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.

27 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.

  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.

  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.

    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.

  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.

  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?

  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.

    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?

      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.

  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.

    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.

      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!

        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.

          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.

  8. Angelo Granda

    Further to a discussion on the resource at the weekend started by an anonymous reader on the subject of hearsay in Family Courts , i want to make the point that ,especially in S47 cases, often MOST ( appx 90% by my estimate) of the evidence is hearsay evidence. As Sarah correctly wrote in the above post , hearsay evidence is given on the reports of others not seen and vouched for by the actual witness . This will include most of the assessments made ,for example, by Guardians and other court experts who make them largely on the strength of SW reports and databases.
    As Sarah also wrote, hearsay evidence is not generally admissible in law! Before i go on ,I would much appreciate her legal answer to these 3 questions.

    1. What are the specific reasons why it is not generally admissible in law?
    2. Why is it admissible in the Family Law Courts?
    3. Are there any other Divisions ( areas of law ) where it is admissible?

    1. Sarah Phillimore Post author

      Hearsay evidence can be admitted in any court at the discretion of the Judge. It is usually admitted in family cases because of the importance of keeping children safe. However that does not mean that the court treats it with the same gravity as it does primary evidence and it is utter nonsense to say 90% of section 47 investigations proceed on hearsay alone.

      If you want me to engage with that statistic please confirm how and what basis you reach that percentage.

  9. Angelo Granda

    I never wrote that 90% of section 47 investigations proceed on hearsay alone!

    I wrote something completely different .By my estimate which is based on personal experience and on the sight of court bundle of another case, most of the evidence is hearsay evidence.There is very little real evidence; most of it is made on the reports of others.
    I appreciate it may be admissible at a judge’s discretion in any court ,thank you, but please ,Sarah, why is hearsay not generally admissible ?
    Thanks also for your reply to question 2.
    I learn all the time from this resource and ,as I asked that question i anticipated the reply would be because it is thought to be in the best interests of children. Keeping children safe is another over-used cliche but i agree it is very important that we do so.
    I have said approximately 90% of the evidence by my estimate is hearsay and i don’t think that is too high. I am including professional opinion based on the reports of others also evidence ( sometimes wrongly taken as true as a matter of course) from Public records and documents.

    1. Sarah Phillimore Post author

      Hearsay is not generally admissible because it isn’t as good as primary evidence. It cannot be tested or challenged in the same way as the maker of the statement is not in court. It is second or third hand evidence. So it is not as good as primary evidence but that doesn’t make it worthless and sometimes it can help the court. All must be cautious around it.

      i am sorry if I misinterpreted what you wrote but I still don’t understand why or how you can say ‘90%’ of anything with confidence. How is that calculated? On what basis?

  10. Angelo Granda

    I have done my own estimate based on my own experience and one other person’s . I don’t expect everyone to agree with it; i don’t agree with many official estimates and statistics either! What would be your estimate?

    Readers,i am not a lawyer ,Sarah is a trained , experienced barrister which is why i asked her the questions first. As always we are not far apart.

    Hearsay is not generally admissible in law because it cannot be tested or challenged IN THE SAME WAY as the maker of the statement ,writer of the report,opinion,fears etc. is not in court. It is not made under oath thus has far less value than statements which are made on oath.

    However, IT CAN BE TESTED. The specific reason why it is not generally admissible is because hearsay evidence has to be ‘heard out’ and tested in very great detail in order to ensure a fair hearing when serious decisions are to be taken by a court as to sanctions,sentencing and so on. The main reason it isn’t admitted is because of the time considerations . For all the hearsay evidence to be tested adequately, it would take much too long. This is why they prefer only to ‘prove’ matters of fact on real evidence and statements made under oath.Hearsay evidence is not fact .

    As you rightly say Sarah, hearsay evidence is widely acceptable in the civil law system. When admitted it has to be tested in great detail. There are lots and lots of reasons why hearsay can be wrong including biased cherry-picking,false documents,forged signatures, misreading, biased reading,incompetency of Public officials, lack of integrity of the reporting person, forgery of signatures , misunderstanding of statements and words uttered often long before, some statements may have been said or written under co-ercion or when in a state of overwork,stress etc. There are countless reasons why hearsay evidence is not to be relied on and why it carries less weight. It is almost impossible to cut through all the lies,half-truths, allegations and biased opinion as pointed out by one of the Family court judges.
    I guess this is why cases such as libel,fraud etc. can sometimes take months and months to be examined fairly. Particularly in an era when the use of juries has diminished and a judge officiates ,great care needs to be taken.Especially when the facts are contested, they have to be checked out and vouched for and it will take a long time in court and out obtaining original documents,archives and tracing original witnesses etc. to give evidence under oath if they are still alive.Entries can easily be inputted to computer databases unsigned,reports can be altered, police intelligence can be unconfirmed etc.etc.ad infinitum. The SW who used to comment on this resource told us her ‘evidence base’ is the LA database.

