Goodman Ray acts for children in a number of different situations. Our clients include children as parents, children who have been victims of abuse and children who are alleged perpetrators of abuse themselves. Every child deserves the same rights and needs the same protection from the law, whether they fall into none, one or several of these categories.
A child who has made allegations of abuse of a physical or sexual nature can be interviewed by the police or by a social worker, in the correct manner and setting. These interviews should be recorded on camera, in accordance with the guidance in Justice: Achieving Best Evidence in Criminal Proceedings (March 2011). However, the purpose of an Achieving Best Evidence (ABE) interview is to give a child space to provide information in an open environment. Its object is not as an evidence gathering exercise, nor should an interview be undertaken in order to make the child repeat on camera allegations they have previously made to somebody else, as outlined in TW v A City Council  EWCA Civ 17.
Children must be entitled to the same protection afforded to adult clients who undertake communications with their lawyers. It is obviously important, therefore, that a child still has the same right to legal professional privilege where serious allegations are being made against him or her.
Children can also give oral evidence during a case and, in care proceedings, there is no presumption that a child should not do so. It is good practice for the court to have submissions on behalf of the child and a written report from the children’s guardian before calling a child as a witness. However, in the case of Re W (Children) (Family Proceedings: Evidence)  UKSC 12, Baroness Hale emphasised that concerns over the harm it would do to a child to give evidence should not be the only basis upon which the decision is made:
‘When the court is deliberating whether a particular child should be called as a witness, the court will have to weigh two considerations: the advantages that it will bring to the determination of the truth and the damage it may do to the welfare of this or any child.’
Earlier this year, an important care case highlighted the errors being made in relation to the three issues relating to children that are touched upon above.
Re E (A child) 2016 EWCA Civ 473
In the recent case of Re E (A child), a number of findings of sexual abuse against a father and his teenage son (A) towards three children (B, C and D) made by Her Honour Judge Watson, were set aside and sent back to the Family Court.
Trial judge Her Honour Judge Watson’s findings were based on allegations that the three children made to their foster carer and during ABE interviews. However, it was found by the Court of Appeal that the ABE interviews had not been carried out in a way that met the standards set out in Justice guidance. The judge’s failure to address these breaches was found to be inadequate in the following ways:
i. the ‘truth and lies’ aspect of Phase One of the ABE interviews were not undertaken on camera, nor was there a record of what was said to each child prior to the recording;
ii. when child D was interviewed, she was initially unresponsive to questions which were leading in nature. D then received an hour break which was not recorded. After the break, D began to respond and repeated the disclosures she made to her foster parent;
iii. a few days later, the police conducted fast-track interviews with the children at their foster home. The short note summarising what the children said during this process was wholly inadequate;
iv. no written record was available from the police of the ABE process;
v. the HHJ Watson dismissed an application to call the police officer who conducted the ABE and fast track interviews to give evidence; and
vi. the officers’ questions attempted to influence the children to repeat on camera what they may have said to their foster carer.
The rights of Child A
In the Court of Appeal it was established that, in taking instructions from A (a child accused of sexually abusive behaviour), legal professional privilege was not sufficiently acknowledged and protected.
A’s solicitor and the children’s guardian were criticised for the way in which they received instructions from A. Child A was asked by his Solicitor if he had suffered sexually inappropriate behaviour. A was left with a piece of paper to answer the question by marking ‘yes’ or ‘no’ in a box. A’s key worker ticked the ‘yes’ box because he was tense and could not use the pen.
HHJ Watson found that A had suffered sexual abuse from his father, E. However, although A had previously complained that his uncles had sexually abused him, he had never made an allegation against E during the course of the case.
In the Court of Appeal, it was found that A was not given the normal right of confidentiality between a solicitor and a client, as his answer was later disclosed to the parties and the court without his consent. McFarlane LJ concluded:
‘the judge ought to have…been aware of the need to protect A’s Article 6 rights and his entitlement to legal professional privilege.’
Children giving evidence
McFarlane LJ stated that it had been six years since Baroness Hale had called to rid the Family courts of any presumption against children giving evidence – yet, in his judgment, he remarked that the culture appeared not to have shifted since that case – which was wrong. Indeed, HHJ Watson had made no reference to the detailed submissions of Re W and did not refer to Re W at all during the hearing.
The Court of Appeal also noted that, in criminal proceedings, approximately 40,000 children give evidence each year, typically through protective methods such as via video link.
The judgment is a reminder that children need to be protected, both as alleged victims of abuse, as well as alleged perpetrators. Care cases are increasing in number, therefore it is all the more vital to make sure every child going through the family justice system has a voice, and that they are safeguarded when speaking out. Re E (A child) provides important guidance to practitioners, but also for parents concerned their children’s rights are being properly protected.