Private law rights of children: Part 1

20160418_164836-e1544888626602.jpgA child’s ‘views’ in the family courts

 

How many children know they have rights to ‘express their views freely’ in court proceedings – especially in family courts – where a court is making a decision which affects a child? And if they don’t know, how are they going to find out? Even if they do know about their rights, how do children get their views before the judge? What are the steps they must take to get what they want to say before the court?

 

This first post in a series of three will say a little bit about what rights there are for children. Part 2 will look at procedure for how rights – views – are dealt with as a court process. Part 3 will look at expression of a child’s views, wishes and feelings in practice, and what court procedure rules actually permits.

 

I don’t know what is taught about children’s rights in individual schools. As a family lawyer I have a good idea that children who are the subject of proceedings are told very little about what their rights are. Few judges, I suspect, go on the front foot to comply with the law and to find out themselves what a child’s views are. And I fear, many specialist family lawyers are not sufficiently versed in the intricacies of children law to know what they need to do to help children to apply in private law (Children Act 1989 (CA 1989) Pt 2) proceedings; or to be sure that a child talks to a judge when it is appropriate.

 

Children and Children Act 1989 Pt 2 proceedings

 

Children’s rights are likely to arise in private children proceedings (Children Act 1989 (CA 1989) Pt 2 and especially s 8). This will arise in three sets of circumstance explained in this article:

 

  • A child who wants to make a free-standing application, whether or not with representation (CA 1989 s 10(8); and as did CT in Re CT (below));
  • A child who wants to join in existing proceedings (with or without representation: eg Cambra v Jones (Contempt Proceedings: Child Joined as Party) [2014] EWHC 913 (Fam), [2015] 1 FLR 263, Sir James Munby P); or within existing CA 1989 Pt 2 proceedings (eg between the child’s parents), for the child to proceed alone or represented by the child’s own lawyer (eg Mabon v Mabon (below));
  • A child whose instructions to the child’s instructed solicitor conflict with those of the child’s guardian; and the child wants his or her part in the case to proceed on the child’s instructions (on analogy with FPR 2010 r 16.29(2)(a) for Pt 4 proceedings)

 

This article does not deal with CA 1989 Pt 4 proceedings (care and supervision orders; also called ‘specified proceedings’ (CA 1989 s 41(6)). There a children’s guardian and a solicitor for the child are appointed by the court (CA 1989 s 41(2) and (3)).

 

Many experienced children lawyers have difficulty in unravelling what type of children proceedings are involved in individual cases (eg Black LJ (now Lady Black in the Supreme Court) in Re W (A Child) (Care Proceedings: Child’s Representation) Practice Note [2016] EWCA Civ 1051, [2017] 1 WLR 1027: see Preface to my Children’s Views and Evidence by Bloomsbury Professional, 2017 https://www.bloomsburyprofessional.com/uk/childrens-views-and-evidence-9781526503176/  (and see Chapter 6)).

 

A child’s ‘views to be expressed freely’

 

United Nations Convention on the Rights of the Child 1989 Art 12, as relevant to a child’s views on a case, says:

 

1 States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

2 For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

 

Charter of Fundamental Rights of the European Union (2000/C 364/01) Art 24, on a child’s views, echoes the position on ‘views’: ‘1 Children… may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity.’

 

In Re D (A Child) (International Recognition) [2016] EWCA Civ 12, [2016] 1 WLR 2469, [2016] 2 FLR 347 (the child was seven) Ryder LJ identified CA 1989 s 1(3)(a) as a ‘fundamental principle’ English law: that is ‘the ascertainable wishes and feelings of the child concerned’ in a case must be considered by a court. This provision said Ryder LJ is ‘mandatory’; though the court has a choice (ie a ‘discretion’) on the extent to which views are taken into account (see [38]).

 

Participation

 

A child is therefore entitled to ‘participate’ in the proceedings which are about her:

 

[44] … The law in England and Wales includes the right of the child to participate in the process that is about him or her. That is the fundamental principle that is reflected in our legislation, our rules and practice directions and our jurisprudence. At its most basic level it involves asking at an early stage in family proceedings whether and how that child is going to be given the opportunity to be heard. The qualification in section 1(3)(a) CA 1989 like that in article 12(1) of the UNCRC 1989 relates to the weight to be put upon a child’s wishes and feelings, not their participation.

