There is no longer a presumption that children will not give oral evidence in the Family Courts since Re:W (Children)  EWCA Civ 57.
This was an appeal by a father against an order in care proceedings directing that his 14 year old step-daughter, who had made allegations of sexual abuse against him which were recorded by way of an ABE Interview, should not be called to give oral evidence to a Fact Finding Hearing. The Appeal was dismissed. The Supreme Court in Re:W said that, in principle, the approach used in criminal proceedings would apply in private law proceedings but pointed out specific risks to which a court must be alive in that context.
In light of Re W, in deciding whether a child should give evidence, the court's principal
objective should be achieving a fair trial. With that objective, the court should carry out a balancing exercise between the following primary considerations:
i) The possible advantages that the child being called will bring to the determination of
truth balanced against;
ii) The possible damage to the child's welfare from giving evidence, i.e. the risk of
harm to the child from giving evidence, having regard to amongst other things:
The quality and reliability of the existing evidence.
The quality and reliability of any ABE interview.
Whether the child has retracted allegations.
The nature of any challenge a party wishes to make.
The age of the child.
The maturity, vulnerability and understanding, capacity and competence of the child; this may be apparent from the ABE or from professionals discussions with the child.