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United Kingdom Supreme Court
You are here: BAILII >> Databases >> United Kingdom Supreme Court >> W (Children), Re (Rev 2)  UKSC 12 (03 March 2010)
Cite as:  PTSR 775,  WLR 701,  1 FCR 615,  1 WLR 701,  1 FLR 1485,  UKSC 12,  2 All ER 418,  Fam Law 449
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 UKSC 12
On appeal from:  EWCA Civ 57
JUDGMENT GIVEN ON
3 March 2010
Heard on 1st and 2nd March 2010
Charles Geekie QC
(Instructed by Dutton Gregory LLP)
(Instructed by The County Council Legal Services)
Kate Branigan QC
(Instructed by Larcombes LLP)
LADY HALE giving the judgment of the court
"The correct starting point . . . is that it is undesirable that a child should have to give evidence in care proceedings and that particular justification will be required before that course is taken. There will be some cases in which it will be right to make an order. In my view they will be rare."
She went on to explain the factors which should guide the judge in considering whether to make the order, at para 45:
". . . the judge will have to balance the need for the evidence in the circumstances of the case against what he assesses to be the potential for harm to the child. In assessing the need for oral evidence . . . the judge should, in my view, take account of the importance of the evidence to the process of his decision about the child's future. It may be that the child's future cannot satisfactorily be determined without that evidence. In assessing the risk of harm or oppression, the judge should take heed of current research into the effect on children of giving evidence and should not rely only upon his impression of the child, although that will of course be relevant."
"First, neither article has as such precedence over the other. Secondly, where the values of the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each."
Mr Geekie understands that article 6 is not a qualified right in the same way that article 8 is a qualified right, but he accepts that what is entailed in a fair hearing in Childen Act proceedings will have to take account of the article 8 rights of all concerned. All he asks for is "an intense focus" upon their comparative importance rather than an assumption that the one will almost always trump the other.
The facts of this case
Preserving the status quo
Conclusions in principle
The Outcome in this Case