Should children be asked to give evidence in family proceedings? David Burrows investigates
In W (Children) [2010] UKSC 12, Lady Hale considers the factors for consideration by a judge when the court is called upon to exercise a discretion as to whether a child may be called to give evidence. This judgment continues a run of decisions by her in which she defines evidential and case management principles around children in family proceedings. A decision from relatively early in her judicial career —Re B (Children Act Proceedings) (Issue Estoppel) [1997] 1 FLR 285, [1997] 2 All ER 29—recently had the dubious accolade of being cited by the Upper Tribunal ([2009] UKUT Chadwick LJ as senior president and Upper Tribunal Judge Jacob) as providing a criterion for deciding whether issue estoppel applied as between matrimonial ancillary relief proceedings and child support First-tier Tribunal proceedings. (Answer: to a limited degree only.) In the ground-breaking judgment she re-evaluated and enunciated modern principles on which burden and standard of proof should be regarded in family proceedings.
Her background
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