W (Children), Re

Factual and Procedural Background

The case arises out of public-law care proceedings concerning five siblings: a 14-year-old girl (“Child A”), her 17-year-old sister (“Child B”), and four younger half-siblings aged 8, 7, 3 and 18 months. In June 2009 Child A alleged that her step-father (“Appellant”) had sexually abused her on multiple occasions. Earlier police investigations in 2006 and 2008 had not resulted in charges, but the 2009 allegation led to an Achieving Best Evidence (ABE) interview, medical examination and forensic enquiries. The Appellant now faces 13 criminal charges and is on bail.

Following the allegation, all children were placed in foster care. The four younger children were briefly returned to their mother (“Mother”) under an order excluding the Appellant from the home, but were removed again after the Mother arranged unauthorised contact with him. The local authority (“Respondent”) seeks protective orders; the children’s guardian supports that application.

At a September 2009 case-management hearing the parties initially agreed to a separate fact-finding hearing at which Child A would give live evidence by video link. After reviewing police disclosure, the Respondent decided to rely solely on Child A’s ABE interview; the Appellant applied for her to be called for live cross-examination. On 30 November 2009 the trial judge refused the application. The Court of Appeal dismissed the Appellant’s appeal but invited wider reconsideration of the governing principles. The present Supreme Court-level judgment responds to a further appeal and reassesses the legal test for calling children to give evidence in family proceedings.

Legal Issues Presented

1. Whether the prevailing “starting point” that it is undesirable for a child to give oral evidence in care proceedings is compatible with the European Convention on Human Rights, particularly Articles 6 and 8.
2. What principles should guide a family court when exercising its discretion to require a child witness to give live evidence.
3. Whether, on the facts of this case, Child A should be required to give live evidence at the imminent fact-finding hearing.

Arguments of the Parties

Appellant's Arguments

• The existing presumption against child testimony gives insufficient weight to all parties’ Article 6 rights to a fair hearing.
• The court should conduct an “intense focus” balancing exercise, as described by Judge Steyn in In re S, rather than start from a position that calling a child is rare.
• Without live cross-examination the Appellant cannot properly challenge Child A’s allegations, potentially leading to unjust findings that separate him from his children.

Local Authority's Arguments

• Care proceedings exist to protect children; compelling them to testify risks re-traumatisation, undermining that protective aim.
• Current research (considered by the 1989 Pigot Report and subsequent studies) still supports the view that giving evidence is harmful to children; change should await fresh multi-disciplinary evidence.
• Hearsay rules already permit Child A’s ABE interview to be admitted, providing the court with sufficient material to reach findings without her live evidence.

Guardian's Arguments

• Any decision to call a child should be addressed proactively at the earliest case-management stage, not left to ad hoc applications.
• An unwilling child should rarely, if ever, be obliged to testify.

Table of Precedents Cited

Court's Reasoning and Analysis

The court held that a presumption against child testimony is incompatible with Convention jurisprudence. Article 6 demands overall fairness, normally including the opportunity to challenge adverse evidence, while Article 8 requires respect for the child’s welfare and psychological integrity. Therefore the task is to balance competing rights, not to start from a position of presumed undesirability.

In reformulating the test, the court set out a two-stage analysis:

1. Utility to Fact-Finding. Consider the importance of the child’s oral evidence to resolving the live issues, the existing evidential picture (e.g., quality of ABE interviews), and whether focused questioning could realistically assist the court.
2. Risk of Harm. Assess potential trauma to the child, taking into account age, maturity, support systems, wishes and feelings, delay, and any overlap with criminal proceedings. General research on the harmful effects of testimony remains a relevant evidential backdrop.

The court emphasised that steps to improve evidence quality often also reduce harm—for example, early video-recorded cross-examination, live link, or questions filtered through an intermediary or the judge.

The approach applies equally in public-law and private-law family cases, though private disputes may pose additional risks (e.g., allegations advanced for tactical advantage, prevalence of self-represented parties).

Applying these principles, the justices concluded that the first-instance judge’s decision had been structured around an incorrect legal starting point. Because the appellate court lacked critical materials (including the ABE videos), it could not safely re-exercise the discretion and therefore remitted the matter.

Holding and Implications

APPEAL ALLOWED; the question whether Child A should give live evidence is remitted to the trial judge for reconsideration in light of the new legal framework. The fact-finding hearing scheduled to begin on 8 March 2010 must proceed without further adjournment.

Implications: the judgment abolishes the long-standing presumption against calling children in family proceedings. Courts must now conduct a structured, rights-based balancing exercise, which is expected to usually result in children not being called, but only after analysis rather than by default. The decision does not create new statutory rules but reshapes judicial discretion, signaling that practice directions and case-management protocols may need revision to accommodate earlier, proactive consideration of child testimony and expanded use of special measures.