Judges in family proceedings have been given an unenviable task. Following a decision of the Supreme Court last week, they must now think longer and harder about whether a child should appear in court to face the person that might have abused them. Such a critical decision could change a child’s life.

Five law lords ruled unanimously that that the presumption against a child giving live evidence in family proceedings should be removed. Lady Hale, in her succinct 35-page leading judgment, made it clear that Europe was key in the judges’ decision: the right to a private life is not an unqualified right, and must be balanced with the right of the accused to a fair hearing. By building the presumption that the child should not be called, this latter right could not be reconciled with the former.

Judges in family proceedings will therefore have to change tack when making the decision whether or not to allow a child to be called to give evidence, with the rights balancing exercise taking centre stage. Hale recognised this departure in her judgement: ‘The family court will have to be realistic in evaluating how effective it can be in maximising the advantage while minimising the harm. There are things that the court can do but they are not things that it is used to doing at present.’ And in an apparent direction to family judges, Hale suggests that ‘the consequence of the balancing exercise will usually be that the additional benefits to the court’s task in calling the child do not outweigh the additional harm that it will do to the child'.

Nevertheless, different judges will balance these competing rights in different ways. The removal of the presumption means the decision becomes harder to make. The potential for a child to be permanently damaged by a courtroom appearance will undoubtedly nag at the mind of the presiding judge, and the behaviour of any respondents in the courtroom should the child appear cannot be predicted.

The first chance a judge will have to apply the new balancing test will be in the case in question, Re W (Children). Charlotte (the pseudonym of a 14-year-old girl who alleges sexual abuse by her stepfather) could be called into the courtroom over the coming weeks. The decision of the judges, and their reasoning, will be keenly watched.