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 – 2 January 2021

A path through the woods

As 2021 begins, I am no nearer to understanding the French system of rights of way. Three things are certain: what appears to be a right of way on the map, or at least a clear means of passing on foot, guarantees no such thing; secondly, the French have a methodical system of ‘grands randonnées’ all marked and numbered on most maps; but, finally and in general (at least around here), many less people than in England walk for pleasure. What is cause and what effect? I don’t know. Modern IGN maps – the equivalent of our Ordnance Survey – do not show familiar walkers’ aids as compared with older French maps (eg field boundaries and lot numbering of parcels of forest land) As far as I know French maps have never indicated their bars and restaurants as the English and Welsh do their pubs (PH, as was, and now the little blue beer mug sign) or post offices (no PTT in France where England/Wales has its POs).

And yet, so much of the French countryside is magnificent. I have written a little before about local foot paths. I am trying to find a way to introduce my local mayor to stiles, not because the English do it better, but because local French communes do not seem to have stiles at all. The path alongside our land (Chemin de Pont Romain) goes into what was a near impenetrable wood, which was clearly once a right of way (see the map here). The photo here shows its clearance by arrangement of the mayor over a couple of hundred yards (200 metres). It does not show that on the dog-leg shown on the map the wood is still barely passable; that there is still a stream down the path way; and that, just out of sight, a scramble of barbed wire makes the path passable only to a person with very long legs and scant regard for their safety and comfort.

A challenge for me for 2021 is to ensure – by one means or another – that that path is passable over two barbed wire fences and down to a stream (which the mayor says is to be bridged). After that stream the path, probably involving two more stiles, then passes on to the Roma Track (voie romaine), beyond. Then, when they can finally come here, my grandchildren can go down to the stream by themselves with a picnic; and, second, when I choose I can walk from here to Savigny-le-Jeune and on to Curgy without setting foot on a roadway.

A Burgundy diary – 25 December 2020 (Christmas)

Snow was forecast for today. A few flakes fell but not enough, I think – not enough, I know – to call it a white Christmas. We walked into the forest at mid-afternoon. Away to the north west we could see a short stretch – no more – of the Morvan (hills to the west and north of here), with a dusting of snow. As we walked back a few meagre flakes fell on my black sweater. No, none of this was enough for a white Christmas. That will have to await another year.

I don’t believe I’ve ever seen a white Christmas. In Bristol we only had snow at all, one year in fifteen; and never at Christmas. The bitter cold winter of 1963 saw three months of snow; but it started to fall a day or two after Christmas, where I lived. Ten years ago snow fell as I ended – or so it seemed – my professional career and left my office in Bristol for the last time on 30 November 2010. The snow fell all the next day. It lay for nearly a month. On 24 December 2010 it started to thaw. By 25 December it was such abject slush it did not merit the term ‘white’ for Christmas day.

I was living in the Cotswolds then. Walking on Minchinhampton Common, or along the old railway line to snowed Stroud you were in another world. Beneath bowed black branches of hawthorn and holly, I passed silently to Stroud. Everywhere you walked through the stunned greens and snow swept paths. Hushed snow – as it seemed then – shed a new grey light on that stone stepped countryside, till the sun shone again.  

Today the forest is quite dark beneath the trees. All is silent beneath the grey sky. You want snow, of course. But the cold wind in the stunted oaks is good, as we climb the hill. The light is clear. And it falls slowly as the snowless day starts to close.

A Burgundy diary – 19 December 2020

A living language; how living?…

In my late twenties I used to worry – I still do – that English would get taken over as US English, even to us all having US accents. So many people watch so much television, much of it, with many of the films in the cinemas, then, of US material. I won’t say ‘American’ as that takes in also people from Canada to Argentina; and most of them don’t speak English at all. To call US people ‘Americans’ is sloppy, and bad manners to people of most of the Americas, in my view.

I was walking in the Yorkshire Dales about that time. I passed a farmhouse. In front of the house I heard a child, about five, with the broadest Yorkshire accent imaginable. My worries receded. And it occurred to me then that, of course, the first speakers we hear are not the television but – mostly – our parents or brothers and sisters. It is there speech a child will imitate.

Parallel with worries about US invasiveness is the fact of my belief – acceptance might be more apt – that English is a living language. Shakespeare invented many words. I like inventing them myself. I don’t think there is a word for the process of something or someone being ignored, namely ‘ignoral’. Why not ‘I found his ignoral of me to be quite insulting’ (‘… his ignoring of me’ is not quite the same)? We add ‘y’ to lots of nouns to make them adjectives: ‘bushy’, ‘shaggy’, ‘cloudy’ some in the dictionary, some invented. A similar effect is achieved by adding ‘-ish’ to an adjective meaning ‘fairly’: ‘blackish’, ‘fastish’… The French will not permit that.

