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 – 27 May 2020

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Picking cherries; and fading evening light

 

This evening it’s been time to pick cherries; and still we’re in May, which worries me a little. A wild cherry tree grows by the path alongside our back field. At least I think it’s wild: certainly it belongs to no-one standing as t does on the bank to the track. And now its branches are rich with bright red cherries. Just one branch yields a comfortable crop for two or more (those that aren’t eaten as they’re picked). I’ve not ever picked cherries like that as they hang ripe from the branches

 

Our own tree in the garden – planted fifteen years ago – is full of fruit. I am sure there is a branch which overhangs a little. Now brushes my head as I pass. Can cherries, as they ripen, weigh down enough a branch for it to droop? Or am I imaging it? Can that only happen with heavier fruit such as apples and pears and quinces?

 

Now – later – as the light dies and a near half-moon hangs in the sky, I can see the remains of the day burning across the valley from the barn. Oranges and reds smoulder in the late evening sky. The nearby hills are black, in contrast to the remains of colour in the night sky. Further away that black fades into a soft, almost sultry, dark, dark grey in the Morvan distance. The fresh wind of the day has dropped, so that now the night is still; the dark and glow of the evening are still; and only crickets disturb the deep dusk night. The orange fades. The light softens to a soft ochre glow. The light will stay in the sky for sometime yet as mid-summer waits not long away.

 

David Burrows

27 May 2020

A Burgundy diary – 21 May 2020

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A vapour trail again…

 

This must be the finest time of year to see nature. An open blue sky, trees a deepening green, the fields a rich verdant beneath the clear wind-brushed skies. Wild flowers are everywhere. Today elder flower (sureau) can be added to the list of trees in bloom which are emerging towards summer.

 

There are more cars on the road again as the lockdown lifts; and this evening I saw what may be my first sight of a vapour trail for a long time, like a rent in the evening sky. It will be sad if we go immediately back to the rich person’s access to easy air travel. Yet after covid19 it may never be quite the same again. Flygskam – ‘shame of flying’ in Swedish – may yet take a greater hold, as it was beginning to do last year. Perhaps only the most essential flights will be taken in the future. Our lives need not be poorer for much less air travel. Plenty of journeys – most distant holidays and other inessential luxuries – need not be taken at all. Many quite distant journeys can be taken by train. The train journey can be part of a holiday and much more relaxing than interminable air terminals and cramped flight conditions….

 

Covid19 may yet change work travel – with a little imagination – for many of us. It may encourage more people to find they can live outside cities and communicate from their homes. And finally, could it yet encourage us that distant travel can be more modest?

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And back to local earth: a cycle ride, again, along the local one-time railway line from here to Épinac market. Here – taking vestiges of transport back over 180 years – is a modest snap (fuzzy quality) of a level-crossing keeper’s house. It only occurred to me then that the order of transport development would have been, first, a modest local track (not much more than a farm track, probably from medieval times and before), crossed then by the steam railway (around 1840). Most of another 70 to 80 years would have elapsed before there would have been any need for tarmacadam and a level-crossing, and therefore for a crossing keeper. Who can remember the level-crossings with a keeper who emerged periodically – half-hourly, more or less – to open and close the gates to stop cars getting in the way of the trains?

 

David Burrows

21 May 2020

Ascension Day

Publishing of information about police inquiries

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Confidentiality: investigation, but no charge…

 

One of the more uncertain areas of the law must be for those who are investigated by police or other agencies (see eg ZXC below) but not – yet, perhaps – charged with any offence. It is uncertain for the individuals concerned, for the journalist and other publisher (eg on social media) who may find out about it, and for any lawyer asked to advise. Can the fact of enquiries be reported by the media?

 

Broadly – and ‘broadly’ is the best that can be said – if a person is not charged, publicity will be banned. Once a charge is made open justice principles apply. If it is child care proceedings which are in issue, privacy continues once proceedings start; but if, on the same facts, a parent is prosecuted probably their name (but not that of the child) will be in the open.

 

Two very different aspects of confidentiality have been in the reports in the past three months: one (ZXC v Bloomberg LP [2020] EWCA Civ 611 (15 May 2020)) was an unsuccessful appeal from Nicklin J and the other and earlier a decision by Nicol J in Pharmagona Ltd v Taheri anor [2020] EWHC 312 (QB), [2020] WLR(D) 129 (17 February 2020). In Pharmagona a husband and wife were made subject to injunction not to publish or otherwise pass on information from their former employers to others, save if they were asked by enforcement agencies. It is the second – ZXC – with which this post is concerned.