 

A child must have his or her views heard, but not necessarily followed. This was explained by Lady Hale of an eight-year old child in Re D (Abduction: Rights of Custody) [2006] UKHL 51, [2007] 1 AC 619 [2007] 1 FLR 961 where she said of D, now aged eight, who did not want to go back to Romania (as described by Lady Hale at [20]-[22]), how should his views be considered:

 

[57]… As any parent who has ever asked a child what he wants for tea knows, there is a large difference between taking account of a child’s views and doing what he wants…. There is now a growing understanding of the importance of listening to the children involved in children’s cases. It is the child, more than anyone else, who will have to live with what the court decides. Those who do listen to children understand that they often have a point of view which is quite distinct from that of the person looking after them. They are quite capable of being moral actors in their own right. Just as the adults may have to do what the court decides whether they like it or not, so may the child. But that is no more a reason for failing to hear what the child has to say than it is for refusing to hear the parents’ views.

 

A principle of ‘universal application’

 

To ensure every child participates in proceedings about that child the court must ask: how is the child to be heard? In Isobel’s case – says the UN – she is entitled to ‘express her views’, but how does she go about getting her views heard by the judge? Ryder LJ helpfully described hearing the child’s views as a ‘fundamental principle of procedure’; but how does that principle operate in practice? In Re D [2006] (above) Lady Hale said:

 

[59] … Children should be heard far more frequently [in Re D it was in Hague proceedings]. The only question is how this should be done. It is plainly not good enough to say that the abducting parent, with whom the child is living, can present the child’s views to the court. If those views coincide with the views of the abducting parent, the court will either assume that they are not authentically the child’s own or give them very little independent weight….

 

Lady Hale considered the ‘three possible ways’ (at [60]) of hearing a child’s views:

 

  • An interview with a CAFCASS officer, who is not only skilled and experienced in talking with children
  • The judge seeing the child
  • Solicitor representation.

 

Of the last Lady Hale said (at [60]):

 

… Only in a few cases will full scale legal representation be necessary. But whenever it seems likely that the child’s views and interests may not be properly presented to the court, and in particular where there are legal arguments which the adult parties are not putting forward, then the child should be separately represented.

 

So, imagine a child aged twelve: Clara. She does not agree in different ways with each of her parents. She does not want to live with her father as is being proposed by him to the court. A court welfare officer is ambivalent as to whether she should stay with her mother or her father. Clara says she wants to live, and spend more time, with her mother. She is content to see her father. On the basis of what Lady Hale says she should be separately represented.

 

Part 2 will consider the child who knows of his or her rights, and what she – Clara – does about claiming them. Part 3 will look at what practical arrangements are made for children and how these fit with the Convention and Charter expression of the rights.

A Burgundy diary – 14 April 2021

To Épinac: market and a jab

That was the wind that was. Through a biting north wind – yet in mid-April – I have had two cycle trips to my local village today.

It was a bright clear morning; but my trip from here starts off down-hill and north. I rode into that biting wind and profited almost nothing from the down-ward slope (or so it felt). When I turned along the voie verte (former railway line) with trees still bare of leaves either side, and therefore no wind-break, it was much the same. When I got to the market and despite my gloves my hands were frozen. The baker in the market kindly insisted on lending me some skiing gloves which were in his van and which, he says, I can take back when he’s there again on Sunday.

I went to Épinac again this afternoon, this time to get my corvid jab; and that, I am pleased to report, is done. My age is with me there. The return date is towards the end of June. By this time, if anything, the wind was colder. The clear morning had clouded over, so there was little warmth from any sun-light. The trees were still in their strange interim phase. A few were in tentative leaf. Blossom still to come on some trees. On others – such as sloe and wild cherry – I fear the blossom is frost damaged beyond recall.

Lucie’s bees are still working. In the cold this morning they were profiting from the sun-light. Dandelions, cow-slip and red deadnettle – and other wild flowers – are in flower for them. And, despite all the strange behaviour of the weather, the blossom on our doughty pear-trees – just above the hive – looks to be in confident bloom.

A Burgundy diary – 13 April 2021

A Burgundy diary – 13 April 2021

Milk from the cows

I’ve just been to collect my milk from local Sully cows. True, there are intermediaries in this process; but I get the milk at milking time with the farmer’s machinery (see photo: that’s our bottles being filled) milking the cows and passing on very fresh still warm full milk to those who turn up to buy it – as I did this evening. The cows are milked in the small modern dairy shed. (The other photo is of the neighbouring farm and its ford.)

By bicycle it’s a couple of miles (4 kms), for me to get there there – all down-hill. This evening I took an extended  round trip along the voie verte (the one time railway track) and then back along lanes and up the hill through Noiron (around eight kms).

Tastes in milk divide my family. Lucie praises the taste of cappuccino made in England with proper milk; and she will tell you of her full English breakfast in a Derbyshire village which included milk in her tea automatically (French drink tea and coffee, almost invariably without milk). My son James likes the taste of French milk because of nostalgia for French holidays.

