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You are here: BAILII >> Databases >> United Kingdom Supreme Court >> W (Children), Re (Rev 2) [2010] UKSC 12 (03 March 2010) URL: http://www.bailii.org/uk/cases/UKSC/2010/12.html Cite as: [2010] 1 FCR 615, [2010] 2 All ER 418, [2010] PTSR 775, [2010] UKSC 12, [2010] WLR 701, [2010] Fam Law 449, [2010] 1 FLR 1485, [2010] 1 WLR 701 |
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JUDGMENT
W
(Children)
before
LordWalker
LadyHale
Lord Brown
Lord Mance
Lord Kerr
JUDGMENT GIVEN ON
3 March
2010
Heard on 1st and 2nd March2010
Appellant Charles Geekie QC Michael Liebrecht (Instructed by Dutton Gregory LLP) |
![]() Lucinda ![]() Sarah Earley (Instructed by The County Council Legal Services) |
|
![]() Kate ![]() Maggie Jones (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 giveevidence
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 judgewill
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."
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"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 background
The facts of this case
Preserving the status quo
Conclusions in principle
The Outcome in this Case