 

‘Confidentiality’: towards a definition

 

But first, what is ‘confidentiality’ as a legal principle? In the 1980’s ‘Spycatcher’ case (Att Gen v Guardian Newspapers Ltd (No 2) [1988] UKHL 6, [1990] 1 AC 109 at 280 concerning release of government information received in the course of employment) Lord Goff said of confidentiality:

 

‘I start with the broad general principle (which I do not intend in any way to be definitive) that a duty of confidence arises when confidential information comes to the knowledge of a person (the confidant) in circumstances where he has notice, or is held to have agreed, that the information is confidential, with the effect that it would be just in all the circumstances that he should be precluded from disclosing the information to others…. The existence of this broad general principle reflects the fact that there is such a public interest in the maintenance of confidences, that the law will provide remedies for their protection.’

 

The definition which – despite Lord Goff’s modesty, has been accepted as authoritative by text-book writers since – captures the three main components of ‘confidentiality’:

 

  • That information comes to the knowledge of the confidant, who knows it is confidential (or should know it is confidential – as in ZXC);
  • The situation is such that, where necessary, the confidant can be prevented from passing on confidences;
  • There is a public interest in confidences being protected (if need be).

 

Expectation of privacy during a criminal investigation

 

In ZXC the question was: ‘[2] to what extent, a person can have a reasonable expectation of privacy in relation to information that relates to a criminal investigation into his activities.’ The parties to the appeal agreed that if someone is charged with an offence, there can be no expectation of privacy.

 

JXC was a senior employee of X Ltd a company which was the subject of a request for information from a UK ‘Legal Enforcement Body’ (UKLEB) in relation to X Ltd’s dealing with ‘a foreign state’. No one had been charged. UKLEB sent a long letter of request to the appropriate authority in the foreign state. The ‘confidential nature could not have been made clearer’ said Simon LJ (at [17]). The letter came into possession of a journalist for the defendant, who published it and the name of JXC. Nicol J said he had found it a ‘striking feature’ of the case that there seems to have been no appreciation in Bloomberg of the ‘highly confidential nature of the’ letter of request (at [24]).

 

Resolution of this case depends on the court assessing the facts in two stages:

 

‘[42] … Stage one of the enquiry is whether a claimant has a reasonable expectation of privacy in the relevant information? If the answer is yes, stage two involves an enquiry and evaluation as to whether that expectation is outweighed by a countervailing interest, in the present case Bloomberg’s right to freedom of expression under article 10.’

 

Thus – based on the House of Lords decision in Campbell v MGN Ltd [2004] UKHL 22, [2004] 2 AC 457 – does the applicant start with a ‘reasonable expectation of privacy’ (eg balanced against the applicant’s own courting of publicity or the applicant’s own behaviour. If they do, the court must balance privacy against freedom of expression. Is the public interest in confidentiality outweighed by the public interest in freedom of expression?

 

The court held, as did Nicol J, that JXC had a reasonable expectation of privacy; but did that survive where he was under investigation by the police or otherwise. What JXC shows is that the law prefers that confidentiality be retained, but that there are no hard lines where an adviser or the court can be categoric. There are two important decisions in recent years, which – superficially at least – conflict: Khuja v Times Newspapers Ltd [2017] UKSC 49 (19 July 2017), [2017] 3 WLR 351 and Richard v The British Broadcasting Corporation (BBC) & South Yorks Police [2018] EWHC 1837 (Ch) (18 July 2018), Mann J. Both are considered by Simon LJ.

 

In Khuja Mr Khuja was indicated by one witness as involved in a sex abuse inquiry; but he was not charged in the subsequent criminal proceedings. A seven justice Supreme Court (with Lords Wilson and Kerr in the minority) held that his name was correctly publicised. In Richard the BBC publicised the fact of a sex abuse inquiry concerning Cliff Richard, which resulted in no charges. Sir Cliff recovered damages against the BBC. Both cases are cited in JXC; but the minority’s judgment in Khuja is what the Simon LJ centres his definition of the modern law upon.

 

Confidentiality: public interests balanced between privacy and freedom of expression

 

Thus, for Simon LJ his resolution of this case can be found in summary, that if a person has not been charged (JXC had not even been arrested), publicity will generally be forbidden:

 

‘[82] … I would take the opportunity to make clear that those who have simply come under suspicion by an organ of the state have, in general, a reasonable and objectively founded expectation of privacy in relation to that fact and an expressed basis for that suspicion. The suspicion may ultimately be shown to be well-founded or ill-founded, but until that point the law should recognise the human characteristic to assume the worst (that there is no smoke without fire); and to overlook the fundamental legal principle that those who are accused of an offence are deemed to be innocent until they are proven guilty.’

 

In a short judgment Underhill LJ stressed that the confidentiality of the letter of request as between UKLEB and the foreign state may be one thing. JXC’s privacy may be a separate matter. He was a little more luke-warm than Simon LJ. He could see no basis for differing from Nicol J’s decision.

 

Confidentiality is critical to many aspects of privacy and in particular to many professional relationships. Privacy is not absolute (save in the case of the confidentiality in legal professional privilege); but it provides an important protection in many cases where it is to be balanced against the important public interest in freedom of expression.

