Can children be called as witnesses in family proceedings?

Children can be called as witnesses in family proceedings, however, the Children Act 1989 governing this area of law does not set a clear minimum age. Of course, giving evidence will depend on many factors, not least the child’s age and understanding of the situation.

Ultimately, the court will make the final decision as to whether a child gives oral evidence in court, taking into account a variety of things including achieving a fair trial, and balancing the possible advantages for the case against the risk of harm. This article discusses the circumstances, considerations, and best practice when a child is called as a witness in family proceedings.

What are the checklist of factors the court must consider?

Alongside the balancing exercise and weighing up the potential advantages a child will bring to determining the truth against the potential damage to the child’s welfare, the court must also have regard to:

• The wishes and feelings of the child, particularly their willingness to give evidence. The court’s view here is that an unwilling child should rarely, if ever, be compelled to give evidence.
• The needs and abilities of the particular child
• The issues to be determined
• The nature, gravity, and source of the allegations
• Whether the case depends on the child’s allegations alone
• Any corroborative evidence
• Quality and reliability of the existing evidence
• Reliability and quality of any ABE (Achieving Best Evidence) interview
• Whether the child has retracted the allegations
• The nature of any challenge a party to the proceedings wishes to make
• The child’s age – generally speaking, the older the child, the better
• The child’s maturity, vulnerability and understanding, capacity and competence.
• The length of time since the allegations/events occurred
• The support/lack of support the child has
• The importance and quality of the child’s evidence
• The right to challenge the evidence
• Whether justice can be done with no further questioning of the child
• The risk of delay
• The views of any appointed guardian who has discussed the issue with the child and those with parental responsibility

What sort of questioning will my child experience in family proceedings?

If the child gives evidence, the court and all parties should follow the Good Practice Guidance in managing young witness cases and questioning children issued by the NSPCC, and the judgment in R v Barker [2010], which called for the advocacy to be adapted “to enable the child to give the best evidence of which he or she is capable”. In addition, any questioning should:

• Be at the child’s pace and a level they can understand
• Use simple common words and phrases
• Frequently repeat names and places
• Ask one short question or introduce one idea at a time
• Give the child the subject of the question, following a structured approach
• Avoid negatives, suggestion, or leading questions
• Check the child’s understanding
• Be slow and allow sufficient time to answer

What alternatives are there for a child giving evidence in family proceedings?

It is only natural for a child to feel nervous and apprehensive if they have to give live evidence in court. But there are things you can do to help. No one knows your child better than you, and if they are feeling anxious, you should inform the court because there may be a different way for them to give evidence. These are called “special measures” and can include TV link testimony, courtroom screens, evidence given in private, removal of wigs and gowns, using visually recorded evidence or using an intermediary.

Although there is no presumption in favour of a child giving evidence, the court has a difficult job to balance all factors. So, it is unsurprising perhaps that, in reality, children rarely give evidence in family proceedings.

If you are concerned about your child and the possibility of them giving evidence and you require legal advice to understand your options, contact specialist divorce solicitor Naheed Taj. Naheed is a highly acclaimed family law solicitor with a successful track record in dealing with complex and challenging family law cases.