C v C

MISS E McGRATH (instructed by Field Overell, 42 Warwick Street, Leamington Spa, Warwickshire) appeared on behalf of the Appellant MR E DISMORR (instructed by Robert Lunn & Lowth, 2 Sheep Street, Stratford upon Avon, Warwickshire) appeared on behalf of the Respondent ____________________

Miss�McGrath argues that the judge did not address herself to whether those conditions were satisfied in this case in relation to L. The conditions are:

However, it is clear from the wording of section�5, which I�have quoted, that the burden lies on the person who asserts that the maker of the statement is not competent to make that assertion and to make it out. That does not appear to have happened in the court below. In any event, it would have been difficult to do so, bearing in mind L's age and the fact that she is doing well at school, to say nothing of the appellant's own case that she knows what a�lie is. There is little or nothing in that point.

That section makes it plain that there is a discretion in the court whether or not to insist that such a�person is called. The relevant rule for this purpose is contained in the County Court Rules 1981 Order 20 rule�16.

In this case, of course, there was neither such a�video recorded interview, nor was there any witness statement from the child. But she went on to consider the circumstances that L was ten and if called she would be required to give evidence to support one of her parents against her other parent: