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Orders of the Day

Children Bill [Lords]

As amended (in the Standing Committee), further considered.

New Clause 32

Evidence given by, or with respect to, children

.--(1) Subsection (2) applies where a child who is called as a witness in any civil proceedings does not, in the opinion of the court, understand the nature of an oath.

(2) The child's evidence may be heard by the court if, in its opinion--

(a) he understands that it is his duty to speak the truth ; and (

(b) he has sufficient understanding to justify his evidence being heard.

(3) The Lord Chancellor may by order make provision for the admissibility of evidence which would otherwise be inadmissible under any rule of law relating to hearsay.

(4) An order under subsection (3) may only be made with respect to--

(a) civil proceedings in general or such civil proceedings, or class of civil proceedings, as may be prescribed ; and

(b) evidence in connection with the upbringing, maintenance or welfare of a child.

(5) An order under subsection (3)--

(a) may, in particular, provide for the admissibility of statements which are made orally or in a prescribed form or which are recorded by any prescribed method of recording ;

(b) may make different provision for different purposes and in relation to different descriptions of court ; and

(c) may make such amendments and repeals in any enactment relating to evidence (other than in this Act) as the Lord Chancellor considers necessary or expedient in consequence of the provision made by the order.

(6) Subsection (5)(b) is without prejudice to section 88(4). (7) In this section--

"civil proceedings" and "court" have the same meaning as they have in the Civil Evidence Act 1968 by virtue of section 18 of that Act ; and

"prescribed" means prescribed by an order under subsection (3).'.-- [The Solicitor-General.]

Brought up, and read the First time.

10.30 pm

The Solicitor-General (Sir Nicholas Lyell) : I beg to move, That the clause be read a Second time.

The new clause concerns the evidence to be given by children or which may be given or received in respect of children. Subsection (2) of the new clause will bring about a welcome reform in the law of evidence relating to civil proceedings. It will allow the unsworn evidence of a child of tender years to be received in evidence in such proceedings where, in the court's opinion, he does not understand the nature of the oath but is of sufficient understanding to justify the reception of his evidence and understands the duty to tell the truth. The provisions will bring the law in this respect into line with the position in criminal proceedings.

Subsections (3) onwards deal with a separate topic. Subsections (3) and (4) will give the Lord Chancellor power to make orders overriding rules relating to hearsay in civil proceedings in respect of evidence in connection with the upbringing, maintenance or welfare of a child. We consider it necessary to give the Lord Chancellor that


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power because until very recently it had been the practice of courts to moderate the strict rules of evidence in civil proceedings concerning children, especially with regard to admitting hearsay evidence of a child's statement.

However, the effect of the recent court of appeal decisions in the cases of Re. H and Re. K. is that this flexible approach is mistaken and that, except in wardship, hearsay evidence can be admitted only in accordance with the exceptions to the general rule which is recognised by law. Accordingly, as hearsay of children's statements used to be admitted in evidence, that decision will effectively remove a source of evidence that was available to courts or will result in children having to undergo more often the trauma of giving direct oral evidence. It may cause cases to drift into wardship, given the exception in that jurisdiction, to avoid the effect of the decision.

In order to remedy the situation, the power in subsection (3) will enable the Lord Chancellor to make orders overriding the rules relating to hearsay in any or all civil proceedings in respect of evidence in connection with the upbringing, maintenance or welfare of a child.

Government amendment No. 368 will ensure that subsections (3) to (7) of the new clause will come into effect on Royal Assent and the Lord Chancellor will exercise his power by making an appropriate order as soon as possible thereafter. Subsections (5) and (6) will provide the necessary flexibility. The Lord Chancellor's power will thus be exercisable to provide for the admissibility of statements made orally, in writing in any form prescribed by the order, or by means of any form of recording--for example, audio or video tape. Further, the power will allow the overriding of evidential rules entirely or, in respect of certain types of evidence only--for example, children's statements--or in respect of certain types of case only. It will allow for different provisions to be made for different courts and tiers of courts.

The substance of the new clause will be welcomed by the House.

