Recent guidance from the Court of Appeal about child witnesses within family proceedings. Anthony Kirk QC and Charlotte Hartley acted for the successful mother.

Re B (Child Evidence) [2014] EWCA Civ 1015

The appeal was brought by the father of C, who was the subject of his application for child arrangements orders. The mother opposed all forms of contact with the father citing allegations of serious domestic violence and the father’s psychiatric ill health. The mother sought to rely on evidence from her older daughter, C’s half-sister, G, who was 13 years old. The father opposed any form of evidence being adduced from G. The Circuit Judge directed a CAFCASS Officer to meet with G and to prepare a report in relation to the appropriateness of her giving evidence, and, if satisfied it was in the interests of her welfare, then to put questions prepared by the parties to her. The father appealed this decision, arguing that it was contrary to the decision of the Supreme Court in Re W [2010] UKSC 12 and the recommendations of the Working Party of the Family Justice Council Guidelines December 2011 [2012] Fam Law 79.

The father’s appeal was refused. In the Judgment of the Court given by Lady Justice Black guidance was given as to when and how children may be called to give evidence within family proceedings.

The Court considered and applied the balancing exercise established in Re W between the forensic advantage of additional evidence against competing issues of welfare. G was not a subject child so her welfare was not paramount but it was nonetheless a relevant consideration.

The Court further considered the approach to be applied when appeals are brought at an interlocutory stage and reiterated the endorsement given in Re TG (Care Proceedings: Case Management: Expert Evidence) [2013] EWCA Civ 5 to “first instance judges who make ‘robust but fair case management decisions’.”

This case follows a handful of significant appeals concerning the voice of children within proceedings (most notably Re KP (A Child) [2014] EWCA Civ 554 and Re LC (Reunite: International Child Abduction Centre Intervening) [2014] UKSC 1). On 9th June 2014 in his 12th View from the President’s Chambers, Sir James Munby P announced the formation of a Children and Vulnerable Witnesses Working Group, which shall formulate fresh guidelines in relation to children giving evidence and meeting with judges. The Working Group is expected to publish an interim report in the next few weeks.