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 – 4 June 2021

Burgeoning grass and flowers; and a hoopoe

Back to rain and grey skies again; though we need the rain…

A fortnight ago I was standing on Etang-sur-Arroux station in the pouring rain, waiting for my TER-Bourgogne-Franch-Compté train for Nevers and Vierzon in mid-France. It was cold. The trees waited to come fully into leaf. A week later the weather was hot, dry; and when I came down here last Monday I arrived with the temperature at 21ᵒ. And it has risen two or three degrees since then.

What all that means is that with plenty of moisture in the ground, followed by unrelenting sun, the wild flowers and grass have burgeoned. I feel there are more wild flowers than last year; and I am certain that in the ten days that I was away the grass grew three times, or more, of its mid-May height.

Meanwhile, my hoopoe is back for his or her June run. He’s been outside three or four times every day this week pecking up what he can from the grass and stones in front of my window. I am just sorry that the quality of the picture is so bad.

A Burgundy diary – 30 May 2021

Signs of life again…

Paris is opening up again. This will probably not happen in the same way England with the pusillanimous Johnson and his inefficient dealing with the coronavirus version from India; and despite the high vaccine rate in England. I fear it will be sometime before we can go to England without quarantining there and on our return to France.

From a couple of weeks ago, bars and restaurants were open outside here. From next week they will be open for inside service as well. Suddenly life in France scrambles back to forms of normality. Masks are worn everywhere – or are supposed to be. Distancing is expected in bars and restaurants. The special French feature of the curfew (couvre feu) from 9 pm is still on (limit drinking time the faster people get drunk: a slightly different point, and maybe mostly only applicable in Britain and Australia); though the reasons for it are as opaque as ever.

To my taste Ivry has not got too many congenial bars and only a couple of restaurants. My favourite bar/bistro is optimistically named Le Village (it’s a long way from any village). It is on the Place de l’Insurrection de Août 1944 (the date when the French in Paris liberated their city from the Germans and installed a French government again). There are three bars there. Each have the feeling – for a foreigner like me – of a Paris bistro. Yesterday we drank a glass of kir, and then had cous cous with house red wine. And it felt so good to be able to eat out in Paris (OK, Ivry) again.

A Burgundy diary – 25 May 2021

Brenne and water

To the Brenne region of Berry in central France, this week-end. It is a rolling wooded and hedge-lined area south of the Loire, cut through by streams and dotted by small lakes and ponds. The streams all find their way north to the Loire.

The rock of the cliff behind our friends’ house by the Anglin is a form of limestone, between vey hard carboniferous rock and much softer chalk. It is quite friable. It was material for a now defunct, once substantial, four berth lime kiln. The machinery which once pulled the lime from the kiln to a higher level and the narrow tracks to it now nestle in the woods above our friend’s house. Jean-Paul has had built a set of steps up the cliff.

I was advised to wear a hat in the woods to avoid ticks; though one got inside my shirt and enjoyed burrowing into my skin for three or four hours. Dotted everywhere in the woods were wild asparagus which we collected and ate for Sunday lunch. (Saturday had provided a more conventional, cultivated asparagus.)

The Anglin is dotted every couple of kilometres with one-time mills. To judge by the photo below milling must have had a prosperous side to it; though – a mystery – this miller’s house (the mill was separate) had been extensively restored and then left. It had surely had little attention for two or three years I would guess: moss had recolonised the roof, and pebbles which had been spread in the garden had become over-grown by various forms of vegetation. The path on the left – including some slippery sloping clay – seemed to be the only access to the house.

Towns and villages were all built in variants of gentle stone – not all, though mostly, of limestone. The delightful, if sombre, romanesque church (below) is at Saint-Benoit-du-Sault and I was able to tell my French wife that Sault is old French for jumping: hence sauté potatoes, somersault and resulting trusts. (Yes, really. If Fred and Mary buy property, each put in money, but the property is conveyed to Fred’s sole name, then a trust jumps – or re-saults – onto the property to ensure that each get back a share equal to what they paid).

The local population has declined over the past seventy years, but some shops remain. Will on-line working begin to reverse that receding countryside tide. It will need more investment into the shops in the middle of small towns and villages if the gargantuan supermarkets are to be kept back.

A Burgundy diary – 21 May 2021

Wild flowers in a grey May

At the road-sides and by the paths forget-me-nots and speedwell mix their blues and delicate blooms. Pink campion and occasional white campion are scattered. Stitchwort nestles beneath the emerging hawthorn buds of May. Marguerite are flowering in this grey, cold May.

For me, still, scabious are my favourite; and at the entrance to the barn we have what seems to me a burgeoning colony. Long may they return each year, and burgeon more and more.

A brief look at posts for May ago, shows how different this year’s miserable later Spring has made wild-flower growth.

A Burgundy diary – 20 May 2021

Buttercups and bees in the countryside

Is it my imagination, or are the wild flowers more prolific than in most years in the midst of this strange Spring. April was dry and clear, with sunny days and very cold – even frosty – nights. We sat and ate outside then, even in evenings, and for a couple of days. I worried as another drought threatened. Then came May: sunny and dry at first, then wetter and colder than the previous four weeks. Heavy cold showers and – here – strong south west winds blowing cold and persistent from the Morvan.