Mrs. Llin Golding (Newcastle-under-Lyme) : I welcome most of the provisions in the new clause. However, I have serious misgivings about the inclusion of subsection (2)(a) which says :

"he understands that it is his duty to speak the truth". Surely that is absurd. We should listen to children. This is a Bill for children and we are trying to give children additional rights. It is absurd to exclude them because they cannot understand the concept of duty to speak the truth. Surely we should not expect children to understand the concept behind the words "duty" and "truth". Many adults understand the concept of a duty to speak the truth but do not do so, yet we listen to them. We should allow children to give evidence in court if they appear capable of giving truthful evidence.

Subsection (2)(a) should be deleted. The only criterion that we need for listening to children is contained in subsection (2)(b) which says :

"he has sufficient understanding to justify his evidence being heard."

I hope that the Solicitor-General will reconsider this part of the new clause.

Mr. Roger Sims (Chislehurst) : I welcome the new clause, inasmuch as it clarifies the law, and makes it what the practice was thought to be until a few months ago. I also welcome the other means by which evidence can be


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given. As I understand the clause, that means that, in the fullness of time, the Government could decide that video evidence of an interview with a child taken soon after an offence had come to light could be admitted as evidence in court. My hon. and learned Friend will be aware that a number of us have been pressing for this for some time.

What progress is the Pigott committee making? When is it likely to report? When will we hear from the Government what their reaction to that report is likely to be? Some of us hope that the outcome will be that the Government will feel that, on principle, such video recordings of interviews should be allowed. For once, when the Government announce such a decision, instead of saying that they will make it possible under legislation as soon as possible, the legislation will already be in place and the Secretary of State will have powers to make the appropriated regulations. I would be grateful if my hon. and learned Friend would say whether that assumption is correct.

Mr. Peter Hardy (Wentworth) : I support the case advanced by the hon. Member for Chislehurst (Mr. Sims). As the Solicitor-General knows, the hon. Gentleman plays a significant part in the central executive of the National Society for the Prevention of Cruelty to Children, and the Solicitor-General is aware of the view of the NSPCC, with which I am connected. I hope that he will give the hon. Gentleman a positive and acceptable response.

I agree with my hon. Friend the Member for Newcastle-under-Lyme (Mrs. Golding) about subsection 2(a). My hon. Friend was right to say that if one maintains subsection 2(b) in the new clause, the purpose embodied in subsection 2(a) would be inadequately served. I can see that a great deal of time and energy will be expended on defining the words "duty" and "truth" and in arguing whether a child can or cannot understand those concepts. It is unnecessary to have subsection 2(a) because the court would have to accept that the child had a sufficient understanding of the situation to be allowed to give evidence in any case. I appeal to the Solicitor-General to read that reasonable proposition, and to accept that subsection 2(a) should not stand part of the Bill.

The Solicitor-General : I understand the point that the hon. Member for Newcastle-under-Lyme (Mrs. Golding) made, and that the hon. Member for Wentworth (Mr. Hardy) reinforced. However, what they are seeking and what is embodied in the Bill match better than they give credit for. I have appeared in a number of cases concerning children when the question of understanding the oath had to be dealt with. That has now been done away with. In reality, the court looked at whether the child understood the meaning of speaking the truth, and this will open up more cases, which will be welcome to the House. If the child is to understand sufficient to justify his evidence being given, that, as the hon. Gentleman said, subsumes subsection 2(a). While it could be argued that the wording is tautologous, it cannot be argued that it is to be unclear.

I cannot at the moment give my hon. Friend the Member for Chislehurst (Mr. Sims) a definite answer about the timing of our response to the Pigott committee, but if I am in a position to do so, I will write to him and to the hon. Member for Wentworth.

Question put, That the clause be read a Second time :

The House divided : Ayes 183, Noes 0.


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Division No. 335] [10.39 pm

AYES

Alexander, Richard

Alison, Rt Hon Michael

Amery, Rt Hon Julian

Amess, David

Amos, Alan

Arbuthnot, James

Arnold, Jacques (Gravesham)

Ashby, David

Atkins, Robert

Baldry, Tony

Banks, Robert (Harrogate)

Barnes, Mrs Rosie (Greenwich)

Batiste, Spencer

Beaumont-Dark, Anthony

Beith, A. J.