    Where am i going? Well, surely you will agree ,Sarah that if hearsay evidence is admitted to Family Law cases particularly the serious public law ones then it cannot be a fair hearing in accordance with article 6 when the judicial system is broken and severe restrictions put upon the time available .Hearsay evidence does not fit with summary justice. There are so few judges and courts available , the representation available to respondents is iffy and there appears to be a 26 week time limit before the case starts.

    Is such a process (or lack of it) compatible with our ECHR convention rights?

    1. Sarah Phillimore Post author

      My estimate – based on over 20 years and many hundreds of cases – is that the vast majority of cases in which I am involved, proceed on the basis of proper evidence which is fairly tested in court. I have had experience of probably around 20 cases where I felt serious concern about the standard of evidence and investigation; and I challenged those cases.

      The real problems – in my mind – are the lack of consistent and coherent support networks available to parents, the inability of social workers to develop trusting relationships with parents and the degree of minimisation and denial that many parents adopt. All these issues interplay with one another.

  11. Angelo Granda

    Yes, but does that mean you count as proper evidence the hearsay on the database? They admit themselves that the reports and unconfirmed intelligence entered into it by others who are not called to court forms the base of their case.
    Do you regard a written referral as ‘proper’ or as hearsay? If the respondent denies its truth,is the referrer always called to give evidence on oath?

    1. Sarah Phillimore Post author

      A referral should then be investigated – so the investigation is primary evidence and the person who has investigated can be questioned at court. Referrals aren’t simply put before a court with nothing more. Referrals trigger a section 47 investigation which may then trigger care proceedings.

  12. Angelo Granda

    If a referral triggers a s47 investigation and the Police are assigned to it, i propose that care proceedings should not be commenced until the investigation has been carried out. Otherwise, the referral is hearsay.In many cases, you can take it from me,Sarah, the Police Officer responsible is not questioned in the Family Court . Many times the investigations into hearsay allegations aren’t even revealed in Court ( especially when findings go against the LA concerned) and it is claimed that investigations are incomplete. The Court doesn’t have the time to hear out hearsay evidence as i have discussed above, thus,as i said, hearings are unfair.
    I must say, though, that we and other commentators have discussed all this before. The credibility of all evidence should be well-investigated before any action is decided upon but particularly before fact-findings either out-of-court or in! I have seen a letter from the director of social services to an MP stipulating that procedure as a vital one and i have quoted extracts on this resource.

    The problems begin when the LA lawyers sidestep the guidelines and procedures at the earliest stages and the Court covers it up.I believe you have agreed before that the Family Court hasn’t the time to wait for the results of investigations; they take too long.

    1. Sarah Phillimore Post author

      the Police should have returned the children upon Mum sleeping it off. They should have anticipated the sobering-up process would have not taken long and returned the children home forthwith and i would expect it took less than 24 hours. Thus,again correct procedures were flouted.

      someone who is drunk in charge of little children, to the extent that the police have to be called is not safe to be trusted with children. The sobering up process?!? so the police just drop the children back and come and pick them up again next time mum goes on a bender? What rubbish. This is dangerously bad parenting, I am not surprised the children were removed and they should not be returned unless and until the drunk parent gets help to deal with their dangerous and damaging addiction, which is incompatible with safe parenting.

  13. Angelo Granda

    I do understand your fears but it I don’t agree there is any excuse to overreact and remove children from home without any real evidence except in investigated hearsay.
    If it is rubbish then you should campaign to get the law changed because it is the statute not I that quite clearly stipulates that:-
    a) children not to be removed without an order from a court.
    b) Police protection to be kept under review and to be for no longer than 72 hours
    c) The SW’s to be open and honest; must follow correct procedure and go to court with facts not abuse S20’s.

    The safeguards are there to protect children from harm in care .Professionals cannot act on irrational fears such as yours that hearsay reports of drunkenness is dangerous and damaging addiction.You need evidence first,I’m afraid.


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