Through all this, wild flowers are everywhere truly abundant. In the fields the buttercups spread a glowing yellow everywhere. They sprinkle – drench, almost – the sides of the Épinac voie verte (cycle track). The fields are a gently billowing, golden yellow. Back towards Paris (on the northern boundary of Burgundy), yellow rapeseed (colza) could be seen everywhere from the motorway. But its yellow is flat, dusty, lifeless. I have seen no rapeseed in the fields around here.

Buttercups, in smiling contrast to the rapeseed, shine through the fields, and the road- and track-sides. They are a bright and warm yellow – boutons d’or in French – and reflect the sun when it shines.

They shine in our meadow (below); and I am sure Lucie’s bees – who till today have had a harsh time in the prevailing harsh south west wind – welcome the buttercups.

A Burgundy diary – 19 May 2021

A beginning to an end to ‘confinement’

As the rain fell, intermittently, on Épinac this afternoon I sat under an awning and drank my first beer at Épinac’s – or any – local bar. It was a strange event. Will it be part of the tentative beginning of the old pre-covid19 life, at least here in Burgundy?

Three or four weeks ago I was in Paris. It was not itself at all in times of ‘confinement’ (lockdown). I had to go to an appointment on the edge of the city. I walked along the Boulevards des Marechaus (Marshals). It was a fine spring day. It was the type of day in which Paris sings. Trees were on the point of coming into full-leaf. Wisteria and clematis were in flower. And every five minutes or so a tram glided past.

And yet almost all the cafés – such an essential part of Paris life – were closed, their seats stacked abjectly inside. Meals to take away (emporter) were on sale in some restaurants and bars; but that was it.

Since then, and back here in Burgundy, we bravely face rain and wind, and look steadfastly to the south-west and the prevailing Morvan wind. And Paris’s abundant wisteria – the example here is from Ivry-sur-Seine (94200) alongside Paris – are almost impossible to imagine here. Last year’s flowers, at the beginning of May, are – this year – still small stunted growths, like tiny pine cones still waiting for a chance to flower against the cold west wizening wind.

A Burgundy diary – 20 April 2021

Survival of a fig tree?…

The tangle of twigs (below) is a young fig plant – and at present the question for me is whether it will survive drought (I have watered it) and a very cold spring. Just visible on my poorly focussed photo is evidence of green; but will this be enough to enable some life to be preserved till the summer.

The cherry blossom provides a contrast. I still hope our cherries will have survived the recent frosts. It looks as though this blossom has set. We wait to see whether fruit will follow if no further frosts bights us.

The fig was layered – a marcotte – from his Brittany tree. It has survived a couple of winters; but this cold dry spring may prove too much for it. We’ll see.

The fig is a fruit which, as a child, I had not heard of. For example, for me, peaches only came in tins as did apricots. Both were in a thick treacly sauce. I didn’t think about what fresh peaches or apricots would look like; or even, when young, of the existence of a fresh fruit.

And figs: as a child I had a bible which had lots of line drawings peppered around the text. To accompany Judges 9, 10 was a picture of a branch of something; and in the text is reference to the fig tree being asked by other trees to reign over them (yes, really). Frankly, knowing what I now know of figs trees – which I did not know aged ten or eleven – I don’t think the drawing of the fig is very realistic. But at least it gave me an idea of what a fig looked like.

Later – in my twenties – I had dried figs. I cannot remember when I first had fresh figs, a fruit I now love. And I do not propose, here, to enter into the DH Laurentian debate – which he puts in the mouth of Rupert Birkin, in Women in Love – as to how a fig should be eaten.

A Burgundy diary – 18 April 2021

Mont Frivaut: an iron age fort in the Drée valley

Mont Frivaut is a local iron age fort, lying quietly beside our nearby village of St Leger du Bois (here shown in wintered greys). At least I am sure it must be. It has the flat top of a fort, and is surrounded by ramparts now wooded. There is no clue to its history on the local IGN map; and Denis Grivot’s Autun – a history of Autun since Gallic times – has no reference to Mont Frivaut in its index.

Lucie and I climbed up onto its small plateau area last summer. There was mining of schist there more than a hundred years ago. Now the tracks passed around the hill, but not onto its flattened summit. To get to the top, you must walk through fields and clamber over fences and up a couple of the modest ramparts. The plateau was an other-worldly spot: rock, small pine trees and – at that time – carpeted with wild thyme and low growing thistle. It was grazed by sheep which rare around here.

The shape of the Mont and its ramparts are the give-away, surely? The Eduens, a Gaulish Celtic tribe, controlled this area. It was rich farming country around the valley of the Drée (as now). Their capital was at Bibracte thirty kilometres (twenty miles) from here. (Bibracte later give way to Augustodunum (now Autun)).

The Eduens fought Julius Caesar in his 50BC Gallic wars, but later allied themselves with the Romans. They were a powerful tribe. They controlled, as against other Gauls, the area between the Soane and Loire, to west and east and the Serien and Allier, to north and south. Frivaut would have been day’s walk from Bibracte, so why not a local stronghold; and close to the local water source of the River Dree, but a kilometre away?

The researches of a Sully friend shows that the small pink geranium mentioned a couple of days ago, is erodium cicutarium (Common Stork’s-bill) (bec de cigogne). And that research has been propped up by her copy of William Keeble Martin, Concise British Flora (1965) which I had completely forgotten as a flower book.

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.