In the final blog of our series covering the Brad Pitt and Angelina Jolie relationship difficulties making headlines around the world, Senior Associate Nicola McDaid discusses the very difficult topic of children giving evidence in court.
Angelina Jolie and Brad Pitt‘s son Maddox has testified against his father during the couple’s contentious divorce and custody battle – offering a “not very flattering” opinion about the actor.
When a couple goes through a separation or divorce, it can be an exceptionally difficult time for all concerned, but when children are involved it can become even more emotionally challenging.
The issue of whether a child should give evidence in proceedings should be considered at the earliest opportunity by the Court and all parties. This decision will depend on the purpose of the child giving evidence, the significance of the allegations made and whether other evidence is available.
This is not commonplace and every case will be different, so specialist advice on this issue is crucial.
Following the leading case of Re W (Children) [2010] UKSC 12 and again reiterated by McFarlane LJ in E (A Child) [2016] EWCA Civ 473, the Court’s main objective is to achieve a fair trial. With this objective, the Court must weigh up two considerations to a child giving evidence in Court. They must consider:
* the advantages that it will bring to the determination of the truth
* the damage it may do to the welfare of the child.
In determining these considerations, the Court must have regard to:
* the child’s voice, age, needs, maturity, vulnerability, abilities
* the nature of the allegations
* the quality and importance of the child’s evidence
The Court must always take into account the risk of harm which giving evidence may do to the child and how to minimise that harm. Section 1(3) of the Children Act 1989 sets out a checklist of factors the Court is required to take into account when making a decision which affects the welfare of a child. The Court will also need to take into account practical and procedural issues, such as:
* giving the child the opportunity to refresh their memory
* the type and nature of the questions
* the appropriate identification of the questioner, as one person is generally identified to ask agreed questions of the child.
A child generally does not give evidence to the Court in the same way as an adult would.
The court also needs to look at what other evidence may be available. The child may have given an interview to the police for example. If so, the Judge may need to view the interview before making any decision as to whether a child should give oral evidence to the Court.
Following the case of Re W, 12 guidelines were issued. They were specifically designed to assist the Courts in deciding whether it is appropriate for a child to give evidence.
If there are criminal proceedings in which the child has given interviews, then there needs to be a close liaison between the criminal and family Courts so as to avoid any prejudice to either set of proceedings.
As can be seen is it a complex area to navigate and for children, giving evidence in court can be a frightening experience for them; all factors need to be taken into account not only to ensure that the case is dealt with justly but also to protect and minimise any emotional damage that could be caused to children who go through this experience.
At McAlister Family Law we have an experienced team of family lawyers specialising in this area, who are passionate in ensuring that the voice of the child is heard but also ensuring that they are protected wherever possible.
