ON APPEAL FROM BRIGHTON COUNTY COURT
(HIS HONOUR JUDGE COATES)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE MOORE-BICK
LORD JUSTICE SULLIVAN
|IN THE MATTER OF H (a Child)|
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Mr Francis Cassiay (instructed by Leona Daniel Solicitors) appeared on behalf of the Respondent.
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Lord Justice Thorpe:
"I take the view that to require or allow H to come into the witness box would not be beneficial to his welfare. This is not a case that is sufficiently unusual or extraordinary for that to happen. I have of course borne in mind the fact that he is 14, but I have also borne in mind all the other observations made in the two reports supplied by Dr Blincoe. I do not, in those circumstances, think it would be appropriate for that course to be taken."
But in so concluding, the judge was directing himself by reference to the case of LM v Medway  EWCA Civ 9, and that is Mr Campbell's foundation argument. The judgment given in LM v Medway was rejected by the House of Lords in the later case of Re W  UKSC 12, and accordingly, says Mr Campbell, a plain misdirection has been demonstrated. The judge embarked upon the exercise of a discretion, stating the presumption that child victims do not give direct evidence in care proceedings and, says Mr Campbell, this presumption not only influenced but effectively drove the conclusion. He submits that had the judge had the guidance in the later case, there is at a minimum a real possibility that she would have reached the opposite conclusion. Mr Campbell has very helpfully withdrawn other grounds, having had his attention drawn to the decision of this court in Re L, R, MH and C, a case as yet unreported but the subject of judgment of 10 May.
Lord Justice Moore-Bick:
"I have to assess whether or not in the circumstances of the overall case, and given the vacillations in the view expressed by H in the differing circumstances that he has found himself, whether in those circumstances having him in the witness box is (A) going to be of any use and (B) whether it is going to be conducive to his welfare."
It is accepted that in putting the matter in that way the judge directed herself correctly. In doing so she expressed herself in terms which, although not formulated in quite the same language as that used by Baroness Hale in paragraph 24 of her speech in W (Children)  UKSC 12, are in substance the same. In that paragraph of her speech Lady Hale said that:
"When the court is considering whether a particular child should be called as a witness, the court will have to weigh two considerations: the advantages that that will bring to the determination of the truth and the damage it may do to the welfare of this or any other child."
As I have said, the test the judge adopted was in substance exactly that.
Lord Justice Sullivan:
Order: Appeal dismissed.