Children in family proceedings should be called to give live evidence in court if the advantage it would bring in deciding the case outweighs the risk of harm to the welfare of the child, the Supreme Court ruled last week.

In a unanimous decision, five law lords removed the presumption against a child giving evidence in family proceedings. Previously, the court would assume a ‘starting point’ that it was undesirable for a child to give live evidence without ‘particular justification’, and that cases where it would be right to make an order would be ‘rare’.

In Re W (Children), the lords decided that the existing approach ‘cannot be reconciled with the approach of the European Court of Human Rights’, as it did not balance the child’s right to respect for their private life with the respondent’s right to a fair hearing.

Giving the leading judgment, Lady Hale said that ‘an unwilling child should rarely, if ever, be obliged to give evidence’. She said that in most cases the risk of harm to the child was likely to outweigh the benefits to the trial.

Hale said that the issue should be addressed at the case management conference in care proceedings, or the earliest directions hearing in private law proceedings.

Christina Blacklaws, Law Society council member for child care, expressed concern at the prospect of alleged abusers trying to force children to give evidence in court, and warned that satellite litigation regarding children giving evidence could further slow the family justice process.

‘In the family justice system, children do not play an active role in the court process,’ she said. ‘If there are children who want to see the court building, the judge, and give evidence, and they are sufficiently well developed to do so, then they should be encouraged. But courts are not good places for children who do not want to be there.’