Growing Pains: Children As Witnesses In Family Proceedings 

Published on 08 June, 2021 | Rachel Cocker

The break-up of any relationship – be it a marriage or cohabitation – can be incredibly tough for those involved.

When it involves children, the emotional and practical complexities can be magnified.

Chief amongst them is the need to make adequate arrangements for children’s care and well-being.

In some instances, the parents concerned may believe that it would benefit proceedings to hear the views of the children themselves.

However, whilst there may well be distinct merits to such direct input, the inclusion of children’s evidence is not entirely straightforward.

That fact has been highlighted recently by coverage of an ongoing legal dispute between the actors Angelina Jolie and Brad Pitt.

The couple split up five years ago but have not yet concluded terms of how they will divorce.

Despite reported criticisms by Ms Jolie of what she viewed as a failure to not allow her children to give evidence, the judge hearing the case agreed that the couple should have joint custody in what was described as a “tentative ruling” (https://www.bbc.co.uk/news/entertainment-arts-57259969).

The proceedings are taking place in California and, therefore, subject to laws which are different to those applying to similar matters in England and Wales.

It’s also impossible to say – at least for now – whether evidence from the couple’s children would have made any difference to the outcome.

Nevertheless, the issues which they have raised do have parallels here.

The fact is that there is no clear-cut position on whether children should give evidence. Like so many family law proceedings, the court retains a critical element of discretion in relation to the specifics of a case.

Yet the last decade or so has provided helpful guidance about whether children should contribute to hearings which may impact on their circumstances.

In 2010, the Supreme Court ruled in one notable case that there was no longer a presumption that children should not give evidence (https://www.bailii.org/uk/cases/UKSC/2010/12.html).

A year later, a working party chaired by Lord Justice Thorpe delivered guidance on the factors which needed to be taken into account in determining whether it was indeed  appropriate.

As the resulting report and guidelines made clear, courts must strike something of a “balancing act” between the advantages of having a child provide evidence and the possible damage to a child’s welfare from being directly involved (https://www.judiciary.uk/related-offices-and-bodies/advisory-bodies/fjc/guidance/guidelines-in-relation-to-children-giving-evidence-in-family-proceedings/).

The latter should always take precedence, especially given that the Children Act 1989 underlines how, in any deliberations about a child’s upbringing, their “welfare shall be the court’s paramount consideration” (https://www.legislation.gov.uk/ukpga/1989/41/section/1).

Lord Justice Thorpe’s investigation into the issue came against a background of more applications for children to be allowed to give evidence.

Even though there are no detailed figures for such applications available, other data published by the Ministry of Justice (https://www.gov.uk/government/statistics/family-court-statistics-quarterly-october-to-december-2020/family-court-statistics-quarterly-october-to-december-2020) illustrates the current scope for these sorts of questions to arise.

The number of applications for Child Arrangement Orders – setting out which parent a child will live with and the time which they will spend with the non-resident parent – in England and Wales rose by 48 per cent between 2015 (36,101) and last year (53,655).

As Lord Justice Thorpe and his team identified, whether a child gives evidence should depend on more than the individual child’s ability to fully understand what’s being asked of them.

Some cases, for example, involve allegations of domestic violence or mental health and courts need to decide whether having a child appear as a witness is really appropriate.

We shouldn’t forget either that courts can be intimidating for adults, let alone minors. Might the quality of a child’s contribution be inhibited by the daunting prospect of simply attending a hearing?

That might account for why courts can sometimes appear reluctant to allow evidence from children but, in my opinion, should not necessarily be a total barrier.

As the reliance on remote court proceedings during lockdown has demonstrated, technology offers a viable alternative to a child needing to be at court in person. In addition to a video link, in some instances, they are sometimes allowed to put their opinions in writing to the judge.

Although each decision very much depends on the individual details of a case, the days when it was definitively said that “children should be seen and not heard” are, thankfully, behind us.