Should children give evidence in distressing family cases?

Atifha Aftab

Article written by Atifha Aftab, Family Solicitor

Family Judges are always encouraged to listen to the ‘voice of the child’ but at times, this can be highly distressing. Is it right that children should give evidence and be subject to cross-examination? As a High Court ruling showed, the answer to that question requires, in each case, the striking of a delicate balance.

At a forthcoming trial, a Judge was required to make findings as to the circumstances in which a young child suffered life-changing injuries. An issue arose as to whether the child’s three older siblings – aged 15, 14 and 13 – should give evidence. All of them were present in the family home when the injuries were sustained.

Ruling on the matter, the Court noted that the primary objective was to achieve a fair trial. The evidence that the children would give was likely to be of real forensic value and the outcome of the fact-finding hearing would change their lives forever. On the other hand, there was a risk that the experience of giving evidence would be detrimental to the children’s welfare and ongoing family relationships.

The older children had been assessed as competent to instruct their own solicitors but the youngest had not. It was clear, however, that all three wanted to give oral evidence so that their voices would be heard. They were bright youngsters and the process of giving evidence had been carefully explained to them.

Weighing up all the factors, the Court concluded that it was appropriate that all three children be called to give evidence. Careful measures would be taken to minimise the potential trauma of the experience. They would not be subject to ‘traditional’ cross-examination techniques and their evidence would be recorded before they underwent questioning in court. They would additionally be invited to meet the Judge in private the day before giving their evidence.

To discuss the contents of this update further or for advice on a specific family law matter, please feel free to email me or contact the Grant Saw Family department on 020 8858 6971.