Family Law Update: When should a ward of court be permitted to attend a foreign trial to give evidence?

Tuesday 2 April 2019

Re X (Wardship) (Foreign Proceedings: Child’s Evidence) [2019] EWHC 91 (Fam)

Case concerned two boys, X who is 12 years old and Y who is 8 years old. Both were wards of the court. The application was for X to travel to India to answer a witness summons issued by the criminal court in India for him to give evidence at the trial of his mother who was charged with killing X’s father.

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The Guardian considered the child’s views to be authentically his own and considered that if the child were denied the opportunity to give evidence at the criminal trial, this would impact adversely on his psychological wellbeing and cause anger and frustration.

Munby P in Re Ward of Court [2017] EWHC 1022 (Fam) held that there is no principle or rule for judicial consent to be required for wards of court to be interviewed by the police or to be called to give evidence in a criminal trial in this jurisdiction. There was no direct authority to be applied in the circumstances where the ward of court is being summoned to give evidence at a criminal trial in another jurisdiction. The issue for the court was whether it should apply the same approach it would have done had the criminal trial been in the UK.

The court established the following principles when determining the issue.

  1. There is no presumption against a ward giving evidence in proceedings merely because they take place outside the jurisdiction.
  2. The court will respect the legal processes in other jurisdictions and the court should ascertain information about
    a) The trial process, including measures to facilitate the child giving evidence; and
    b) The issue to which the child’s evidence is directed.
  3. The ward’s welfare is relevant but not the paramount consideration. Regard should be had to the Re W factors. The court will consider the advantage giving evidence may bring to the particular child, as well as the damage it may cause.
  4. The balancing exercise as set out point 3, must have regard to point 1 and 2 which carry great weight.

Katherine Duncan is a member of the Garden Court Family Team.

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