Beyoncé shakes up evidence and family law syllabuses

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By Katie King on

Lady Hale wants children to have a greater voice in court


The Beyoncé of the Supreme Court, Lady Hale, has called for a shake-up in the rules of the courtroom — which could see big changes in evidence and family law syllabuses.

Speaking at a recent conference, the deputy president of the Supreme Court told an audience of family lawyers that there is a growing need for children’s evidence to be heard in court, beyond the arena of the criminal justice system.

Child witnesses play a valuable role in criminal justice — in 2012, there were 33,000 child witnesses in criminal cases.

Unfortunately, it’s difficult to draw a distinction between this figure and the number of child witnesses in the family justice system, because of a lack of available data. But looking back at her time in the Family Division, Hale notes that the courts have been very reluctant to consider the evidence of children.

There are a number of, what Hale terms, “respectable reasons” for being cautious about having children in the courtroom, or having judges see children in private. There’s a fear that judges cannot effectively communicate with children; that it is difficult to preserve the rules of natural justice while enabling children to speak freely; and that listening to lawyers debate your future is not an experience that any child should have.

But Hale began her pro-reform speech, aptly titled ‘Are we nearly there yet?’, with a number of positive reasons for giving children a voice in the family courtroom. To name but a few: children want to communicate; children have a right to know what’s going on; and children need to be able to tell people about present or likely harm they may be suffering.

As a state school-educated female — a rare sight in the top ranks of the judiciary — Hale offers a viewpoint that tends to be more liberal and progressive than some of her fellow justices. And it’s clear that the value of children’s rights are changing and improving — just look at the Human Rights Act and the United Nations Convention on the Rights of the Child.

Moving away from the rigidity of the rules of evidence, she calls for criminal law-like special measures to be introduced in the family justice system, stating:

There is a lot to be said for the family court having the power to adopt the so-called ‘special measures’ when it thinks appropriate. We are not just talking about children here but also about the many parents involved in family, especially care, proceedings who are almost as vulnerable as their children. We need special measures for both.

The normalisation of children in the courtroom “would certainly be an improvement” — but Hale stresses that the purpose of this normalisation needs to be clear. It is unhelpful if children want to go to court for one reason (for example, to tell the judge his or her views), but the judge is allowing him or her into the courtroom for another reason (for example, to explain the importance of court proceedings to the child).

Hale ends her speech with a reluctant nod to law reform:

I am glad to see that the subject is now firmly on the agenda but less than clear about exactly where we are heading and whether it is in the right direction.

With nine places on the Supreme Court bench soon to be up for grabs, and constant pro-diversity pronouncements echoing from the judiciary, it won’t be too long before the court has more and more progressive view-holders like Hale.