PROVING THINGS 29: MAKE SURE THE WITNESS EVIDENCE DEALS WITH THE RELEVANT ISSUES

In Re B (a minor) (habitual residence) [2016] EWHC 2174 (Fam) Mr Justice Hayden had some important observations on the preparation of witness evidence. Although made in a family case the comments are of general observation: those who take witness statements must know the relevant law and make sure that the statements deal with evidence on those issues.

THE CASE

The court was considering the “habitual residence” of a young child.  Both parties had filed witness evidence.  Much of the evidence dealt with the nature of the relationship between mother and father.  The judge’s complaint was that very little of the evidence dealt with the key issues that the court had to determine.

THE JUDGMENT
“If there is one clear message emerging both from the European case law and from the Supreme Court, it is that the child is at the centre of the exercise when evaluating his or her habitual residence. This will involve a real and detailed consideration of (inter alia): the child’s day to day life and experiences; family environment; interests and  hobbies; friends etc. and an appreciation of which adults are most important to the child. The approach must always be child driven. I emphasise this because all too frequently and this case is no exception, the statements filed focus predominantly on the adult parties. It is all too common for the Court to have to drill deep for information about the child’s life and routine. This should have been mined to the surface in the preparation of the case and regarded as the primary objective of the statements. I am bound to say that if the lawyers follow this approach more assiduously, I consider that the very discipline of the preparation is most likely to clarify where the child is habitually resident. I must also say that this exercise, if properly engaged with, should lead to a reduction in these enquiries in the courtroom. Habitual residence is essentially a factual issue, it ought therefore, in the overwhelming majority of cases, to be readily capable of identification by the parties.
Thus:
i) The solicitors charged with preparation of the statements must familiarise themselves with the recent case law which emphasises the scope and ambit of the enquiry when assessing habitual residence, (para 17 above maybe a convenient summary);
ii) If the statements do not address the salient issues, counsel, if instructed, should bring the failure to do so to his instructing solicitors attention;
iii) An application should be made expeditiously to the Court for leave to file an amended statement, even though that will inevitably result in a further statement in response;
iv) Lawyers specialising in these international children cases, where the guiding principle is international comity and where the jurisdiction is therefore summary, have become unfamiliar, in my judgement, with the forensic discipline involved in identifying and evaluating the practical realities of children’s lives. They must relearn these skills if they are going to be in a position to apply the law as it is now clarified.
The simple message must get through to those who prepare the statements that habitual residence of a child is all about his or her life and not about parental dispute. It is a factual exploration.”

RELATED POSTS

THE “PROVING THINGS”: SERIES

DRAFTING WITNESS STATEMENTS

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