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Re S and Re W in the UKSC

Date posted: 13 September 2016

This month has seen the Supreme Court refuse permission to appeal on two separate decisions by the Court of Appeal in relation to children participating in family court proceedings. The two cases are Re S (children) 2016 EWCA Civ 83 which was a care proceedings matter and F (Children) [2016] EWCA Civ 546 an application under the Hague Convention for return to Hungary.


Re S (Children) concerned a father’s appeal to the Court of Appeal against a case management decision that the 13 year old subject child should not give oral evidence at a fact finding hearing. F (Children) concerned a father’s application for the two subject children to be returned to Hungary under the Hague Convention and the Court of Appeal considered the mother and eldest child’s appeal against this and whether the eldest child was given a proper opportunity to participate in the proceedings.


It is not usual for a child to give oral evidence within family proceedings and consideration has to be given to the case of Re W (Children) when making a decision in respect of this. Re W (Children) states that the Court has to carry out an evaluation as to whether oral evidence from a child is appropriate based on the case before it. The Court has to weigh two relevant considerations which are the advantages that a child giving evidence will bring to the determination of the truth and the damage it might do to the welfare of the child witness.


In F (Children) the Court of Appeal was clear that the Deputy Judge in the first instance had given clear consideration to the child’s views and position and stated that there was “no basis for the assertion that the Deputy Judge attached “no weight” to L’s objections. He dealt with them in some detail and gave them appropriate weight but, as he was entitled to, refused to treat them as determinative.” The Court of Appeal effectively ruled that a full opportunity to participate in the proceedings, by way of being joined as a party, would not have made a difference to the outcome or the Judge’s decision. The Supreme Court supported this view and therefore refused permission to appeal.


In Re S (Children) the Supreme Court supported the Court of Appeal’s judgment which supported the first instance judge’s decision not to permit the child to give oral evidence. The Court of Appeal was clear that the judge in the first instance had given great consideration to the options available for obtaining further involvement of the child and also that the child was unwilling to give oral evidence (although this formed an important part of the decision making process it was not the only consideration). The Court of Appeal stated that the first instance judge had applied the law correctly to the circumstances of the case.


The interesting parts of both cases relate to comments made by the Court of Appeal Judges. In F (Children) the President of the Family Division Sir James Munby stated that “proper adherence to the principles laid down in Re W will see ever increasing numbers of children giving evidence in family proceedings.” In Re S (Children) LJ Gloster provided a dissenting judgment stating that the case left her “with a deep sense of unease, both in relation to the initial decision of HHJ Moir dated 16 September 2014 that K was not to give oral evidence in the finding of fact hearing and the judge’s subsequent fact-finding judgment.”


Case note by

Sarah Colley

Wilson Solicitors LLP


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