Children giving evidence in court

children giving evidence in court

Children giving evidence in court

In the final blog of our series covering the Brad Pitt and Angelina Jolie relationship difficulties making headlines around the world, Senior Associate Nicola McDaid discusses the very difficult topic of children giving evidence in court.

Angelina Jolie and Brad Pitt‘s son Maddox has testified against his father during the couple’s contentious divorce and custody battle – offering a “not very flattering” opinion about the actor.

When a couple goes through a separation or divorce, it can be an exceptionally difficult time for all concerned, but when children are involved it can become even more emotionally challenging.

The issue of whether a child should give evidence in proceedings should be considered at the earliest opportunity by the Court and all parties. This decision will depend on the purpose of the child giving evidence, the significance of the allegations made and whether other evidence is available.

This is not commonplace and every case will be different, so specialist advice on this issue is crucial.

Following the leading case of Re W (Children) [2010] UKSC 12 and again reiterated in by McFarlane LJ in E (A Child) [2016] EWCA Civ 473, the Court’s main objective is to achieve a fair trial. With this objective the Court must weigh up two considerations to a child giving evidence in Court. They must consider:

* the advantages that it will bring to the determination of the truth

* the the damage it may do to the welfare of the child.

In determining these considerations, the Court must have regard to:

* the child’s voice, age, needs, maturity, vulnerability, abilities

* the nature of the allegations

* the quality and importance of the child’s evidence

The Court must always take into account the risk of harm which giving evidence may do to the child and how to minimise that harm. Section 1(3) of the Children Act 1989 sets out a checklist of factors the Court is required to take into account when making a decision which affects the welfare of a child. The Court will also need to take into account practical and procedural issues, such as:

* giving the child the opportunity to refresh their memory

* the type and nature of the questions

* the appropriate identity of the questioner, as one person is generally identified to ask agreed questions of the child.

A child generally does not give evidence to the Court in the same way as an adult would.

The court also needs to look at what other evidence maybe available.  The child may have given an interview to the police for example. If so, the Judge may need to view the interview before making any decision as to whether a child should give oral evidence to the Court.

Following the case of Re W, 12 guidelines were issued. They were specifically designed to assist the Courts in deciding upon whether it is appropriate for a child to give evidence.

If there are criminal proceedings in which the child has given interviews, then there needs to be close liaison between the criminal and family Courts so as to avoid any prejudice to either set of proceedings.

As can be seen is it a complex area to navigate and for children, giving evidence in court can be a frightening experience for them; all factors need to be taken into account not only to ensure that the case is dealt with justly, but also to protect and minimise any emotional damage that could be caused to children who go through this experience.

At McAlister Family Law we have an experienced team of family lawyers specialising in this area, who are passionate in ensuring that the voice of the child is heard but also ensuring that they are protected wherever possible.

If you are affected by any of the issues raised here, please get in touch today.  We are here to help you.

Will a history of drug and alcohol misuse prevent you from spending time with your children?

Brad Angelina drug and alcohol

Will a history of drug and alcohol misuse prevent you from spending time with your children?

Continuing our series of blogs covering the Brad Pitt and Angelina Jolie relationship difficulties currently making headlines around the world, today Associate Melissa Jones look at Brad Pitt’s history of drug and alcohol misuse, and examines whether this would affect a separated parent’s contact with their children.

Brad Pitt alcohol

It is a matter of record that Brad Pitt has battled addictions to both alcohol and marijuana for many years, and attended Alcoholics Anonymous meetings for more than a year after his now ex-wife Angelina Jolie filed for divorce from him in 2016.

“I can’t remember a day since I got out of college when I wasn’t boozing or had a spliff, or something.” Pitt told GQ Style in 2017, several months after Angelina Jolie, with whom he shares six children, filed for divorce. “I’m really happy to be done with all of that. I mean I stopped everything except boozing when I started my family.”

Child contact and the law

The law, as it stands, presumes that it is in the children’s best interests for each parent, even when they have separated, to continue to be involved in the lives of any and all of their children, unless such involvement may subject them to a risk of harm.

