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.

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A Burgundy diary – 4 December 2022

Autumn and a little rain

Winter has eased into autumn. Most of the leaves on fruit trees and around the farmland below us have fallen. In the forest above the barn leaves on some deciduous trees – mostly beach – still wait. They give colours which reflect the sky: a dusty brown and fading greens on grey days, a glow – yellows, a few greens and vibrant browns – when the sun shines (as here). And through the leaves the stones of the medieval Tour de Grosme can just be seen.

Autumn stayed on very late this year. Now we’ve had rain. At last there is some much-needed water for the land and to fill enfeebled streams. Whether it will be enough to make up for the long dry summer remains to be seen. I fear not. I hope I’m wrong.

A Burgundy diary – 21 August 2022

August: early autumn mornings

Suddenly, two months from the summer solstice, an August early autumn hangs chilly in the Burgundy air. At 7 am (0700, French time) the temperature is 10 degrees C outside; and has slipped to 20 degrees inside. It is a clear chilly morning. The day-time weather – after two or three days of quite heavy rain (much more is needed, I am sure) – is warn. Yes it is pleasant late summer warm. On a return from an afternoon walk I lay comfortably, contentedly, in the small pool we’d had set up for our grand-children.

On the walk we picked blackberries which I had thought – after such a dry summer – would be wizened and dried. But no. Durable and deep-rooted – doesn’t anyone who has tried to weed out ronces know? – the blackberries, if smaller than some summers, have produced fully flavoursome fruit. We’ve already had ten or so pots of jam; and last evening we had blackberry and apple crumble: blackberries from the local hedges and apple from a still young, but cherished by Lucie, apple-tree.

For lunch, with an elderly baguette, I cooked a sort of baked bruschetta: baguette laid in a baking dish, a little butter, well-layered with tomatoes*, ground coriander seeds*, diced ginger and thyme* (*=from the garden), to season – generously; Cretan olive oil over that; then in the oven for half-an-hour at 180 degrees and a bit of grill at the end. Pas mal….

Oh yes, and the tomatoes: lucky we both/all like tomatoes, or we’d soon be overrun. There is no question but that tomatoes like Morvan-Burgundy soil. And the varieties Lucie has planted, in a modest (1 by 2 metre?) patch, are a delightful variety: fat pendulous – some almost obscenely large – characters, little red roly-poly ones, green, orange, yellow-striped, and almost mauve ones. Few are anything to look at like what you find in a green-grocer; but all taste as if a quite different vegetable. I’ll probably be eating tomato salad, or tomato crumble or tomato-and-something stew, most of the way till Christmas – but for me, bring it on…  

A Burgundy diary – 24 July 2022

Mies van der Rohe and Burgundy tomatoes

There are few things more foolish than assumptions based on inadequate knowledge. I may be about to prove this, in terms of my limited knowledge of 20th century architecture. And all in praise of three – our first three for 2022 – tomatoes.

I was lucky enough – and I mean that – to do a history of art A level at school when I was sixteen/seventeen. The influential 1920/1930s German Bauhaus School, which we studies a little, included a variety of contemporary arts names including architects Ludwig Mies van der Rohe and Walter Gropius.

My memory is that one of the significant products of van der Rohe and Gropius was that they conceived of modern flats as like chests of drawers. You could build upwards – thirteen, fourteen storeys and much more. People could live in flats piled high like drawers. Land around would be released. People would have communal areas to walk, sunbathe, push their prams etc. And that is where my – or more correctly Lucie’s – tomatoes come in.

I have heard it said that many people don’t want their life to be too communal. They want a private out-door space. They want their pwn back garden, or patch – or yard (US). Maybe soon they will actually need it. As the cost of travel to the shops grows and the quality and costs of much of the food declines maybe more people will want to grow their own. Our small vegetable patch (potager) is about half the size of the average terraced house garden. With imagination and a little effort – and, for this year, more rain-water, please – our potager (kitchen garden) can produce plenty of veg (and some strawberries) for June to October. More can be bottled for the winter. Everywhere in cities and smaller communities there are areas which could be given over to allotments.

Tell me: I may have misunderstood Bauhaus; and I may be wrong about the urge for modern urban potagers?

A Burgundy diary – 15 July 2022

St Swithin’s Day

It is said that if it rains on St Swithin’s Day it will rain for forty days; or is it for a month? Whichever it may be, rain today seems highly unlikely today.

