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 –  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.

A Burgundy diary –  18 April 2022

A time of blossom…

It’s a time of blossom and wild flowers here. It is blossom and Easter for this note today. All being well wild flowers will stretch from late January (snow drops) till autumn: 8 or 9 months of why you live in Burgundy. Most of the blossom will have drifted down in the next ten days; though each type of blossom has its short season. For us it has been the peach and nectarine, through plums and pears, to – latest, and still a little tentative – the apple trees and quince.

And then for the waiting to see if the fruit has taken. How much blossom over the summer months will mutate into fruit? Two years we were almost overwhelmed by cherries – how could that ever be possible? This year the cherry blossom – wild cherry and domesticated – is everywhere; but how much will survive any late frosts? We covered a couple of small trees in blossom, to insulate them a little, two weeks ago; but most are too big. Any frost this spring, I am sure, will kill the cherries. Our pears – poires des cochons (says out neighbour) will weather anything. And apples and quinces? Let us see…

What I have learned is that, amongst the blossom, there really can be Yeats’s ‘Bee loud glades’. ‘Loud’ may be going it; but a definite susurration of bees there is. Our bees must be loving it…

Finally, for blossom-spotters: above is apple, and at the bottom is cherry on pears. In between is our young apple-tree, the second sentinel pear (on the left), small plum, quince and cherry trees; and then an oak sized crab apple tree in the lane towards Vergoncey.  

A Burgundy diary –   10 April 2022

Blossom and wild flowers in the Spring

Spring is arriving falteringly. Most of March was warm and dry, luring early blossom to tempt their fate with any April frosts. Wild flowers by the lane-sides and in the forests proliferated: celandine was first, I think (after the snow-drops, of course); then violets, and wood anemone, and cowslips. Dandelions rich and yellow compete with the more subtle celandine, and now perry-winkle with the modest violet. We’ve had leaves form the wild garlic (ail des ours) in salad and quiche already; but soon they’ll be in flower in the woods too.

We went to Paris last week-end, and left two of our smaller fruit trees encased in a sort of white synthetic blanket. And last night again we covered them. I am sure some of our blossoms will have been caught by this recent frost; but many of our trees are hearing our beseeching them and holding back on letting their budding blossoms bloom.

Last year we had no cherries. The year before was a glut. Let us see what happens this year. If the frost comes no more, we’ll have fruit. If it descends on us again, there are only so many trees we can cocoon against it.

A Burgundy diary – 27 February 2022

Creusefond, a ruisseau

I live in a village – a hamlet, in truth – called Creusefond. And that is the name of the small stream (ruisseau) which runs through it to the larger stream, la Drée. The Drée goes on to join the Arroux, which ends up in the Loire and so on to the Atlantic.

Near the spot in my photo is the source of the Creusefond, which itself means the fontaine (fond), or source, of the Creuse – just a petite Creuse (there are much larger Creuses and one département named after one of them, in the south-west centre of France). Our Creusefond goes down the scarp slope of the tree-lined plateau, from near Auxy, passes through the middle of our village and then makes its way through the fields to the Drée; and there gives up its life to the larger river. But, the water in my picture will one day join the Atlantic with all the other streams which feed the Atlantic.

In the undergrowth by the stream there is still little evidence of growth, but leaves were appearing on the wild honey suckle which scrambles through the forest.

A Burgundy diary – 19 February 2022

A walk in the Morvan

On a grey, but mostly dry, afternoon we set off for a walk in the Morvan hills.  It was a part of the area we can see ten miles or so from the barn. Wet green fields sloped away one side of our path (a farm track, at that stage); and the other was bounded by scrubby hedges with field and then pine forest above. A small stream shared the track with us part of the way, and occasionally gurgled away into a neighbouring field. At one point it filled a track-wide puddle which we than had to pass: tufts at the side of the track, stones in the puddle and a jump at the end three of four metres away saw us over its length. We came to a small hamlet with two or three farmhouses. Here the tack was metalled from the hamlet to a small road.

From that road we walked up into the pine forest: a steady firm tack which climbed around the side of the hill. Rain threatened; but mostly it stayed dry. The trees held dark and looming as they mounted the small slope above us. Trunks were black. At the summit the well-used track became grass. Four trees had fallen across the path left there for any users of the path to scramble over. Bramble (ronces) crept unseen across the path, and threatened every few metres to trip us up.

Another three meter deep puddle with scrub crowded edges greeted us as we neared the end of our walk. Feet finally a little wet, we strode the last kilometre to the car and home. And with hopes of longer evenings and more exploring in the Morvan ahead.

Postscript: I’ve found many more snow drops since I put up my last post, mostly in the lane either side of the ‘Pont Romain’ by the barn.

A Burgundy diary – 15 February 2022

Snowdrops and an approach of spring

Only very modest – in size and extent – snowdrops have appeared this year. We have a few small groups dotted around the garden now. There used to be a quince tree (cognassier) outside the back door with a patch of snowdrops in early spring under it. The tree started shedding whole branches a few years ago. It had to go I am sad to say. From that patch of snowdrops only a very few survive amongst the stones I’ve laid around the door.

A few buds are coming on trees and shrubs. Catkins have been in the hazel trees for weeks. Twigs in a few trees are shaded with red. But we still have little rain, even on a cloudy day like today. I used to love evidence of the arrival of spring. Now this is tinged by fears of its early arrival being just more evidence of the worsening climate crisis.

A Burgundy diary – 13 February 2022

Beaune: a cold clear day

Market day in Beaune is on Saturday. Yesterday in cold clear weather we drove up the Autun to Beaune road. It passes 200 metres from our front door. It is twenty-five miles (forty kilometres) to Beaune. The Côte d’Or pretty much starts in Nolay, almost exactly half way up the road. The Côte d’Or department starts just above Nolay. Form there it is Grand Cru wine villages all the way: St Aubin and St Romain (just off the road); then Auxey Duresses, Monthelie, Volnay and Pommard; and just to the right, visible most of the last ten kilometres, is the steeple of Meursault. All are part of the Côte de Beaune.

As we passed through the valley towards Beaune we could see the smoke of the half-oil drums – like barrows – burning last years wine twigs, keeping the vines a little warm in the overnight frost.

Beaune is another world from where we are, this side of the hill. Here it is all cows and green fields and forests. Hedges – or what pass for hedges – are everywhere. There it is sloping vineyards, some trees, and limestone villages where the viticulteurs cluster in their comfortable houses. Paths pass between the vineyards, everywhere; and sometimes more substantial tracks. There are no hedges; though one or two wealthier viticulteurs may have erected a wal here or there.

I love Beaune, but yesterday it felt suddenly almost oppressively chic. Well-dressed people were out in the winter sun, shopping. All the shops – often expensive shops – are still open and doing business (where a substantial proportion of businesses in Autun and Arnay-le-Duc are bust and the premises empty: a combination of local supermarkets and more and more people shopping on-line). And, of course, wine-growing can be hard work, I am sure, but – as Lucie pointed out – it is profitable.

Like Autun, the market was busy. Lots of bistros were open. We ate well and came home through the afternoon light, the vineyards – as Lucie said – like a clothing of tweed at this time of year, spread up the gently sloping hills, and later below the cliffs above St Romain.