Introduction

The case of W (Children) Re (Rev 2) [2010] UKSC 57 addresses the delicate balance courts must maintain when considering whether to order a child to give evidence in family proceedings. This judgment, delivered by Lady Hale of the UK Supreme Court, explores the overarching principles guiding judicial discretion in such matters, emphasizing the child's welfare and the potential harm that court testimony may inflict.

The primary parties involved are Charlotte, a 14-year-old girl alleging sexual abuse by her de facto father, and the local authority responsible for her care. The father faces multiple allegations of abuse, leading to care proceedings aimed at safeguarding the children involved. The core issue revolves around whether Charlotte should be compelled to testify in the upcoming fact-finding hearing.

Summary of the Judgment

The Supreme Court upheld the traditional reluctance to compel children to give evidence in family proceedings unless exceptional circumstances justified such action. Lady Hale reaffirmed that the primary objective is to minimize trauma to the child, aligning with precedents that consider the potential harm against the necessity of the evidence for determining the child's welfare.

The court emphasized that while the existing law presumes against requiring a child to testify, this presumption must be rebutted by compelling justifications. The judgment underscored the need for a fair balance between the child's right to protection and the rights of other parties involved, advocating for a case-by-case assessment rather than a rigid starting point.

Ultimately, the Supreme Court allowed the appeal, remitting the decision back to the lower court to reconsider whether Charlotte should testify, taking into account the nuanced factors outlined in the judgment.

Analysis

Precedents Cited

The judgment extensively referenced key precedents that have shaped the approach to child testimony in family proceedings:

• LM v Medway Council, RM and YM [2007] – Established the presumption against ordering a child to testify, highlighting the necessity of balancing evidence needs against potential harm.
• R v B County Council, ex parte P [1991] and Re P (Witness Summons) [1997] – Earlier authorities supporting the protective approach towards child witnesses.
• Re W (children: concurrent care and criminal proceedings) [2009] – Reinforced the rarity of ordering child testimony in care proceedings.
• Huang v Secretary of State for the Home Department [2007] – Discussed proportionality in balancing competing rights, influencing the approach to child testimony.
• SN v Sweden (2002) – Addressed the balancing of Article 6 (fair trial) and Article 8 (right to respect for private and family life) under the European Convention on Human Rights (ECHR).

These precedents collectively emphasize a judiciary cautious of compelling child testimony, prioritizing the child's welfare over procedural necessities.

Legal Reasoning

Lady Hale's legal reasoning is grounded in the principles of the European Convention on Human Rights, particularly Articles 6 and 8. She articulates that:

• Article 6 ensures a fair hearing, including the right to present and challenge evidence.
• Article 8 safeguards the right to respect for private and family life, which encompasses protection from psychological harm.

The court must balance these competing rights, ensuring that the child's evidence can be obtained in a manner that does not inflict additional trauma. Lady Hale asserts that although the evidence might be crucial for determining the child's welfare, the potential harm to the child must weigh heavily against its necessity.

Importantly, the judgment moves away from the existing presumption against child testimony as a starting point. Instead, it posits that each case should be assessed on its merits, considering factors like the child's age, maturity, the reliability of existing evidence, and the feasibility of minimizing harm if the child is called to testify.

Impact

This judgment has profound implications for future family proceedings in the UK:

• It reinforces the necessity for courts to undertake a nuanced, case-by-case analysis when considering child testimony, rather than adhering strictly to the presumption against it.
• It potentially opens the door for more frequent, yet still controlled, instances where children might be compelled to testify, provided that robust safeguards are in place to protect their welfare.
• It underscores the need for multidisciplinary approaches in evaluating the appropriateness of child testimony, possibly leading to more collaboration between legal professionals and child welfare experts.
• It aligns UK family law more closely with ECHR standards, ensuring that both Articles 6 and 8 rights are adequately balanced.

Additionally, this decision might influence legislative reforms aimed at clarifying or modifying the procedures surrounding child testimony in family courts.

Complex Concepts Simplified

To ensure clarity, several legal concepts within the judgment can be further explained:

• Achieving Best Evidence (ABE): A structured interview process designed to elicit reliable testimony from vulnerable witnesses, including children, without the need for live court testimony. It involves open-ended questioning in a supportive environment.
• Article 6 and Article 8 Balancing: Under the ECHR, Article 6 pertains to the right to a fair trial, while Article 8 relates to the right to respect for private and family life. Balancing these involves ensuring that the right to a fair trial does not unduly infringe upon personal and family privacy and vice versa.
• Special Measures: Procedural safeguards designed to assist vulnerable witnesses in providing evidence without undue stress or harm. Examples include video links, intermediaries, and pre-recorded testimony.
• Proportionality Test: An analysis to determine whether an interference with a right is necessary and proportionate to achieving a legitimate aim, balancing the benefits against the potential harms.

Conclusion

The Supreme Court's decision in W (Children) Re (Rev 2) [2010] marks a significant evolution in the approach to child testimony within family proceedings. By challenging the entrenched presumption against compelling child evidence, the judgment advocates for a more flexible, balanced assessment that prioritizes the child's welfare without disregarding the necessity for truthful and comprehensive evidence.

This ruling underscores the judiciary's commitment to protecting vulnerable children while ensuring that justice is served. It calls for courts to adopt innovative measures that can facilitate child testimony in a manner that minimizes trauma and respects the child's rights, thereby enhancing the fairness and effectiveness of family justice proceedings.

Moving forward, legal practitioners and family courts will need to meticulously evaluate each case's unique circumstances, leveraging multidisciplinary insights to safeguard the interests of all parties involved, particularly the children at the heart of these proceedings.