“Seen but now heard”

How could anyone make Re W (Children) 2010 UKSC 12 and the 2011 ‘Guidelines in relation to children giving evidence in family proceedings‘ -interesting?

Well, tonight in Middlesbrough in her fascinating lecture opening the Dere Street Barristers Lecture Season, Gillian Irving QC did exactly that.

For decades we have shied away from the prospect of children being called to give evidence in family proceedings. We have fallen behind the criminal bar, where wigs have been removed and video examination skills have been honed. Gillian’s presentation updated the approach of family courts, from LM (A Child, by her Guardian) v Medway Council & RM & YM (2007) EWCA Civ 9, through to RE X (a child) (2011) EWHC 3401.

The topic raised by Gillian Irving raises a number of controversial questions.

First, the real effect on the child of giving evidence in family proceedings. This appears to be a significantly under-researched issue. Where courts are under  a duty to balance justice, fairness and the protection of child witnesses, it would seem that this particular topic should be properly evaluated. The blogger is not aware of more than anecdotal evidence on the question, answers to which are clearly required. Can any readers point to recent research where the issue has been considered?

The second is the role of the ‘intermediary’, and the ‘communication specialist’. The blogger has some experience of these roles in the disability setting, where especially the ‘profoundly deaf’ will be afforded special assistance and access to the court process through communication specialists and relay interpreters. The use of intermediaries and communication specialists in family cases may open trapdoors to whirlpools.

Finally and critically, paragraph 21 of the Guidelines appears to shift some of the burden of ‘fairness’ from the court – to the advocates: “All advocates have a responsibility to manage the questioning of a child witness fairly”. Whilst this will be the guiding principle for most family law advocates, inevitably there will be conflicts of duty to advance the client’s case at some risk to a child witness. How is this duty to be balanced professionally by counsel, and how will the duty be interpreted by the court? Is this not another example of the inherent conflict in dealing with sensitive family issues within an essentially adversarial system of law? Perhaps this should be added to the catalogue of reasons that call into question our current approach to family conflicts?

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