particular justification will be required before that course is taken. There will be some cases in which it will right to make an order, but such cases will be rare. In considering whether to make an order the judge will have to balance the need for the evidence in the circumstances of the case against what he assesses to be the potential for damage to the child. He should take account of the importance of the evidence in the process of his decision about the child’s future. It may be that the child’s future cannot be satisfactorily determined without that evidence.
In assessing the risk of harm or oppression the judge should take heed of current research into the effect on children of giving evidence, and should not rely only upon his impression of the child, although that will of course be relevant. On the facts of this particular case the Court of Appeal considered that the judge had exercised his discretion correctly.
This type of case depends very much on its facts (and the facts of this particular case were unusual), ie on the age and temperament of the child, the importance of the child’s oral evidence in the interests of justice, and all the circumstances of the case. The judge has a wide discretion. Provided that he exercises it in accordance with the Court of Appeal guidance in this case, his decision will not be overturned on appeal.
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.