Hearsay Evidence

Unless uncontroversial, it must be regarded with great caution

It is a frequent complaint that care proceedings are unfair because the court relies largely or entirely on hearsay evidence. ‘Hearsay’ in law is evidence provided by someone about something said by someone else and it usually is not admissible evidence in court proceedings for the simple reason that it cannot be tested in cross examination – the person who actually said the thing that is relied upon is not in court. For example, a report from a foster carer or a teacher about what a child said is hearsay.

Under section 2 of the Civil Evidence Act 1995 and Part 33 of the Civil Procedure Rules if a person wishes to rely on hearsay he must give advance notice to the other parties and explain why.

So why are proceedings involving children treated differently? Historically wardship proceedings in the High Court were an exception to the general rule that hearsay evidence would not be admitted. This is because in such cases the paramount consideration was the welfare of the children who were made wards of court, not the rights of the parties.

See Re W (Minors) (Wardship: Evidence) [1990] 1 FLR 203. The court said:

… wardship hearings are not subject to the strict rules of evidence and a judge exercising the wardship jurisdiction may admit evidence classed as hearsay which would otherwise be excluded.

The statutory justification for the use of hearsay evidence in care proceedings is found at section 96 of the Children Act 1989 which refers to evidence given by or in respect of a child. The Children (Admissibility of Hearsay Evidence) Order 1993, SI 1993/621, simply provides that such evidence shall be admissible “notwithstanding any rule of law relating to hearsay”.

Growing awareness of the impact on vulnerable witnesses of giving evidence has also impacted on the criminal courts – the Criminal Justice Act 2003 now allows for hearsay evidence to be given in criminal trials in a much wider set of circumstances than used to be the case.

Tension between admissibility of hearsay and rights to a fair trial

There is clearly a tension between the demands for a fair trial process pursuant to Article 6 of the ECHR and the need to protect children. The Supreme Court in W [children] 2010 UKSC 12 commented:

The object of the proceedings is to achieve a fair trial in the determination of the rights of all the people involved. Children are harmed if they are taken away from their families for no good reason. Children are harmed if they are left in abusive families. This means that the court must admit all the evidence which bears upon the relevant questions: whether the threshold criteria justifying state intervention have been proved; if they have, what action if any will be in the best interests of the child? The court cannot ignore relevant evidence just because other evidence might have been better. It will have to do the best it can on what it has.

Courts must consider hearsay evidence very carefully

But it cannot be a ‘free for all’. The court is entitled to the best evidence that can reasonably be put before it. The judge will have to consider hearsay evidence very carefully, particularly if it is relied upon to prove a particularly serious allegation, such as sexual abuse. The court in re W in 1990 commented:

In wardship, therefore, the rules as to the reception of statements made by children to others, whether doctors, police officers, social workers, welfare officers, foster-mothers, teachers or others, may be relaxed and the information may be received by the judge. He has a duty to look at it and consider what weight, if any, he should give to it. The weight which he places upon the information is a matter for the exercise of his discretion. He may totally disregard it. He may wish to rely upon some or all of it. Unless uncontroversial it must be regarded with great caution.

In considering the extent to which, if at all, a judge would rely on the statements of a child made to others, the age of the child, the context in which the statement was made, the surrounding circumstances, previous behaviour of the child, opportunities for the child to have knowledge from other sources, any knowledge, as in this case, of a child’s predisposition to tell untruths or to fantasise, are among the relevant considerations.

The most recent case to warn of the need to treat hearsay with caution is found in the judgment of the President in Re A (A Child) [2015] EWFC11, where he commented at paragraph 9:

…the local authority, if its case is challenged on some factual point, must adduce proper evidence to establish what it seeks to prove. Much material to be found in local authority case records or social work chronologies is hearsay, often second- or third-hand hearsay. Hearsay evidence is, of course, admissible in family proceedings. But, and as the present case so vividly demonstrates, a local authority which is unwilling or unable to produce the witnesses who can speak of such matters first-hand, may find itself in great, or indeed insuperable, difficulties if a parent not merely puts the matter in issue but goes into the witness-box to deny it. As I remarked in my second View from the President’s Chambers, [2013] Fam Law 680:

“Of course the court can act on the basis of evidence that is hearsay. But direct evidence from those who can speak to what they have themselves seen and heard is more compelling and less open to cross-examination. Too often far too much time is taken up by cross-examination directed to little more than demonstrating that no-one giving evidence in court is able to speak of their own knowledge, and that all are dependent on the assumed accuracy of what is recorded, sometimes at third or fourth hand, in the local authority’s files.”

