W (Children), Re

W (Children), Re

The appeal was dismissed because the judge correctly applied binding Court of Appeal jurisprudence, which establishes that it is rare and undesirable for children to give oral evidence in care proceedings. The judge balanced the relevant factors, including the seriousness of the allegations, the potential harm to the child, and the rights of the parties, and her discretionary decision was not plainly wrong. The jurisprudence was not per incuriam and did not require reconsideration in this case, though the court suggested the issue merits wider review.

Parties
Appellant: Father; First Respondent: Hampshire County Council; Second to Sixth Respondents: Five children (by their Children’s Guardian); First Respondent (mother of the Children): Mother
Jurisdiction
England and Wales
Judgment Date
09 February 2010
Procedural Posture
Appeal (care Proceedings) / Appeal From Interlocutory Order Refusing to Compel Child to Give Oral Evidence
Outcome
Appeal dismissed
Legal Topics
Care Proceedings, Child Witnesses, Oral Evidence, Cross Examination, Case Management Discretion, Article 6 ECHR (fair Trial), Article 8 ECHR (family Life)
Family Law Child Protection Care Proceedings Child Witnesses Oral Evidence Cross Examination Case Management Discretion Article 6 ECHR (fair Trial) +1 more

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Parties

Father

Appellant

Hampshire County Council

First Respondent

Five children (by their Children’s Guardian)

Second to Sixth Respondents

Mother

First Respondent (mother of the Children)

Procedural Posture

Appeal (care Proceedings) / Appeal From Interlocutory Order Refusing to Compel Child to Give Oral Evidence

Legal Issues

  1. 1 Whether the court should order a 14-year-old child to give oral evidence and be cross-examined in care proceedings where her allegations are central to the case against the father
  2. 2 Whether the refusal to order oral evidence infringes the father's right to a fair trial under Article 6 ECHR
  3. 3 Whether the established jurisprudence on child witnesses in family proceedings is compatible with Convention rights

Ratio Decidendi

The appeal was dismissed because the judge correctly applied binding Court of Appeal jurisprudence, which establishes that it is rare and undesirable for children to give oral evidence in care proceedings. The judge balanced the relevant factors, including the seriousness of the allegations, the potential harm to the child, and the rights of the parties, and her discretionary decision was not plainly wrong. The jurisprudence was not per incuriam and did not require reconsideration in this case, though the court suggested the issue merits wider review.

Court Disposition

Appeal dismissed

Orders

  • The appeal against the refusal to order the child to give oral evidence is dismissed.
  • No order for the child to give oral evidence or be cross-examined in the care proceedings.