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 – 9 August 2021

Yes, yes this is Brittany, not Burgundy. And on a grey day with shoulders shaking slightly as I zoomed in on the operative part of this cross, I am afraid the picture is a fuzzy reproduction.

All over France are calvaires, or crosses of this height, often at road junctions. I cannot comment on all France, but only of near us in Burgundy and here in Brittany. The difference between Burgundy and here is striking. Without my having conducted any enquiry, I reckon most – perhaps all – in Burgundy are fairly prosaic mostly 19th century efforts.

In Brittany there are modern versions, I am sure; but many are like this: simple, crude and intensely moving. The faith poured into it – as it seems to me – is palpable. Or is that romantic guff? The local sculptor was paid. He (probably it was a ‘he’) did his best. That is all…

A Burgundy diary – 21 July 2021

Paris opens

To central Paris last Saturday as the weather just began to warm up. And Paris was warming up. People were out and eating and drinking on the pavements. Shops, bars and restaurants were open.

I’ve not been into central Paris since the confinement started. It was great to be there again. Lunch at Nemrod, in rue Cherche Midi (I love that name for a street), a brasserie we know; shopping in the Rue de Rennes; and then – oh joy – the discovery that the central part of Gibert Joseh – which I was told was closing many of its outlets – was still open. The small section with English books was there in the surviving shop in Boulevard St Michel. So trips to Paris can be completed with a trip to the book shop.

Meanwhile Burgundy, which I left in grey and rain, is now smiling broadly under sun and enough breeze to make it fine summer weather. The joy of being – as I am – in a stone house is that the temperature keeps more level – cooler – than outside; and in winter it keeps out some of the deeper cold. The pottager is thriving, the bees are busy – and buzzing, of course. The hives – two now – are a cluster of industrious abbeilles who I meet also in all sorts of parts of the garden.

A Burgundy diary – 26 June 2021

Disappearance of butterflies

The picture quality is terrible, the definition is all wrong and you can hardly see its object. It is hardly worth posting, save perhaps for the colour of the patch of thyme we have there. But look carefully. There is a small tortoise-shell butterfly who was almost impossible to photograph. He or she tantalised me: opening wings briefly; then as I closed in closing them again and reverting to camouflage.

I learned a little about butterflies when I was eight, at school: that they have all around vision, but can only see a metre or two (as I recall). I found that very difficult to imagine; and if it is right, I could have gone closer for my photograph. We learned mostly only about cabbage whites and their family: the red admiral, peacock, painted lady and small tortoise-shell.

And then at lunch-time today I read a book review – truly sobering – of The Disappearance of Butterflies by Josef H Reichholf (tr, Gwen Clayton, Polity Press £25; review in New Statesman, 4-10 June, 42, by Mark Cocker). Since the 1970s, in Germany – and presumably this applies also in most of Western Europe  – bees have declined in number by 80%. Tidiness of landscape is not good for the countryside generally, and also for butterflies. Neatness is not necessarily ‘best farming practice’ if you care about butterflies. Untidiness and wildlife abundance are closely connected.

Our bee-keeper friend excoriates the mowing of grass road verges. Why trim hedges when – as mostly around here – you are just flailing at them, assaulting them; and alongside the assaulted hedge, you (the farmer) will have a barbed wire or electric fence, often both. We all of us have so much to learn; and the octo-decimation (8 times 10 = 80%) of butterflies is but a part of it.

A Burgundy diary – 24 June 2021

Climate crisis in action: Midsummer Day

It is Midsummer Day and the rain is nearly joined up as it falls steadily from a stolid grey sky. The rain-filled air is windless. From the wide window ahead of me, I cannot see the Morvan hills away to the north-west. Floods will get more frequent; and, round here, serious forest fires – not this year, probably – are inevitable.