It is a common feature of care cases that a local authority asserts that a parent does not admit, recognise or acknowledge something or does not recognise or acknowledge the local authority’s concern about something. If the ‘thing’ is put in issue, the local authority must both prove the ‘thing’ and establish that it has the significance attributed to it by the local authority.

Civil Evidence Act 1995

Section 4 sets out what considerations may have an impact on the weight of hearsay evidence

  • whether it would have been reasonable and practicable for the party by whom the evidence was adduced to have produced the maker of the original statement as a witness;
  • whether the original statement was made contemporaneously with the occurrence or existence of the matters stated;
  • whether the evidence involves multiple hearsay;
  • whether any person involved had any motive to conceal or misrepresent matters;
  • whether the original statement was an edited account, or was made in collaboration with another or for a particular purpose;
  • whether the circumstances in which the evidence is adduced as hearsay are such as to suggest an attempt to prevent proper evaluation of its weight.

16 thoughts on “Hearsay Evidence

  1. ian josephs

    One can understand hearsay evidence from children being considered for the reasons explained above. It is however outrageous that this is extended to evidence from social workers,so called experts,doctors and other adults who cannot be questioned but nevertheless their untested evidence is more often than not preferred to the testimony of parents in person in court.

    Reply
  2. Sarah Phillimore Post author

    Please provide evidence for your assertion that ‘untested evidence is more often than not preferred to the testimony of parents’ because that is emphatically NOT my experience.

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  3. C

    I am sorry to say, the allowance of hearsay from experts over the testimony of the parents is certainly my experiencee – and I am about to preesent a case to the RCJ on that very basis. You I know are sssssssssssslightly aware of the case, and were of the opinion that the hearsay overwhelmed the evidence to the contrary. I hope you are proved wrong; I fear you may not be, but justice is nowhere to be seen if that is the case.

    Reply
    1. Sarah Phillimore

      Hopefully there will be a reported judgment and then we can all make our own assessments.
      Hearsay evidence is not automatically irrelevant or unhelpful. Direct evidence is to be preferred but that does not make hearsay evidence worthless. As ever, it all depends on the facts of the particular case in front of us.

      Reply
  4. Kath Davis

    If evidence in Care Proceedings is not based on actual’fact’ then it is only hearsay, hearsay is not a ‘reliable’ or factual concrete source of information, far too many cases are processed with wrongful outcomes for the child as a result. Fact.

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  5. angelo granda

    Great reliance appears to be placed upon entries in ‘social work files’.
    Much in them is largely hearsay yet they are looked upon as an oracle.SW’s and Guardian’s are permitted to go through them and ‘cherry-pick’ entries to support their cases.Yet parents are not given access neither is the court.
    A question: To what extent is hearsay evidence given credence in other civil cases e.g. financial disputes,libel cases, parking and other relatively petty cases?
    In a financial case,I would imagine accounts will have to be revealed in full to the court.A party could not withhold ledgers entries hostile to his own case.
    My opinion,as an ordinary parent,is that a line should be drawn .In serious cases where removal of children is proposed ,forensic certitude is called for. If hearsay evidence is admitted then , in serious cases, they should be heard before a jury not a judge who ‘prefers’ professional evidence to that of parents.Cases should be heard without time restrictions too!
    On the other hand, I can see how less serious issues might be heard informally with more reliance on hearsay and that they can be decided summarily.
    Does this make sense to readers?

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  6. Sarah Phillimore Post author

    Yet parents are not given access neither is the court.

    Absolute, complete, dangerous nonsense.
    Absolute rubbish. Of course I and my clients get to see the case against them. Its called the trial bundle. The Judge makes decisions only on what is contained in the trial bundle.

    The assertion that parents don’t get to see the case against them is probably one of the most dangerous pieces of misinformation peddled about the family court system and I am disappointed to see it repeated here.

    I would be grateful if you refrain from repeating this – otherwise I will simply delete any further comments from you as I will have no choice but to think that you have no interest in reasoned debate but that you instead wish to scaremonger.

    But I would be interested in why you believe this to be so. Who told you? Does it come from your own personal experience? It simply isn’t true so I am intrigued as to why so many people say it is. I suspect its origins, as with so much that is destructive about the debate, are with Ian Josephs who has always claimed that parents and even the judge do not get to see the LA evidence.

