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11 March 2010 / David Burrows
Issue: 7408 / Categories: Features , Child law , Family
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An unhappy witness?

Should children be asked to give evidence in family proceedings? David Burrows investigates

In W (Children) [2010] UKSC 12, Lady Hale considers the factors for consideration by a judge when the court is called upon to exercise a discretion as to whether a child may be called to give evidence. This judgment continues a run of decisions by her in which she defines evidential and case management principles around children in family proceedings. A decision from relatively early in her judicial career —Re B (Children Act Proceedings) (Issue Estoppel) [1997] 1 FLR 285, [1997] 2 All ER 29—recently had the dubious accolade of being cited by the Upper Tribunal ([2009] UKUT Chadwick LJ as senior president and Upper Tribunal Judge Jacob) as providing a criterion for deciding whether issue estoppel applied as between matrimonial ancillary relief proceedings and child support First-tier Tribunal proceedings. (Answer: to a limited degree only.) In the ground-breaking judgment she re-evaluated and enunciated modern principles on which burden and standard of proof should be regarded in family proceedings.

Her background for so doing comes pre-eminently from a period at the

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NEWS
Talk of a reserved ‘Welsh seat’ on the Supreme Court is misplaced. In NLJ this week, Professor Graham Zellick KC explains that the Constitutional Reform Act treats ‘England and Wales’ as one jurisdiction, with no statutory Welsh slot
The government’s plan to curb jury trials has sparked ‘jury furore’. Writing in NLJ this week, David Locke, partner at Hill Dickinson, says the rationale is ‘grossly inadequate’
A year after the $1.5bn Bybit heist, crypto fraud is booming—but so is recovery. Writing in NLJ this week, Neil Holloway, founder and CEO of M2 Recovery, warns that scams hit at least $14bn in 2025, fuelled by ‘pig butchering’ cons and AI deepfakes
After Woodcock confirmed no general duty to warn, debate turns to the criminal law. Writing in NLJ this week, Charles Davey of The Barrister Group urges revival of misprision or a modern equivalent
Family courts are tightening control of expert evidence. Writing in NLJ this week, Dr Chris Pamplin says there is ‘no automatic right’ to call experts; attendance must be ‘necessary in the interests of justice’ under FPR Pt 25
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