In recent years, a parent has sometimes chosen not to give oral evidence in care proceedings and the Jersey Court has been deprived of hearing and seeing that parent in the witness box.
One can understand why that parent’s lawyer might have given advice not to expose oneself to cross-examination, but it’s not a good result for the child and poses problems for the Court. How do you deal with the concerns surrounding that parent for instance?
As was stated in Re S (A Child) (Costs: Care Proceedings)  UKSC 20 at para.21 –  2 FLR 208:
“It would be difficult indeed for a court to decide how to secure that the child has a meaningful relationship with each parent without hearing from them both. It would be difficult indeed for a court to decide the best way of protecting a child from the risk of harm without hearing from her parents and those whose task it is to protect her. “
In some cases, where there is clear accusation against a parent, it might be possible for the Court to conclude that the accusation is true, or at least to draw an adverse inference from the failure of that parent to give evidence: Re O (Care Proceedings: Evidence)  EWHC 2011  1 FLR 161. However, in other cases, it might be more difficult to draw a particular inference where there is no central allegation, or the issues are more nebulous and less clear cut.
Re S answers the problem as follows:
“That is why parents are compellable witnesses in care proceedings, even when it is alleged that they have committed criminal offences.”
But who should call a reluctant parent to give evidence? In Re Y & K  EWCA Civ 669 at para.35 it was suggested that the Guardian acting for the child should do so:
“……parents can be compelled to give evidence in care proceedings; they have no right to refuse to do so; they cannot even refuse to answer questions which might incriminate them. The position is no different in a split hearing from that in any other hearing in care proceedings. If the parents themselves do not wish to give evidence on their own behalf there is, of course, no property in a witness. They can nevertheless be called by another party if it is thought fit to do so, and the most appropriate person normally to do so would be the guardian acting on behalf of the child.”
Another reason why one should have both a Guardian and a lawyer acting for a child I hear you say!
Article 74 of our Children (Jersey) Law reflects the UK position in that a parent cannot refuse to answer a question in the witness box, but there is some protection from prosecution as any admission cannot then be used in evidence in any criminal proceedings.
The above authorities were recently brought to the attention of the Royal Court where one parent had initially refused to give evidence in care proceedings; the Royal Court remarking that it had become quite common for parents to decline to go into the witness box. As it turned out, the parent then reconsidered their position and thankfully gave live evidence. It is to be hoped that Royal Court will touch upon the issues when giving judgement.