Hearsay evidence of children

We must have regard to the interests of the public when exercising our functions, and as the independent regulator for teachers in Scotland, we play a crucial role in protecting the public, and in particular children. It is unlawful for us, as a public authority for the purposes of Section 6 of the UNCRC Act when exercising a relevant function (which would include Fitness to Teach hearings) to act in a manner which is incompatible with the UNCRC requirements.

Many conduct allegations that a panel must consider have taken place in a school or classroom setting and have been witnessed by children. In line with Presumption 2 above, we will always try to make contact with child witnesses (or their parents/guardians) over the age of 5 years old, to ascertain their views on giving direct evidence to a Fitness to Teach hearing, putting in place any vulnerable witness measures considered necessary by a Fitness to Teach panel.

The Supreme Court has provided authoritative guidance as to how the courts should approach the question of whether or not to call child witnesses in Re W (Children) (Family Proceedings: Evidence) [2010] 1 WLR 701. While an English family law case, the relevant principles can be applied to our Fitness to Teach hearings. The Supreme Court provides the following analytical framework to be considered when deciding whether or not to require a child to give evidence:

• what advantages will the calling of a child witness bring to the determination of the truth in the proceedings? That includes a consideration of:
  
  • how central the child’s evidence is to the core matters in dispute
  • whether the evidence can be supported by evidence from other sources
  • the quality of the child’s evidence and the manner in which it has been recorded.
  • what risks are posed to the child if they are required to give oral evidence? That might depend on any number of factors, including the child’s age, the nature of the allegations, the views of the child’s parents or guardians and their overall level of maturity
  • what steps can be taken to improve the quality of the child’s evidence and/or reduce the risk posed to the child? That would involve the consideration of whether some form of special measure might be appropriate.

While being keen to not establish a “presumption”, the Supreme Court noted that it would ordinarily expect the outcome of such a balancing exercise to be that a child is not required to attend and give oral evidence, as the additional benefits to the court’s task in calling the child do not outweigh the additional harm that it will do to the child²⁵.

A panel may be asked to consider if a hearsay statement of a child should be admitted into evidence, either to avoid a child who is willing to participate having to give evidence in person, or alternatively where a child has taken an informed decision not to participate in a Fitness to Teach hearing or all attempts to make contact with a child witness have failed. It is our position that in considering whether or not to admit the hearsay evidence of a child (and therefore dispense with the requirement for a child to attend a Fitness to Teach hearing) a Panel should ensure that the best interests of the child are a primary consideration in that decision²⁶.

There are a number of principles that can be applied to our Fitness to Teach hearings from various family law and children’s hearings cases.  A panel should have regard to the below principles, alongside the ‘factors to be considered’ above, when evaluating the fairness of admitting prior statements of children:

• it is generally accepted that the experience of going to court, recounting traumatic events and being subjected to examination and cross-examination is especially distressing for children even with vulnerable witness measures in place²⁷  
• an unwilling child should rarely, if ever, be obliged to give evidence²⁸
• particularly for child witnesses, traditional examination and cross-examination in court are poor ways to elicit comprehensive and reliable accounts of their experience²⁹. A relevant factor will be the length of time since the events in question, as this will have a bearing on whether an account now can be as reliable as a near-contemporaneous account, especially if that interview is of high quality³⁰. Such an account given by a child in response to open-ended questioning, in relaxed and comfortable surroundings, is considered inherently more likely to be reliable than an account elicited by formal questioning in the stressful surroundings of a court room months, if not years, after the event³¹
• it is generally for the party who are proposing to depart from the reliance on ‘best evidence’ (and rely on hearsay evidence) to justify the position adopted³²
• there is not necessarily any advantage, in terms of a fair trial, in examining or cross-examining a child witness³³. The panel must weigh the advantages that the child’s live evidence will bring to the determination of the truth against the damage it may do to the welfare of the child³⁴. That principle is equally applicable in cases where the child whose welfare is to be considered is not the subject of proceedings³⁵. A panel is unlikely to be helped by a cross examination designed to intimidate, general accusations of lying or the child being taken slowly through their account again in the hope that something will turn up³⁶

Again, the factors listed above are not exhaustive and there may be additional factors to consider in individual cases.

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