Director Rita Gupta discusses the delicate and often contentious issue of children appearing as witnesses in family law cases.
It’s always difficult to make the call, but in some cases, evidence given by a child may be important for a family matter to be decided in court. In the past, it’s been an unwritten assumption that asking a child to give evidence is a very last resort, and involves balancing:
- Any affect it might have on the welfare of the child giving evidence
- The benefit to the case in getting to the truth with
It’s an issue that Baroness Hale, Deputy President of the Supreme Court, has addressed and tried to resolve, saying:
“Striking the balance in care proceedings may well mean that the child should not be called to give evidence in the great majority of cases, but that is a result and not a presumption or even a starting point.”
So, yes, a child can be called to give evidence but, and it’s a big but, this does assume certain things, not least of which is the child’s age and understanding of events. As Baroness Hale said:
“A family court would have to be astute… to evaluate the answers in the light of the child’s stage of development.”
This leads to perhaps the most important consideration of all. Most of us are aware that children can give evidence via video link, but will their answers actually be useful?
In an article for Family Law Week, barrister Damian Stuart tackles the real issue behind child witnesses – the questions they are asked. Studies taken over a nine-year period (1) show that over half of child witnesses do not understand the questions they are asked. What’s more, half of child witnesses do not tell the court when they have difficulties understanding the questions. 5% of child witnesses thought the lawyers were being sarcastic, rude or aggressive.
So, we have the potential for a child witness to be overawed by the occasion AND also not fully understanding what they are being asked. Add in a legal professional’s tendency to use long phrases, or repeat questions to try and elicit an answer, and it’s not a recipe for a reliable testimony.
In 2012, the Judicial College published guidelines for the cross-examination of children, which suggested that judges should ensure that children are asked simple questions, one at a time, and that the questions are suitable for the child’s state of development. Lawyers should also speak slowly and give children enough time to answer.
The article quotes the guidelines given to judges in Western Australia which are similar to the UK, but just go that little bit further:
(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.
These Western Australian guidelines should be a blueprint for cross-examination of any witness of any age, as the guidelines address the most important issue of all; clarity. After all, if a question is not clear, how can the answer be clear either?
AT LGFL, we do our best to resolve family disputes and divorce cases without the need for court appearances. However, if a court case is required, then clients should not shy away from it, and we will be there to fight your case in the best possible way.
And if a child can help with their viewpoint and evidence in a family court, then we would not dismiss the possibility. We would sincerely hope any judge would follow the guidelines and ensure the experience is as stress-free as possible. Rest assured, as a parent myself, I would never put a child in a situation I did not think they could cope with.
Similarly, many clients face the thought of giving evidence at a final hearing with dread, something which we can help support and guide you through.
If you’d like to discuss any legal family issue in complete confidence, call us. Our Hampshire countryside offices provides a calm and discreet place to meet, talk through your situation, and suggest ways forward. We offer a free 30-minute consultation for those living within a 30 mile radius of our Eversley offices, and we’d be delighted to see you in person, or via Skype if you prefer.
(1) Surveys undertaken between 2001 and 2009 by Plotnikoff and Woolfson