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)  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)  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,  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.