WALES/ENGLAND – Family Justice Council issues guidance on children giving evidence

The Family Justice Council has published guidelines in relation to children giving evidence in family proceedings amid reports that the number of applications is increasing.

An FJC working party – chaired by Lord Justice Thorpe, Head of International Family Justice for England and Wales – was set up following a referral from the Court of Appeal in Re W [2010] Civ 57.

The Supreme Court subsequently removed the presumption that only in exceptional cases should a child be called to give live evidence in family proceedings, in Re W (Children) [2010] UKSC 12. This is now the leading authority on the issue.

Enquiries made by the working party suggest that the number of applications for children giving evidence since the Supreme Court’s ruling may be increasing.

The purpose of the document is to provide those involved in family proceedings with advice as to what matters should be taken into account in these situations.

The guidelines point out that hearsay evidence is admissible in family proceedings.

“The issue of whether a child should be further questioned or give evidence in family proceedings should be considered at the earliest possible opportunity by the court and all the parties and not left to the party intending to so apply,” they add.

The guidelines cover:

  • Legal considerations
  • Alternatives to the child giving live evidence at a hearing
  • Practical considerations pre-hearing
  • Practical considerations at hearing
  • Examination of children

The guidelines stress that all advocates have a responsibility to manage the questioning of a child witness fairly.

However they add that the ultimate responsibility for ensuring that the child gives the best possible evidence in order to inform the court’s decision rests with the tribunal.

“It should set out its expectations of the advocates and make it clear to the child witness that they can indicate to the court if they feel they are not saying what they want to say or do not understand what is being said to them,” the guidelines say.

They add: “The court must be scrupulous in the attention it gives to the case management and control of the questioning process and should be prepared to intervene if the questioning is inappropriate or unnecessary.”

A copy of the guidelines can be downloaded here.

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