But who wants English to be too ‘living’? That takes me back to US words… ‘Dumb’ seems to be used routinely now to mean unintelligent, which I would truly resent if I was mute. I find it offensive anyway, and I am by no means mute (thus far). Because I cannot speak why should it be assumed I am stupid? ‘Smart’ I think of as well-dressed; but many people nowadays think it means bright, as do US people. If you speak proper English why not say ‘bright’ or ‘intelligent’. I go shopping in a shop; but often – even the BBC – talk of a ‘store’. What do people do in a store: spend their money ‘storing’?

New shoots of language is one thing. Corruption by what US people say is another question, surely? We’re fast loosing prepositions to sloppy US ways – to ‘protest’ something; to ‘appeal a decision’ (most English appeal courts adopt that lazy usage); ‘to debate a person’ (ie debate a proposition with someone). ‘Vs’ – for ‘v’ (against or versus) – is creeping in everywhere. How long before we must ‘honor our father and mother’, or ‘put on our rusty armor’. And did I see ‘gonna’ the other day, meaning (in US English), ‘going to’? Language must live. It cannot – must not – be completely rigid. Where would English be without Chaucer, Shakespeare and Dylan Thomas? That Yorkshire child would have used many words I’d never heard, and elided others to make new forms of speech. But it is one thing for the English – and people in Yorkshire, Cornwall and East Anglia (say) – to develop their own fresh linguistic flora. It is quite another for English – properly so called – itself to be nibbled away at, and ultimately be taken over by, the worm of the language used by US people.

A Burgundy diary – 14 December 2020

John le Carré (1931-2020)

John le Carré has died aged 89. I read The Spy who came in from the Cold sitting up my favourite tree at school (one week-end at my then boarding school). I’d like to think it made me develop some of the adolescent and radical thoughts which began to develop then (I was one of 22 in my school who voted Labour in our 1966 mock election); but I don’t think so. To me aged around sixteen it was a spy story very different from the James Bond stories I’d read till then. It had the drabness – real life? – of the Graham Greene I was also reading. It caught, in some way, the atmosphere of Camus I’d read a little of. I can’t claim I understood its potential for subversiveness.

I see le Carré and George Orwell as having comparable political strains: that awkward, critical anti-establishment English strain of thinking and writing which each practised in their very different genres of writing. Each have a deep humanity; each have a way of looking at politics and life which can be difficult to categorise. Their thoughtfulness runs rich with a love of England which mixes – often vehemently – with a deep questioning vein. It hates the rigidity and suffocation, even cruelty, of communism. It hates too the suffocation of some Englishness: its class system, its obsession with rank (I am pleased to read le Carré refused one of our tinny decorations) and the branding of our tongues, as le Carré called it to John Banville (an Irish interviewer).

People like le Carré, Greene and Orwell define the English, and what can be Englishness, as much as, and in deep contrast to, our appalling Tory politicians. Is it significant that all three writers – as did I, and as did the gruesome Johnson – went to relatively well-known public (ie intensely private, and expensive) schools? All three made a living from fiction; and when it was fiction, they knew it. Johnson and his ilk cannot distinguish fiction from life and its realities for the people they are elected to serve.

And now BBC Radio 3 are playing the Tinker, Tailor, Soldier, Spy music by Geoffrey Burgon. That’ll take me back to 1979; oh yes, it takes me back. It makes you realise – from the early 60s to now – what a massive period John le Carré spanned. And that he lived and wrote through such a seismic period of societal and political change.

David Burrows

A Burgundy diary – 13 December 2020 (St Lucy’s day)

Winter sun and EU departure

Winter sun bathes the Burgundy hillside and fields. The gold of the last oak-leaves powder through the darker trees. Sun shines on the nearer trunks. Green fields are rich everywhere. Clouds are just faint smudges in the winter blue sky.

Somewhere north of here crazy – truly, crazy – English (they’re mostly lying English) politicians argue for a ‘deal’ or ‘no deal’ departure from Europe. It cannot be good for any British person (while Britain remains a unity: not much longer, I think), save for the very rich. Britain has become a by-word for lying and selfishness. Now Trump has gone, we – for I am still English, ashamedly – are the leading liars of the Western hemisphere. Perfidious Albion it is again.

And, English though I am, I feel so far from it. Yes it matters to me; but in a detached way. I am in true Europe. The sun shines here. Food is in the shops. Épinac’s two pharmacies are well stocked with drugs. Ships come and go from EU ports (as far as I know).

But some of my family and many of my friends are in that piteous, gold-besotted country. I can only hope that one day the evil moneyed British who have brought this EU departure on their country will be taxed to their guts, whether they be in Monaco or anywhere else in their tawdry world; and that the people who voted for it and for the vile Tories will learn to regret their own greed and selfishness.

A Burgundy diary – 5 December 202

Winter morning sunlight, holly and a glowing cold afternoon: and so to a walk in local Burgundy woods.

We take a path up the hill to the top of the ridge (an old, old lane, I am sure – from Sully to Auxy and beyond). We walk along the top flank of the hill – almost all the time through trees – and then cut down to the valley again, and home. It’s a comfortable three mile (5 kms) walk.

