In short the answer is yes, a child can give evidence in the family court, but only in very exceptional cases and strict guidelines must be followed. In essence the Court will look at the advantages of the child giving evidence to get to the truth of what has happened and getting the best possible evidence before the court as against the possible damage or harm to that child’s welfare from giving evidence.
Giving evidence is not the same as being represented by a lawyer
Children can be separately represented by a lawyer in the family court. This occurs automatically in care proceedings but only rarely in private law proceedings. Separate representation means that the child has their own solicitor but separate representation is not the same as the child giving evidence themselves. Where a child is separately represented they have the opportunity to put their views before the court through their solicitor and this allows them to keep their distance from the more damaging consequences of giving evidence.
A case example
In Re: W a case in the Supreme Court in 2010 this issue was considered and resulted in guidelines being issued which are followed by the courts today. The Supreme Court held that there was no longer a presumption or even a starting point against children giving evidence in such cases. It said there needs to remain a balance between protecting the child and the right that child has to a family life, as well as the rights of the parent(s) to a family life and to a fair trial under their European Convention Rights. In this case the court held that it’s more likely to be fair if the parents are allowed the opportunity to challenge the evidence against them, even if that evidence comes from a child. However, a balance should be struck between the welfare of the child, whose evidence may be challenged, and the fairness of the proceedings. So it’s a delicate balancing act.
The practical guidelines include safeguards and protections which must be followed by the Court and the lawyers before any child gives evidence. Under these guidelines the court’s main objective is to achieve a fair trial. A parent cannot just bring the child to court. An application must be made asking for permission at an early stage in the proceedings and not at the last minute. The court should then list a hearing to decide whether or not the child should give evidence and, if allowed, set out the practical steps to be taken. Involving the child in court proceedings between parents is likely to be terrifying for any child, and is potentially emotionally damaging to the child, so the court will weigh up the 23 factors set out in the guidelines before allowing the child to give evidence. Much will depend on the purpose of the child giving evidence, the issues before the court, the gravity of the allegations made, whether other evidence is available so as to avoid the child giving evidence, whether an interview by Cafcass or a social worker would be easier for the child, or whether a video link would be appropriate.
We answer more questions in the family law advice hub.