I sound Eyoreish? No, just realistic, I believe. I fear for my grand-children. Anyone who is not remarkably stupid – like the awful Mr Trump – can see clear evidence of the crisis. And if they let themselves see. You don’t have to be a member of Green Peace, or hear and understand what David Attenborough is saying, tirelessly, to realise that a nasty future is not very far away, unless we change our lives radically.

If people on this planet go on like this, we – and our grand-children after us – will burn, be burned, or starve in not too many years; or, of course, a handful of the many atom bombs around the world will get us. A grisly end – gradual in flood or fire, or bomb-fed – awaits us. How anyone can fly in an aeroplane (save for matters of life and death; possibly for the essential sake of family) is beyond me. Holiday, and many other flights, flights should be outlawed. A lot of business, we now know, can be conducted on-line; or we can work out how it can be done without air travel.

Till then – today and beneath the rain – the flowers grow, there is green everywhere; and trees and hedges stand greenly in the moist air…

And, yes, its Midsummer Day, one of the quarter days (eg for payment of rent). At law school I learned to remember the quarter days – 25 March, 24 June, 29 September and 25 December. The last is easy, it’s Christmas Day; and for the remaining three, count the letters in the month, and there you are…  

A Burgundy diary – 21 June 2021

The maire, a path and a work in progress

Midsummers Day, and a  trip to the mayor (maire) in the mairie in Sully. I cycled down. First I could congratulate him on one of his special schemes: to have in Sully, which is the commune where I live (in Creusefond), a café multiservice – that is to say, a small outlet for some groceries, a bar, a depot de pain (sale of bread) and so one. In that respect, the aim is to give Sully some heart. My neighbour – now 93 – recalls that when she came here 50 years ago there were at least three shops. I can remember a bar, one summer in the 1990s. And there is a large 1930s building, which was once the post office: it says so still on the outside.

I went to see Emmanu Roucher, the maire – we’re on tu toi terms – about le Chemin du Pont Romain (it is not Roman at all); and to say the signs which have been posted (there are others around the commune) need some more follow through before the job is done. A farm called Mousseau is the object of the path, but to get there now would call for perseverance, and a good pair of Wellington boots. I want here to do no more than record what is still a work in progress. I shall return to the subject. But I want also to help – even financially – with a gate or two, stiles or stepping-stones, if the mayor will let me.

For now I record only a modest dream: that when my grand children (now aged 5 and 3) next are here – covid19 etc, permitting – I can give them some sandwiches and a bottle of local drink, point them to the chemin and the Pont Romain and tell them to walk down to the stream at the bottom of the hill for a picnic. That sounds fair; but for now the path just beyond the pont is stinging nettles and long – 1 meter + – grass; and a high metal gate the farmer has closed again (my grand children could neither climb it, nor undo the latch securing it). Nextthere is a boggy stretch of path leading to two defensive lines of the local farmer’s impassable barbed wire fence; a wet slope after you pass the barbed wire – if you can: I cannot without risking my virility. Beyond the wet slope, there is scrub, brambles (ronces) and dead wood, down to what I imagine to be my grand-children’s picnic site by the stream (500-600 yards – metres – from here).

And beyond the stream, if you can scramble across it, you mount on a soggy track which leads to the farm (Mousseau), the object of the expedition, started at the pont romain. The fgarm iks a cluster of buildings like a small hamlet. Last summer I chatted with a bloke who was out between the buildings, playing his saxophone: the sound carried to us here. At Mousseau you are on a former voie romaine (an old Roman pathway). And from a glance at the map, I would say you’ve travelled about a kilometre (little over half a mile)…

A Burgundy diary – 4 June 2021

Burgeoning grass and flowers; and a hoopoe

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

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

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

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

A Burgundy diary – 30 May 2021

Signs of life again…

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

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

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

A Burgundy diary – 25 May 2021

Brenne and water

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

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

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

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

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

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

A Burgundy diary – 21 May 2021

Wild flowers in a grey May

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

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

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

A Burgundy diary – 20 May 2021

Buttercups and bees in the countryside

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

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

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

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