I’ve always noticed, alongside the paths on the hillside, another path cut through the woods. By the return path the lesser path runs parallel for a few 500 yards (metres) or so; and then the main path opens out as it reaches the upland plain. The path upward – upward for us, because that’s the way we walk it (see below, in spring) – starts with the new-cut path on our right, then as the main path snakes right the cut path carries on to the left through the fallen leaves and the stunted oaks. On the main path I am sure I can see traces where carriage or cart wheels have worn a track. Today wild boar had snuffled their way for acorns truffling – can I say that of acorns? – their way amongst the fallen leaves on the path.

I know the main path – as I see it – is the older. It is borded by occasional boundary stones (bornes) with old markings on them: a crown, a bishop’s mitre, a Corsican head (associated with the family of one of the local chateaux).

But why cut the new path, if path it is? I think it’s a path, but why there?…

A Burgundy diary – 28 November 2020

Hawthorne berries are the autumn version of ‘darling buds of May’ (Shakespeare, Sonnet 18) or May flowers. The berries now thread the Burgundy hedges. I’ve put some randomly in a flower-pot with a little earth; and if they grow next year they’ll be in the front hedge I’m planning.

I went to a cave co-operative in Valence (by the Rhone) twenty years ago. Tasting notes for a red wine there said it had a hint of aubépin berries. I learned the word then and that it meant hawthorn. ‘You eat hawthorn berries’ I asked. ‘Yes’ said the man selling the wine. And yes, in my Richard Mabey – ‘Manger Sauvage’ (‘Food for free’) – there are a couple of ideas for cooking and eating the berries; and for using hawthorn leaves in spring in salad.

The autumn after my Rhone trip I ate a few hawthorn berries. They tasted a little like a very ripe apple. It is time for me to try cooking them, I think.

A Burgundy diary – 21 November 2020

Autumn can be a sad time of year; it can be harsh and a harbinger of cold; a time short days and long dark nights. At first December there are still four more months till the clocks go whichever it is to lengthen the evenings again. And autumn can glow.

My year in Burgundy – if it is to be a year: it may be much longer – has showed me that autumn can be kind as well as sad. The last few days – still so dry I fear – have shone with a glow of varied browns and oak-tree soft greens; and of rich deep greens in the fields. All the leaves in the trees in the garden have fallen, but many others (mostly oaks, I think) stretching away beyond the house have a wealth of near orange and brown leaves. Last night there was a hard frost; and more is promised. In the days the clear skies allows a fresh sun-light to shine on the forests and stone houses and fields.

On a walk this afternoon I saw berries everywhere in the hedges: sloe (prunelle), hawthorn (aubepin: I love that one, ie dawn pine) and rose hips (eglantine, or gratte cul (scratch back)). I brought back to try planting the hawthorn; and soon – tomorrow – I’ll get some of the others. I want to see whether, if I just cover them in soil in a pot outside, will two or three germinate.

And I remembered that once the frost has broken the skins of sloes, then they are ready for making sloe gin. I don’t think there’s been enough frost yet. I’ll wait a few more days. If they’re ready I’ll harvest a batch, add a pile of sugar, and soak that lot in gin. Then we can see if the gin is sufficiently sloe-flavoured and ready for Christmas?

David Burrows

A Burgundy diary – 15 November 2020

Quinces

And now quinces…. It started with eight on a tree we planted two years ago. Lucie made a duck and quinces braised in sweet wine dish. Then it was quince jam and pate from more local quinces. Today it’s been quince jelly; and now we have no more jars to put jam in…

I love quinces: the soft distinct scent between pepper and roses – nearer roses, I think; but so distinctive. Its yellow-green skin is dusted with yeast; its flesh – sadly – too firm to eat uncooked. Its scent is shared only, in my experience, with that of a tight small japonica fruit.

These quinces came from our 93 year-old neighbour. When offered a jar of the jelly she refused politely. She’s had some of the pate; but of quince jelly she’s had too much already this year from her own friends and family.

A Burgundy diary – 2 November 2020

Midsummer in November

This afternoon the temperature was 23˚C. It was a beautiful day. High light clouds moved gradually in the blue sky. A light breeze kept the day equable. In June you’d have been happy with a day like that. But mid-summer in November? This was 2 November 2020. Each unseasonal day like today is not a joy to me as it should be; but a sinister reminder of much worse things to come.

Leaves are falling fast in the summer sun. A few fruit still tack about in the limpid air. I killed a couple of hornets last week: they’d probably woken up after the chilly early September. It could be June; save that the leaves are yellowing and falling. Many – most, from many trees – have fallen. By six it is dark, the last sky reds and oranges drained from the warm sky.

Our squirrel came to the back wall window. The buzzard still hunts over, and settles lazily winged in, our field. A rabbit hopped – lopped – over the garden a couple of days ago. As ever, song-birds dart and fly; and the lumbering crows lumber.

But where is all this going? 23˚C is not good in November. We had fairly severe drought here this summer. It will get worse; and our children – my grandchildren – will suffer.

David Burrows

2 November 2020