The Supreme Court handed down judgment in the case of W (Children) [2010] UKSC 12 on 03rd March 2010. The case, heard on the 1st and 2nd March 2010, concerned family court discretion in ordering a child to attend and give evidence in family proceedings and whether current practice can be reconciled with the Convention rights of all concerned.

Care proceedings relating to five children were commenced in June 2009, following allegations of sexual abuse committed by the de facto stepfather against his daughter. The decision to establish a fact-finding hearing raised the issue of whether the child was to be called as a witness or whether her earlier “Achieving Best Evidence” (ABE) interview was to be relied upon instead. ABE interviews are seen as a means of attain a near-contemporaneous account, using open-ended questioning and situated in comfortable surroundings. Whilst the Local Authority eventually determined that they would use only the ABE interview, the father submitted an application for the child to be called to give evidence.

Dismissing an appeal by the father, the Court of Appeal followed current practice, outlined in LM v Medway Council, RM and YM [2007] EWCA Civ 9. This provided for an initial presumption against a child giving evidence, which would need to be rebutted by any party wishing to put questions.

Allowing the appeal, and remitting the case for determination, the Supreme Court found that it was the duty of the court to consider issues relating to the Convention raised on behalf of the appellant. Risk to child welfare must be taken into account when undertaking a reformulation and the factors to be included in the consideration were discussed. Referring to SN v Sweden, App no 34209/96, the court determined that current practice did not reconcile with the balancing of competing Convention rights, in this context Article 6 and Article 8 of the Human Rights Act 1998 c. 42 sch. 1, and removed the initial presumption. Concluding, the court formulated that the test instead be framed as “whether justice can be done to all the parties without further questioning of the child”. The court emphasised that for the majority of cases, a child would not be called to give evidence, but that this would be “a result, and not a presumption or even a starting point”.

Acknowledging the principle of maintaining the same approach in both private family proceedings and in care proceedings, the court highlighted specific factors particular to private proceedings of which the court must be aware. statement of claim contained any issue not covered on the special case.