Bellingham, Henry

Bennett, Nicholas (Pembroke)

Benyon, W.

Bevan, David Gilroy

Blackburn, Dr John G.

Boscawen, Hon Robert

Boswell, Tim

Bowis, John

Brazier, Julian

Browne, John (Winchester)

Bruce, Ian (Dorset South)

Bruce, Malcolm (Gordon)

Buck, Sir Antony

Burns, Simon

Burt, Alistair

Butcher, John

Butler, Chris

Butterfill, John

Campbell, Menzies (Fife NE)

Carlile, Alex (Mont'g)

Carlisle, John, (Luton N)

Carlisle, Kenneth (Lincoln)

Carrington, Matthew

Carttiss, Michael

Chalker, Rt Hon Mrs Lynda

Chapman, Sydney

Chope, Christopher

Clark, Sir W. (Croydon S)

Clarke, Rt Hon K. (Rushcliffe)

Colvin, Michael

Coombs, Anthony (Wyre F'rest)

Coombs, Simon (Swindon)

Cran, James

Currie, Mrs Edwina

Curry, David

Dorrell, Stephen

Douglas-Hamilton, Lord James

Dover, Den

Dunn, Bob

Durant, Tony

Eggar, Tim

Evennett, David

Fallon, Michael

Favell, Tony

Fearn, Ronald

Fenner, Dame Peggy

Fishburn, John Dudley

Forman, Nigel

Forsyth, Michael (Stirling)

Forth, Eric

Fox, Sir Marcus

Freeman, Roger

French, Douglas

Gale, Roger

Garel-Jones, Tristan

Gill, Christopher

Glyn, Dr Alan

Goodlad, Alastair

Goodson-Wickes, Dr Charles

Gorman, Mrs Teresa

Gow, Ian

Greenway, Harry (Ealing N)

Greenway, John (Ryedale)

Gregory, Conal

Griffiths, Peter (Portsmouth N)

Ground, Patrick

Hague, William

Hamilton, Neil (Tatton)

Hampson, Dr Keith

Hanley, Jeremy

Hargreaves, Ken (Hyndburn)

Harris, David

Haselhurst, Alan

Hayhoe, Rt Hon Sir Barney

Hayward, Robert

Heddle, John

Hind, Kenneth

Howarth, G. (Cannock & B'wd)

Howe, Rt Hon Sir Geoffrey

Howells, Geraint

Hughes, Robert G. (Harrow W)

Hunt, Sir John (Ravensbourne)

Hunter, Andrew

Irvine, Michael

Jack, Michael

Janman, Tim

Jessel, Toby

Johnson Smith, Sir Geoffrey

Johnston, Sir Russell

Jones, Gwilym (Cardiff N)

Key, Robert

Kirkwood, Archy

Knapman, Roger

Lester, Jim (Broxtowe)

Livsey, Richard

Lord, Michael

Lyell, Sir Nicholas

MacKay, Andrew (E Berkshire)

Maclean, David

McLoughlin, Patrick

Mans, Keith

Marlow, Tony

Maude, Hon Francis

Mayhew, Rt Hon Sir Patrick

Mellor, David

Mitchell, Sir David

Morris, M (N'hampton S)

Morrison, Sir Charles

Moss, Malcolm

Neale, Gerrard

Nelson, Anthony

Neubert, Michael

Nicholls, Patrick

Nicholson, David (Taunton)

Norris, Steve

Onslow, Rt Hon Cranley

Oppenheim, Phillip

Paice, James

Parkinson, Rt Hon Cecil

Patnick, Irvine

Pattie, Rt Hon Sir Geoffrey

Pawsey, James

Peacock, Mrs Elizabeth

Porter, David (Waveney)

Powell, William (Corby)

Raison, Rt Hon Timothy

Redwood, John

Riddick, Graham

Roberts, Wyn (Conwy)

Rowe, Andrew

Rumbold, Mrs Angela

Sackville, Hon Tom

Shaw, Sir Giles (Pudsey)

Shaw, Sir Michael (Scarb')

Shersby, Michael

Sims, Roger

Speed, Keith

Spicer, Sir Jim (Dorset W)

Stern, Michael


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