Whether all that cream is healthy, I don’t know – but it is lovely to taste real fresh milk with breakfast and coffee.

A Burgundy diary – 12 April 2021

Swallows and Épinac geraniums

What can the swallows be thinking of all this? Here we are in mid-April with a biting north wind, and sub-zero temperatures expected again tonight. I wore gloves to cycle to Épinac. Swallows were dipping here and there over the cycle track.

My Dutch doctor (who speaks excellent English: which is handy) had heard that the English lock-down has been eased today; and for pubs and restaurants. Yes, I said, but it is for out-door drinking and eating only; and many parts of England had snow today, I am told. That’s no a problem, said Dr van H. So long as an English-man has his pint, he is not troubled by having to drink out in the snow. I made no comment…

Épinac at this time of year has a delicate small pink geranium (or cranes bill). I remember it last year. I can’t find it in my flower book. It carpets spaces by some of the urban roads. Any offering of a name (the one in the blurred photo is barely couple of cms across), please?

The swallows are here. The colours are as rich as any summer day as the day fades. The trees are draped fitfully with the colours of their leaves. I can’t believe Lucie’s bees are very impressed.

A Burgundy diary – 11 April 2021

The foal and Gadant wine

We went to buy wine last week-end (Easter Saturday) from M Gadant – now in the name of his daughter, Marie Christine – of the Cote Couchois; and as an unexpected bonus we were introduced to their one-day old foal (poulain).

In a sense I owe where I now live to M Gadant. I tasted his wine in 1992 (the only Burgundy wine I found in a booklet that I thought I could afford to buy) in Saint Maurice-les-Couches. I returned later. When I had a little money to buy a property in France I decided to centre my search on Couches: not the obvious place for a Bristol person to look, but there it is; and here I now am….

Couches is not part of the one of the famous Burgundy Cotes; but it is just off the Cote de Beaune (M Gadant has wine also from Santenay and Marenges in the Cote de Beaune). Couches is in its own valley, and with a small medieval castel. A number of wine producers and villages cluster there, such as St Gervais- sur-Couches and Dracy-les-Couches, below 500M+ hills.The Couchois red is now appellation controlée. The Gadant version of that and their generic Burgundy chardonnay – and crémant (a dry fizzy white, unique to Burgundy) – are all, in my opinion, excellent.

And the poulain: she (or he) can answer for her own beauty below the blossom tree. A funny thing about ‘poulain’ is that when I met Lucie I kept mentioning a French film, Amélie, which I really liked. No, she didn’t know it. That was because in France the film is entitled ‘Amélie Poulain’. Why the English left out the Poulain, I don’t know.

Amazing to think that that small, but chunky, foal was only a day old; and her mother and she were walking together around the field they were in.

A Burgundy diary – 5 April 2021

Cherry trees and frost

Has cherries become an obsession of mine? This must be my last post here on the subject. I am worried though. I know that frost, once the cherry trees are in blossom, can kill the fruit. Frost is promised over the next few days. The domestic cherry trees – we have a couple – and the blossom of the wild trees will suffer.

The crop was massive last year, on the domestic and the wild trees. It may be nearly wiped out this year which will be very sad.

Other trees are in blossom too. Peach has been ahead for a couple of weeks. Pear is just beginning to flower. Quince and apples are holding back, so far

In my last post I mentioned the problems of frost. It becomes more real now. Then hardly any wild cherries were in blossom. Now you can see through the field and in the forests many more. The tree in the picture is on the old Roman track way from Autun to Besancon, which passes just near the barn. Standing over the old track-ways these trees are so delicate.

For now the temperature is likely to fall every night to below freezing. The wisteria will need protection. But rain which was promised for a couple of hours ago is still holding off….

A Burgundy diary – 2 April 2021

Frost and fruit trees

There have been three hot (for end of March) days this week. We are told freezing nights will follow for four or five days next week.

So what? That is surely normal for Aril? The problem is that increasing numbers of fruit trees are blossoming – great for Lucie’s bees; but not good for the fruit on some trees – I fear. One or two of the wild cherry trees are blossoming. Our cherry tree in the garden is still holding back its blossom. Cherry trees generally (wild and domestic) – and ours was no exception – were so fruitful las year. I so hope the blossom holds back and is not nipped by any frost.

Blackthorn is everywhere in the hedges and by the paths. It scuds – like a white cloud in the otherwise dark woods and undergrowth – through the mostly unleaved countryside. In the photo, a cloud of blackthorn can be seen in the distance. That was the bush from which I took sloes (prunelles) to make sloe gin. (Most of it is still there now. It has a strong flavour of sloes and is a rich red-indigo in the glass.)

