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 stepdaughter, 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.