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Court states importance of tailor made approach to examining children

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Caitlin Ferris (acting for the second appellant) and Sue George (acting for the local authority) were recently involved in a Court of Appeal matter before Lord Justice McCombe, cited as Re M-Y (Children) [2018] EWCA Civ 1306.

In this case, the mother and father of the children were appealing a finding of fact decision, in which Judge Wright had determined there was evidence of physical and sexual abuse towards the child.

The child had made a series of allegations to her school and during an ABE interview with police, which the parents contested. While Judge Wright had made an order for the child to be questioned, not all allegations were put to the child in court.

On appeal, McCombe LJ ruled that while the fact findings had a basis in evidence, a number of features at trial and in the case management directions raised concern that the findings might not be sound and that the parents’ ability to challenge the allegations had been undermined. His concerns included the failure to call a key witness, failure to allow the parents to put forward adequate fair questions, overreliance on unchallenged evidence relating to out of country events, and overreliance on unchallenged evidence from the T clinic.

McCombe LJ referred to Re W (Children) [2010] UKSC 12, but also noted that Sir Munby had raised concern over a change in attitude towards these matters in Re F (Children) [2016] EWCA Civ 546.

In granting the appeal, McCombe LJ stated that the approach to giving directions for a child to give evidence must be tailor made. In this case, the questions presented to the child had not permitted the parents to put forward focussed questions or to invite an explanation for certain events. This was a novel point, as it illustrated the judiciary’s further consideration of Re W and the importance of allowing a full range of questions to be put forward to a child to ensure fairness.

Read the full judgment here: http://www.familylawweek.co.uk/site.aspx?i=ed190389

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