Witnesses in family proceedings are frequently vulnerable and the normal routines of the justice system sometimes have to be adapted to take account of their particular needs. In a case on point, the Court of Appeal ruled that a mother accused of harming her baby daughter was denied her human right to a fair hearing.
Following a fact-finding hearing, a judge found that either the mother or her partner had inflicted multiple bruises on the little girl and that each of them knew which one of them was the perpetrator. That ruling was of crucial importance as it was bound to inform all future welfare decisions in respect of the girl and her sibling.
During the hearing, the judge expressed growing concern that the mother's cognitive functioning might be impaired. Parts of her evidence were, the judge observed, so muddled as to be worthless. The mother was subsequently assessed as having an extremely low range of intellectual and verbal communication abilities. The judge nevertheless refused to reopen the fact-finding hearing.
In upholding the mother's appeal against that outcome, the Court noted that, for her, the stakes could not be higher in that the judge's ruling meant that she faced the permanent removal of both her children from her care. It was most unfortunate that the extent of her difficulties had not been recognised prior to the hearing. The judge had done all she could to ameliorate the mother's position, but the steps taken were not enough to enable her to give her best evidence.
The Court concluded that the mother had suffered a fundamental breach of her right to a fair hearing, enshrined in Article 6 of the European Convention on Human Rights. The judge's conclusions were overturned and the Court directed that the mother should be permitted to give her evidence via a suitably qualified intermediary at a fresh fact-finding hearing.
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