This view from my bedroom window at around 6.30 am – I could not get the definition any better makes me think (sententiously perhaps) of Shakespeare’s Sonnet 33:

Full many a glorious morning have I seen

Flatter the mountain-tops with sovereign eye,

Kissing with golden face the meadows green,

Gilding pale streams with heavenly alchemy;…

The Crete de Curgy opposite is no ‘mountain’; but then I doubt Shakespeare would ever have seen what we would call a ‘mountain’. Hills here in Burgundy, even, are higher than he would ever have seen in southern England where he spent his life (we think). But to start a day with a Shakespeare sonnet and sight of a ‘glorious morning’ on Burgundy countryside is a good start, I think.

A Burgundy diary –   2022

Bastille Day

It is Bastille Day in France: a national holiday. I am pleased that as English, or even as British, people we do not have a national holiday. Each part of the United Kingdom has its saint’s day: St Patrick for all Ireland; St Andrew for Scotland; St David for Wales and St George for England. I’ve seen St George’s flags flying on churches; and the Irish get quite excited on 17 March. But no fly past or military parades in the British Isles – yet (but just imagine what Johnson’s Tory successor might get up to); and no jingoistic fireworks or nationalist’s displays.

I understand why Bastille Day is so important. I understand why the tricolour flag has a particular resonance. I only ask why a country so old and grown up as France still has to have such nationalistic expressions. With so much populism around – ie right wing tub-thumpers, like Erdogan and Trump – we need no more bellicosity, if it can be helped.

The picture above is looking away from ‘the barn’, where I sit now. As of (depuis) a couple of days, the hay has been cut. Below is the Marie in Molinot, near here, but just into the department of Cote d’Or.

A Burgundy diary –  2 July 2022

Of marjoram, bees and butterflies

Outside our kitchen back door is a patch reserved for mint, thyme and one or two other herbs. Next summer I plan the white flowers of coriander, and perhaps some chives. The reason for mentioning it now is the marjoram. It is in flower at present. And the reason for mentioning the marjoram in flower is that it gloriously attracts a variety of bees, and butterflies and moth. Even a humming-bird hawkmoth (https://www.google.com/search) visits. All buzz and flutter – or, in the case of the humming-bird, hovers and darts – around the marjoram. [The bee I caught on camera is too fuzzy; but with my phone I could do no better.)

It’s not only in our herb garden. Butterflies fill the garden fluttering above the grass and beside the grass awaiting being cut for hay. Sadly I only know the names of a few butterflies, such as a peacock, a painted lady, fritillary and cabbage white. They dance about the not too kempt garden grass, which – just at present – we are leaving a bit. There is a spindly mini-dandelion flower which the bees plainly like – Lucie’s bees among them. Next year we may stop mowing altogether save for a few paths. Let’s see.

A Burgundy diary –  21 May 2022

Teeming early summer

Season of scabious and of vetch; or buttercups and daisies; of pink and white campion; of thyme in flower, or thrift and clover; of marguerite and lush long grass in the field below me. I swear it doubled its height and more in the ten days we were away. The road verges – still not attached by the roadside mowers – teem. The woods are in full summer green.

It would be churlish to lament the lack of rain; the fact that rain only falls when there is a storm; so for now I’ll look out on the abundant summer still green, and quietly pray for generous rain.

Cretan diary, 10 May 2022

Avdou to Mohos through the olive groves

We walked today about 5 kms (3 miles) through the olive groves for lunch in Mohos, and back by the same tracks. Wild flowers were everywhere along the way. Perhaps the most striking was the broom, which you can see spread up all the side of the hills (and mountainsides, further into Crete. The one I like most, which was perhaps the most frequent, was rose-pink cistus. Both attracted bees all along the track. They were joined by such a variety of wild-flowers. I’ll mention those I can remember (and name): poppies, a kind of local fennel, vetch, blue-eyed grass (which I’ve not seen since in the Tarn valley, many years ago), daises and two or three dandelion type flowers; and a type of orchid grew as we arrived at Mohos.

What is remarkable, though, is that we saw no aromatic herbs on the Mohos side. Even the fennel had almost no scent. Whereas south of Avdou there were oregano, mint, a variety of sage – but no thyme, we saw – up the sides of the gorge we walked a couple of days ago.

Olive trees grew all over the hill-side as we climbed. As we descended the short track to Mohos fig-trees – but with no fruit at all, that we could see – were more frequent. A few almond trees grew with fruit just appearing.

Walking through olive-groves is like walking through vine-yards, in this sense: there are no walls or fences to climb, just tracks which pass through the olive-groves. Today it is no longer cart or pack-horse tracks, but well-used access-ways mostly of concrete or still, occasionally, of rock or stone. These must have been developed when the olive-trees were first planted as today’s olive groves, some centuries ago, I suspect.

