Sun | Aug 20, 2017

Laws of Eve | Should children give evidence in family proceedings?

Published:Monday | August 1, 2016 | 8:00 AM

In court proceedings, the difficult question sometimes arises as to whether a child should be called to give evidence. Particularly in family proceedings, where the welfare of the child is the primary concern of the court, and there is contradictory evidence from the parents or other witnesses, the court my be inclined to hear from the child. However, it is rare for children to be called.

In the case of W (Children) [2010] UKSC 12, Lady Hale provided useful guidance for judges who are faced with the challenging issue. She accepted that "[t]he near-contemporaneous account, given in response to open-ended questioning, in relaxed and comfortable surroundings, is considered inherently more likely to be reliable than an account elicited by formal questioning in the stressful surroundings of a courtroom months, if not years, after the event."

 

COURT'S CONSIDERATIONS

 

According to Lady Hale, the court must weigh two considerations: (1) the advantages that it will bring to the determination of the truth and (2) the damage it may do to the welfare of this or any other child.

At paragraph 27, Lady Hale said:

"It does not assume that the most reliable account of any incident is one made from recollection months or years later in the stressful conditions of a courtroom. Nor does it assume that an 'Old Bailey style' cross examination is the best way of testing that evidence ... . A family court would have to be astute both to protect the child from the harmful and destructive effects of questioning and also to evaluate the answers in the light of the child's stage of development."

At paragraph 28, she went on to say:

"The important thing is that the questions which challenge the child's account are fairly put to the child so that she can answer them, not that counsel should be able to question her directly. One possibility is an early videoed cross examination ... Another is cross examination via video link. But another is putting the required questions to her through an intermediary. This could be the court itself."

 

GUIDELINES

 

Even in the face of such guidance from the court, in jurisdictions such as Western Australia, attorneys are required to adhere to the following guidelines:

(a) Counsel should address the child by the name that they prefer. This is usually their first name;

(b) Questions should be short and simple;

(c) The witness should be given adequate time to answer the question;

(d) An answer should not be interrupted;

(e) The tone of questions should not be intimidating, annoying, insulting or sarcastic;

(f) Legalese should be avoided and vocabulary should be age appropriate;

(g) A young child should not be accused of lying - 'incorrect' or 'wrong' are preferable;

(h) Counsel should avoid repetition or mixing subjects;

(i) In cases where the witness is clearly incapable of answering the questions, counsel should consider varying the approach or abandoning the cross examination.

Ultimately, the ends need to justify the means. That is to say, children should not be required to give evidence in family proceedings unless the two considerations are satisfied; and care should be taken to avoid having a reluctant child testify in court.

• Sherry Ann McGregor is a partner and mediator in the firm of Nunes Scholefield DeLeon & Co. Please send questions and comments to lawsofeve@gmail.com or lifestyle@gleanerjm.com.