W (Children) [2010] UKSC 12

In this decision, the Supreme Court removed the presumption or starting point , which was rarely if ever rebutted, that it is only in the exceptional case that a child should be called as a witness in family proceedings.

A 14 year old girl alleged that her stepfather had seriously sexually abused her. The lower court had refused the father’s application to call the daughter as a witness and the Court of Appeal dismissed his appeal against that decision. The father appealed to the Supreme Court.

A balance must be struck between Article 6 and 8 of the European Convention on Human Rights, namely the right to a fair trial and right to private life. Neither right should have precedence over the other and when striking the balance between the two rights, it may well mean that a child should not be called to give evidence in a great majority of cases. However, this should be the result of a balancing exercise and not a presumption or even a starting point. A court should balance the advantages that the calling of a witness will bring to the determination of the truth and the damage it may do to the welfare of this or any other child. The essential test is whether justice can be done to all the parties without further questioning of the child.

Local Authority v S [2009] EWHC 2115 (Fam)

Following the death of a child by collapse, the local authority asserted that there was a single primary event which fitted with a traumatic shake or shake/impact which led to the classic triad of injuries. The mother put forward possible alternatives.

King J considered the conflicting stances of two of the experts who stated that the evidence available could not prove that the baby was shaken and that the injuries could have been caused by hypoxia: these two experts had built on the hypotheses put forward by Dr Geddes in R v Harris [2005] EWCA Crim 1980, but which had not been accepted by the Court of Appeal in that case.

King J criticised the experts stating that they were “significantly out of their respective areas of expertise” and they had "each fallen into that category of expert identified by Butler-Sloss P in Re U [2004] EWCA Civ 567, namely the expert who has developed a scientific prejudice" and that their views were “voices in the wilderness” that went against the mass of mainstream medical opinion.
(Steve Hayden)

In Re B (A Child) [2009] UKSC 5
19 November 2009
Lord Hope, Lady Hale, Lord Collins, Lord Kerr, Lord Clarke

In the first reported family law case from the Supreme Court, it was confirmed that there is no presumption in favour of the biological parent when considering granting a residence order, overturning the decision of the Court of Appeal.

The court ruled that, given that the child, H (nearly four by the appeal), had been living with his maternal grandmother for virtually all of his life and had formed a strong bond with her, there was a concern that if he was to then live with his father, his current stability would be threatened. This was despite the grandmother’s previous problem with alcohol and the fact that she had once been the victim of domestic violence.

Although the child’s father may have been in a position to look after H, those arrangements remained untested at the time the case went before the justices.

Re A (a minor) [2009] EWHC 710 (Fam)
17th March 2009
Mrs Justice Parker

Prior to the case being heard, the mother, who originates outside the United Kingdom, removed the child from the jurisdiction to her country of origin twice. The father, who is originally from Greece but has settled in the United Kingdom, had substantial concerns that the mother may remove A again unless safeguards were put in place. The mother denied any such intention.

The parties therefore agreed that whilst the child spent substantial periods of time in the care of the mother, the child would be subject to a curfew with electronic monitoring. In confirming the availability of tagging in family cases, the following guidance has been suggested:

‘(1) An order needs to be made and sealed by 3.30 on the day before its implementation.
(2) A representative will attend the premises to install the device the next day. The order must contain the following information:
(i) The full name of the person(s) to be tagged.
(ii) The full address of the place of curfew.
(iii) The date and time at which the tagged person agrees to be at home (and any other relevant places) for the installation of the monitoring device.
(iv) A schedule of the times at which the court expects the person to be at home (or any other relevant places) so that the service can monitor compliance.
(v) The start date of the curfew and, if known, the end date of the curfew, the days on which the curfew operates and the curfew hours each day.
(vi) The name and contact details of the relevant officer to whom the service should report to if there is any breach of the above schedule or if the person appears to have removed the tag.’
(Sarah Read)