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UK COURTS

Child evidence in family proceedings and the balance of competing Convention rights.

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.

Deference to use of land as a golf course does not prevent the determination of a claim as of right for the purposes of registration of a town green.

The Supreme Court handed down judgment in the case of R (Lewis) v Redcar and Cleveland Borough Council and another [2010] UKSC 11 on 3rd March 2010. The case was heard on the 18th, 19th and 20th January 2010, and concerned the registration of a town green under provisions of s.15 of the Commons Act 2006 (c.26) (‘the Act’).

The appellant had been one of five local residents who commenced an application for registration under the Act. Of relevance in the Supreme Court was a ground of refusal by the inspector that the use prior to 2002 was extensively that of a golf club and therefore could not be claimed as of right by the residents. The refusal decision was accepted by the local authority. Relying on the case of R (Laing Homes) v Buckinghamshire County Council and Another [2003] EWHC 1578 (Admin), the High Court upheld that decision. The refusal was further upheld in the Court of Appeal.

The appellant challenged the decision in the Supreme Court. The sole issue before the court concerned whether use of the land for lawful sports and pastimes but deferring to the use of the land as a golf course precluded the claim as of right to have land registered as a town green.

Responding to the question of whether this had been met, the court considered the judgment of Lord Hoffmann in the case of R v Oxfordshire County Council, Ex parte Sunningwell Parish Council [2000] 1 AC 335. In this case the theory of prescription was determined to relate to “how the matter would have appeared to the owner of the land”. Applying this principle, and focusing on the way the land had been used by the residents the court considered that it was difficult to declare that a right had not been asserted simply by virtue of residents’ civility towards other users of the land.

Addressing the respondent’s argument of possible change in the use of the land by residents following registration, the court considered that there was little evidence to support concerns of “a sudden diversification or intensification of use”.

Allowing the appeal, the court determined that the inspector’s decision erred in law and the land should be registered as a town green by the local authority.

IRISH COURTS

There were no notable cases heard this week