This misuse of alcohol, drugs – both prescribed and illegal ones – often feature in cases coming before the family court, where one parent wants to prevent contact with the couple’s children because of concerns around the safety of the children. That allegation may set in motion assessment, by the courts, CAFCASS or Social Services, of the risks that may be posed to the children involved.

As family law solicitors, we are all too familiar with such cases coming before family court, and it is not unusual for an ex-partner to allege the other parent should have only limited, or indeed no, contact, with the couple’s children because of previous drug and alcohol misuse and the risk such misuse poses to those children.

What measures can the court take?

The court has a number of ways it will both establish any potential risk and manage it:

– it can make regular testing and monitoring of alcohol and drugs, which might include hair strand testing, breathalysing pre and post child contact, and/or the wearing of a SCRAM bracelet*

– it can require an undertaking that the parent will not consume alcohol or drugs when having contact

– it can require the parent’s attendance on specific therapeutic and remedial courses

With parents that do have difficulties like those outlined above, from the courts’ perspective, there are ways of working through them so that children can maintain positive relationships with both parents.

If you are affected by any of the issues raised here, please get in touch today.  We are here to help you.

*Like a breathalyser for the ankle, the SCRAM Continuous Alcohol Monitoring (SCRAM CAM) bracelet provides 24/7 transdermal alcohol testing, automatically sampling the wearer’s perspiration every 30 minutes.

Coercive and controlling behaviour: an important family law case

coercive and controlling

Coercive and controlling behaviour

Partner Ruth Hetherington looks at a recent case highlighting an area of domestic abuse: coercive and controlling behaviour.

As a family lawyer of more than 30 years’ experience, I am heartened by the recent judgment by Mr Justice Hayden in F v M [2021] EWFC 4 which highlights an area of domestic abuse that has not always been easily recognised until now: coercive and controlling behaviour.

As the first reported High Court case to analyse in great depth allegations of coercive and controlling behavior, it may be one of the most important to happen in family law for a long time, demonstrating just how difficult it is to evidence the type of coercion and control at play in this kind of case. It is only by examining the history of the relationship in its entirety that the pattern of coercion is truly apparent. Hayden J stated that: “Behaviour, it seems to me, requires, logically and by definition, more than a single act.” In other words, frequently individual acts, in and of themselves, do not offer up an obvious picture of severe coercion and control. Rather, together these actions develop over a significant period of time.

In addition, context is important. Sometimes an action that might appear innocuous in one relationship is, in another, part of a pattern of controlling behaviour, and therefore a single act must be evaluated “in the context of the wider forensic landscape”.

In this case, the court considered the circumstances of two separate families/relationships in which the father was the common denominator, there having been a successful appeal against an earlier decision to exclude the evidence in the second relationship.

At McAlister Family Law we are seeing an increasing number of cases where this type of abuse is clearly described. Although this particular case is quite an extreme example, there is no doubt this type of abuse needs to be recognised and addressed, especially as the victims are often isolated and behaviours may appear innocuous without proper context. I thought this a particularly pertinent point:

“Broader professional education on the scope and ambit of coercive and controlling behaviour is likely, in my view, to generate greater alertness to abuse of this kind which too frequently lies buried or only superficially investigated.

Finally, it is important to bear in mind the words of Mr Justice Hayden: “what is really being examined in domestic abuse of this kind is a pattern of behaviour, possibly over many years, in which particular incidents may carry significance which may sometimes be obvious to an observer but to which the victim has become inured.”

In short, Hayden J has provided all family law professionals useful guidance in that coercive and controlling is more than a single act, it has to be put into context, professionals need to look at the wider picture and the way in which we present these cases may not fit the kind of templates frequently used in family cases.

Family practitioners need to be alive to all types of domestic abuse, including those that may not be easily recognised, but nonetheless cause the victims and their families untold psychological and emotional consequences.

 

If you are affected by any of the issues outlined here, please get in touch today – we are here to help you.

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