The criminal courts in England and Wales have now become fairly proficient in receiving the evidence of child witnesses. A series of guidance notes, protocols and practices have consistently served to improve the quality of such evidence and allow it to stand up to the pressures of the most intense scrutiny. Technically there is no lower age limit but obviously, the younger the witness, the more anxious the CPS will be about seeking to rely on it. In the family courts the approach is slightly different as the court is obliged to, in effect, carry out a balancing exercise which considers probative value on the one hand and the child’s welfare on the other.
Let’s say, for example, that X would like the family court to hear evidence from Y, her 13 year old daughter, who has witnessed serious incidents of domestic violence, allegedly involving Z her father. Y’s welfare in these circumstances is only ‘paramount’ if she is also the subject of the proceedings. If she is not, then her welfare will still be given ‘great weight’ although it does not take precedence over other factors. However in those circumstances the court would still need to satisfy itself that the advantages of Y giving evidence are not outweighed by the disadvantages. Put more cleverly by one of our learned judges, the court will need to balance ‘the advantages that [hearing the child’s evidence] will bring to the determination of the truth and the damage it may do to the welfare of this or any other child’. To assist, the court may well seek Z’s views as well as X’s views, but it may also call upon professional assistance from a CAFCASS officer or even a child psychologist. This is important as young evidence may have mature outcomes. The balancing exercise is one that is undertaken with reference to steps that may be taken to improve the quality of the child’s evidence and decrease the risk of harm to the chilld. For example a child’s evidence may be received via videolink or the language of challenges may be simplified.
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