A thing I find strange about Crete – and intensely frustrating – is that there seem to be no maps (other than basic tourist road maps). Given that the British and the Germans fought over it in the Second World War and the Germans stayed on, I am sure they must have mapped it. That is my test for my return home: to find a few reasonable maps for here. I would love to come here again, but I would like to walk routes I had worked out from maps, not those recommended by Google.

Cretan diary, 9 May 2022

Avdou, Crete

Avdou: the village is small uneven streets, winding between low houses. The centre where we are must be old. The small stone-built houses are built to no obvious plan, fronting straight onto the uneven concrete laid track-ways. Concrete now: originally I image they were stone and hard-trodden earth, muddy in winter. The small space we are in is stone-built: a kitchen and sitting area, three meters by five at its widest and longest; high ceilinged to open beams. A bedroom above is approached by a spiral stair-case. I think it is all quite new, but – thank goodness – it is all of stone, (not eg plaster washed breeze-blocks).

Cats of all colours and sizes – mostly not domesticated, I suspect – patrol the streets. We ate our first lunch here at a small dark tavern run by an old Greek lady, and – I think – her husband (though he seemed to leave her to most of the work). We ate Greek salad with white wine and water, bread and chicken brochette. She gave us chips, perhaps that is what western Europeans are expected to eat. When he found out I was English he mention Carlos Chaplin.

If they are both native Cretan, I reckon they would be old enough to have been here in the Second World War, as small children. Perhaps they remembered the short disastrous (for the English) battle for Crete. Even if I could speak Greek – which I can’t – I would love to have found out what they could remember.

Cats wandered around in the sun in the lanes leading away from the tavern. At one point I reckon I counted ten. Two or three came to see if we’d give them any food. I had a small piece of chicken. One took it away and carefully kept it from his or her fellow cat urchins.

Trees grow in most available spaces in the village: vines, bougainvillea, medlar, fig, wall-nut, jasmine and roses – and geraniums, of course. Most street areas are gently surveyed by carefully pollarded mulberry trees. Their leaves spread and their shade deepens as summer goes on. There are a few orange and olive trees in the village, though these are mostly outside the village and up into the mountains. And the mountains: that is another story of Crete….

To me one of the saddest things about old Avdou is the signs everywhere showing what I take to have been the occupation of the owners each shop over the past hundred years or so. Each sign shows what I assume was a picture of their occupation – food, tailor, carpenter etc – their name or title of the shop and the period when they were there. A lot of buildings by the streets were once shops: you can tell from their windows and doors. Now tourism (I imagine the majority of properties here are let, not owner-occupied) has taken over. Not even a baker survives. There are only tomatoes and apples and onions as fresh fruit and veg: not even oranges. The small supermarket stocks bare survival necessities: little more.

People here – or anywhere else for that matter – no longer take their sewing machine to the mender; or to have clothes repaired or made, or shoes cobbled or a new chair or two made by a carpenter. They drive to IKEA, or to the local super-market and stock up; or in the 21st century – worse still, except for postpersons – they get it all on-line. Local shops and shopkeepers are starved. So what is left? The small ‘Super Market’, a tourist olive oil press (with all tourist treats: nothing of use to any locals); three taverns…

Oh, yes and there are three churches, which grow in size and vulgarity as they move from 14th Century, to 19th to 20th. The first has stunning small faded murals over its low ceilings. I have seen no-one go near the middle one, just our side out from door; still less anyone go inside. Does Avdou’s life now survive with its churches now little more than a relic of a past which fades as we look on; and as all of us fade too?

A Burgundy diary – 27 April 2022

Ups and downs of April

‘April can be the cruellest month’, as TS Elliot nearly said. Blossom on some trees was coming out early in the month; then frost bit, and I suspect any fruit which was to come on those few trees, has gone. We spoke to the trees which were advanced, begged them to hold back; but I fear they didn’t hear us.

And our poor wisteria. It is flowering against the house; but away from the house its buds have met a frost stunned, shrivelled end. We wait to see if leaves will grow around the frost deleted buds.

Sun followed the frost. Day after day of sun. Then finally on Monday we had rain; and I reckon all the grass and wild-flowers grew their height again in 24 hours. Blossom has blown off many of the fruit trees; and you can see the fruit beginning to form. Now we await the possibility of more frost as May goes on; and we hope it won’t come.

Whilst all this waiting works over us, the orchids in the meadow below the house and the buttercups and cowslips spread though the green, and away to the hedge. By the hedge is a trodden path through the grass; and thanks to an infra red camera we know it is a badger’s path. But we only saw the badger once for a few seconds, lolloping across the field. The night camera didn’t pick the badger up again; but you can see where he nestled in under the hedge at the end of his track.