Let us hope the blossom can hold back for any frost next week; and that the fruit trees hold out for a fruitful autumn…

A Burgundy diary – 29 March 2021

Of couvres feus and countryside

Woufff – we arrived back chez nous at the barn late for the couvre feu (curfew French style) at 7.20 pm (1920). We should have been back here at seven (1900).

It has been another day of clear sky: blue high over us. The colours of the greens and winter greys so rich about the day. This evening greens of the fields was intense. The complementary colours of the red tiles matches the verdant fields. And as the sun went down the colours became more vibrant and rich.

A robin seemed to follow us at each stage of the track as we walked. The stream by the path – a former Roman route – was surprisingly full. The first to flower in the woods and the hedges is black-thorn (not the blossom shown in the photo above); and it is coming out now and peppering the hedges. As ever with Burgundy the wild flowers are rich. The sides of the path this evening were carpeted with different colours: yellow celandine; the blues and violet of violets and perry-winkle; cow slips standing delicately by the hedges.

A Burgundy diary – 26 March 2021

Bees in Creusefond…

We have – Lucie has – a beehive. And thanks to a keen bee-keeping neighbour of ours the hive now has a developing colony of bees. Lucie visited her bees a couple of days ago (they’d been in their new home since Saturday) and could see that they were active – but where? There are very few trees yet in bud, blossom or other flower at present. She saw nearby a flowering quince (japonica) – about the only shrub or tree in flower near the garden; and it was susurrating with her bees buzzing in the rich red flowers. (The photo is Lucie’s.).

Suddenly the garden is seen as varieties of melliferous flowers. We have blossom – ours and neighbours (bees I am told are happy to travel up to two miles) – everywhere. This will flower before too long (but after any late frosts I hope) and at various times as spring develops. The wall-nut tree along the path by the garden will soon be rich with its heavy catkins; black-thorn and flowering cherry will succeed one another; sweet chest nut (chataignes) and horse chest nut (marrons) will be in flower in a couple of months. And alongside that are the wild flowers in the fields and meadows.

Even from one hive, Lucie hopes to get – sometime in July – between ten and twenty kilos of Creusefond honey; and that is this year. Next year and onwards there will be more hives and more honey…

A Burgundy diary – 21 March 2021

Stirrings of spring

And so to Burgundy. On a cold sunny early spring day we travelled down from Paris. Today is the equinox (and a near a palindromic date). Through the slight haze of the sunshine yesterday and the grey today, a cold north wind is blowing.

The green of the fields below the barn alternate with the still dark of the trees as they step away into the distance from where I sit.

We went out this afternoon to pick wild garlic (ailes des ours) in the forest for omelettes later. It’s been a grey day; but the banks of the track through the forest and on the way home is picked out with cow slips, violet and periwinkle, wood anemone and celandine. The leaf buds are stirring in many of the trees. Yes spring is coming…

A Burgundy diary – 19 March 2021

George Orwell, toads and signs of spring

In the last couple of days I have read a 1946 essay by George Orwell entitled ‘Some thoughts on the common toad’ (in a Penguin book of his essays entitled Shooting an Elephant (1970)). In reality the essay was speaking of spring – or evidence of spring – in a recently heavily bombed London N1.

Orwell starts by looking in some detail at the hibernation and mating arrangements of toads; and then reflects that the toad, ‘unlike the skylark and the primrose, has never had much of a boost from poets’. You may not like toads (Orwell does: they are one of the phenomena of spring which most deeply appeal to him). Even so, ‘the pleasures of spring are available to everyone’ says Orwell.

He concludes his essay with the thought: that if you are not ‘actually ill, hungry or immured in a prison or holiday (sic) camp, spring is still spring’. Some things don’t change much between 1946 and 2021. Orwell goes on: ‘the police are prowling through the cities, the lies are streaming from the loudspeaker, but the earth is still going round the sun, and neither the dictators nor the bureaucrats, deeply as they disapprove of the process, are able to prevent spring.’

Here in Ivry-sur-Seine, Seine-et-Marne (94) on the edge of Paris in 2021 the earth is still going round the sun. So how is spring coming on? The French are quite stern about their shrubs and flowers and what you see in their urban gardens. Hedges often disappear behind green plastic netting and are not allowed to grow to small trees. That said there are – in mid-March – occasional forsythia, prunus and mahonia japonica; and a local park – one of only very few which is not locked up as light fades – has isolated patches of grape hyacinth and cat mint. Leaves are emerging, tentatively.

Spring is in the air here in Ivry; but on the ground evidence for it is hesitant….