 

David Burrows

19 May 2020

 

A Burgundy diary – 19 May 2020

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Of rose hips and lane verges

 

Verges of the lanes are rich with wild flowers and vigorous green grass in the glowing evening sun: forget-me-not, corn-flower, red campion and scabious and many more. Horses in the fields stand in an undulation of rich green and sun-drenched buttercups.  Ox-eye daisies wash and sway in the grass. Hedges are dotted with honey suckle and dog rose: in French, chevre fieulle and eglantine (a word which is also eglantine in English, and rosiers des chiens in French, I think). I’ve tended to prefer the expression chevre fieulle to honey suckle (though it’s a close thing); and eglantine has a touch of gentleness over dog rose. (On a quite separate point, I definitely think the English mistletoe scores over the French gui – which is everywhere here, clinging insidiously to trees.)

 

I used to go to a ferme auberge near here. It was on the limestone cliffs which circle above Nolay (on the edge of the Cote d’Or). They had a kir with a licquer of grate-cul (as of crème de cassis for a genuine kir). I had no idea what gratte-cul was at the time, but I used to drink the kir. It was a pale orange pink colour, with a taste which told me nothing. It was only some years later that I found out that what I was drinking came from rose hip (the fruit of a rose). Mostly it applies to the fruit of the wild rose (eglantine or dog rose). I shall try to buy some of the liqueur, and of the other things made from rose hips; and collect the hips from the hedges as they ripen and find out what I can make for myself…

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David Burrows

19 May 2020

 

 

A Burgundy diary – 18 May 2020

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Sun rise, sun set at the barn

 

The sun rises behind trees opposite the front of the house, and sets on the horizon provided by the hills above Vergoncey at the back. When the moon is full it rises as the sun sets and follows the same trajectory over the house.

 

When you can see the sun set – as is mostly the case now – it moves slowly along the sky-line each day. It will slow now and stop on 21 June, before moving slowly back to the south. My question to myself is where will be its summer solstice point on the hills to the west of us?

 

What I also realise now is how the light of the sun continues to move, as it glows and its red deepens and darkens. It continues to move north along the sky-line in the hour or two after it sets. If I think about it, it is obvious that it would move like that. It dips deeper below the horizon and then rises towards tomorrow; but it’s only been as I’ve watched that light move toward the Morvan hills in the view beyond us that I’ve fully appreciated the fact.

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David Burrows

18 May 2020

A Burgundy diary – 17 May 2020

 

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A time of marguerites and scabious

 

Looking from the barn the field below us is a sea of deepening meadow grass, ready for cutting in a month or so. Go down the field and look back and the field is rich with ox-eye daisies, marguerites. It is like one of those Turkish rugs whose colour changes according to the direction from which you look at them.  Here and everywhere fields are studded by these elegant, gentle flowers, a statement of summer to come.

 

Hawthorne has shed its blossom, but now – higher in the trees – acacias are shrouded in flowers. Each have the faint sound of bees in them collecting for the hives which dot the area. Up the road, tucked away against a low wall by the small chateau, there is a line of fifteen hives or more.

 

And, as ever, the road sides are rich with wild flowers: all colours and types of flower, changing slowly as the season changes. My favourite for this time of year remains scabious. We have a few in the roadside outside.

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David Burrows

17 May 2020

A Burgundy diary – 16 May 2020

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Tour de Grosme

 

Across the road in front of the barn here is a lane that runs to the main road (Autun-Beaune), and across that to a small forest road. The road – not much more than a track, and only rarely used by cars – climbs and winds up through the woods. Eventually – three or four miles (6 kms) later – it comes out again on the main road (having passed a mysterious small Carthusian nunnery – le Prieuré du Val Saint-Benoît – tucked away in the woods).

 

On top of the first climb of the forest road, almost hidden in the trees, is a substantial medieval stone tower. One wall, perhaps a little more, is all that is evident at first. It is easy to miss it. It is hidden by trees. On the map it is described coyly as Tour de Grosme. My local historian source M Roland Niaux describes it being the share of Sully lands (where a substantial chateau still stands) which in the late thirteenth century came to Girard de Chatillon.

 

As a castle Grosme must always have been modest; but there is much more there in the undergrowth, I suspect, than the tower. When I last explored the site the ground was shrouded with periwinkle (pervenche), which cloaked mounds and old workings and the evidence of a short outer wall. A smaller tower and outbuildings are there. You could see then, before the trees were in leaf, why the position for the castle had been chosen. It looks across the opening valley of the Drée river towards the castles at Sully and Épinac, though with a deeply forested – perhaps impenetrable – hillside behind. No one now seems to care much for it – poor sad secret place as it slowly crumbles back into its periwinkle carpet.

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David Burrows

16 May 2020