    Absolute, complete rubbish.

    Reply
    1. angelo granda

      But I did not write that parents are not granted access to the trial bundle. Nor did I assert that parents do not see the case made against them.
      You have misunderstood what I wrote; perhaps you are busy and in a hurry this morning.

      I wrote quite correctly that parents do not have( full and unfettered) access to CS social work files and archives. Is that fair when the SW’s, LA solicitors, Guardian and Guardian’s solicitors do have full access and quote from them at will?They are able to ‘cherry pick’ entries (true or false ) in support of their cases but parents and their solicitors are not.
      I also made the point that despite many of the entries being based on hearsay,the Court appears to treat social work files as an oracle.Parents cannot respond fairly without seeing them,surely not?

      Reply
      1. Sarah Phillimore Post author

        I am sorry if I am in a rush and not reading things properly. But I don’t think that is the problem.

        If SW and Guardians rely on information in other reports, parents are entitled to see that information and to challenge it. It must therefore go into the trial bundle.

        If parents do not engage with their lawyers and do not trust them, then yes, I accept they are at a huge disadvantage because they may not be able to read through all the documents and identify what is missing and when disclosure is needed.

        But to suggest – as I think you are doing – that evidence is deliberately and wilfully withheld is simply wrong. This is the UK, not Russia or North Korea.

        Reply
  7. angelo granda

    I will say that I have never ever visited a website or read any blog by Mr.Josephs although I have seen some of his views on the CPR.
    I respect his right to an opinion alongside the others.
    I have visited Mr.Hemming’s website (JFF) many times but do not read his personal ‘blogs).
    Actually,I do not believe in blogs or read them anywhere. I prefer to comment on issues raised on the CPR.

    Reply
    1. Sarah Phillimore Post author

      If you want to play a genuine part in this debate, then I am afraid – as far as I am concerned – you do have to acquaint yourself with Mr Joseph’s 10 Golden Rules and decide whether or not you think this is a) sensible advice or b) dangerous and very unhelpful.

      I tend to find this is a very useful shortcut for me when deciding whether or not I am going to engage with people or whether I must, sadly, add them to my spreadsheet of conspiraloons.

      Reply
      1. angelo granda

        Sarah, Please let me explain again.The CS have two or three computer databases on which they store notes,information and detailed professional reports on a parent and their children. Parents and their solicitors are not permitted access to these computer records in order to support their case in court. They are not allowed to cross the threshold of the computer room. Both other parties are!

        In their assessments and reports to court, they will often refer to the records saying ” it is recorded in social care records that—” or ” it was noted that—-“. You must have noticed this yourself. For example,they might refer to a referral or a particular concern in a report to court but fail to report that it was examined fully at the time and found to be baseless.
        They pick and choose at will.
        This is not conspiracy theory or anything else; it is true.Next time you get the chance ,why not demand that your client be allowed access to the complete child-protection records of their family?I doubt they will agree but then I may be wrong.

        I am not going to break my GOLDEN RULE not to visit Mr.Josephs website for you or anyone else.I like to keep an open mind and I have not commented as to his advice to parents or the right or wrong of him assisting expectant mothers to emigrate.I do feel free,however,to comment on his posts to this forum.I am not interested in his golden rules or your opinion of him.I take his remarks on here at face-value as I do everyone elses.I will not enter into extremist arguments or respond to any madcap theorists and reserve my judgment on whether or not Mr. Josephs is one such.
        Please accept my opinions for what they are.Independent ones of an ordinary parent!

        Reply
        1. Sarah Phillimore Post author

          If they are relying on anything that I wish to contest, they must produce the primary evidence. They simply cannot rely upon ‘reports’ that they do not evidence.

          they might refer to a referral or a particular concern in a report to court but fail to report that it was examined fully at the time and found to be baseless. this has happened to me in a number of cases. But because I have the records in front of me i have been able to track the original referral and see how it later became misrecorded. Not out of deliberate malice but carelessness. Both are equally destructive to a parent, I accept. That’s why the State pays me to ensure that proceedings are fair.

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          1. Sam

            In my case certainly matters were overlooked I am not saying lawyers are legal aid losers, rather that problems arise from such things as continuity. I had one legal executive ,four solicitors and a barrister 6 months into proceedings.
            I don’t know if this is normal or very bad luck.

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