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Should Children Give Evidence in the Family Courts

In family law disputes, parties (often the parents) give different accounts when recalling the relevant details. A parent might say that their child does not want to have contact with the other parent. The other parent might say that the child has said that they do want to have contact. How should a child’s views best be considered by the Family Court and if, if ever, should a child be expected to give evidence in the Family Court? Most will appreciate that it might be stressful and potentially harmful for a child to give evidence about their family life.

The traditional view was always that children should not be put in the place of giving evidence in court proceedings concerning their future. Since the Children Act 1989 and United Nations Convention on the Rights of the Child 1989, it has been clear that children that can express their views should be provided with the opportunity to be heard. For many years, this has been done through an Officer of the Children and Family Court and Support Service (CAFCASS). The Officer would then make a report to the court giving recommendations using the welfare of the child as the paramount consideration. A child wishes and feelings are considering (amongst a list of other factors) when considering a child welfare.

In March 2010 in the case of Re W (Children) (Abuse – oral evidence) the Supreme Court considered the issue of children giving evidence in family law cases. In this case, the court rebutted the presumption that children should not give evidence. The presiding Judge said children are harmed if left in an abusive family but equally harmed if taken away from their family and so the court must admit all the evidence relevant to the question being decided. Following this case, the Family Justice Council produced a set of guidelines (guidelines in relation to children giving evidence in family proceedings) the primary objective being a fair trial. These guidelines are involved and lengthy but include consideration of a child’s wish to give evidence, the needs of the child, the issues to be determined and many more factors.

Looking forward, despite the above, it would seem unlikely that the floodgates to children giving evidence are to be opened. As stated above in most cases the views and wishes of children will be represented through CAFCASS. In cases where there are evidential issues to be determined, it will remain a difficult test to satisfy a court that benefits outweigh the potential detriment. Of course, parents will always need to consider if they wish to put their child through the ordeal of giving evidence.


By David Marsh – Family Law Solicitor

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