Private law rights of children: Part 1

A 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, 14 August 2026

Blocked pathways into the forest, blocked to for fire-fighters

An attempt at translation to french is below

The climate crisis continues here in Sully as in most of the rest of Western Europe, and beyond. What does it – can it – mean for each of us; and is there anything each of us can do about it? Of course it is the big burners in USA, India and China who must massively control their greedy consumers; but if we all do nothing, inevitably things will get worse and worse. So at a tiny, personal level is there anything each of us in Sully can do?

I assume in very basic terms that three things most affect us now: car use with fossil fuel (ie petrol); air travel; and methane from cows. I’ll leave cows, especially Charolais cows, out of this – for now….

Climate crisis is a result of burning fossil fuels, which release greenhouse gases that trap heat, raising temperatures. Extra heat alters the planet’s water cycle and energy balance and makes extreme events – heatwaves, downpours and severe drought – more frequent and intense.

Air travel? If I ruled the world, I’d say no-one should travel for a distance of (say) less than 2,000 kilometres: public transport (mostly trains) is almost always available, certainly across most of Europe. And as far as possible, no-one should have a holiday using air transport, please.

But what about cars? They are the worst offender in our climate crisis. Yet, increasingly – and without remedial steps by all of us it will worsen still – people in the countryside are dependent on cars; even those of us who use bicycles – commendably – or motor-bikes for shorter journeys.

I need to reflect more on local car travel; but first a result of the climate crisis – not a cause of it – is that forest fires are increasing in areas affected.

Potential for forest fire in Sully; and its control by our mayor…

My last post included a cri du coeur concerning the combustibility of the wonderful Sully commune forest, including that (I suggested)

It probably takes up a third or more of the area of the commune. [It] is criss-crossed by paths. I probably know many of those which are passable. Many are overgrown and blocked by vegetation. That means not only to the few walkers who walk the paths, but – more serious nowadays – to firefighters who may soon be called out to deal with fires in the forest.

Please forgive my sarcasm, but the mayor of Sully has dealt with the Western Europe climate crisis and as extensive areas of the Gironde – even of the United Kingdom – burn by:

• Convening a meeting of a few councillors in early August to consider the sprinkling of roses outside the mairie;
• Today, ensuring that the small stream outside the marie is pruned at expense – I assume – to all Sullysiens
• Calling a public meeting late in September 2026 with the local pompiers; and
• By ensuring that a passage of 150 metres each side of the Chemin du Pont Romain here in Creusefond is cleared (see my) though only eight or ten deciduous trees at most (oh and may be a few snails and other fauna) are threatened by fire there.

Meanwhile many paths which would secure access for pompiers to the forest remain blocked. Lightning could strike anywhere, and it has and still is in Canada and USA. Vast areas of forest and some of our homes could go up. A neighbour of ours here in Creusefond lit a fire – in his back garden, I think – a couple of days ago. Clearing a 150 metre pathway and killing off a few snails and other fauna is, I fear, not enough to try to deal with forest fires…

And below, friends and neighbours, is what may be an old Celtic path for farmers and their families to come down from their farms on the Auxy plateau to the Gallo-Romain fort by Chassepuits; and it is quite impassable for a firefighter (or indeed for a modern walker).

La crise climatique se poursuit ici à Sully, comme dans la majeure partie de l’Europe occidentale et au-delà. Que signifie-t-elle — ou que peut-elle signifier — pour chacun d’entre nous ? Et y a-t-il quelque chose que nous puissions faire à notre échelle ? Certes, ce sont les grands émetteurs comme les États-Unis, l’Inde et la Chine qui doivent freiner massivement la consommation effrénée de leurs habitants ; mais si nous restons tous les bras croisés, la situation ne fera qu’empirer inévitablement. Alors, à notre modeste niveau individuel, que pouvons-nous faire, nous habitants de Sully ?
Pour simplifier, je dirais que trois facteurs nous touchent particulièrement aujourd’hui : l’utilisation de voitures fonctionnant aux énergies fossiles (essence), le transport aérien et le méthane émis par les bovins. Je laisserai de côté la question des vaches — et notamment des Charolaises — pour l’instant…
La crise climatique résulte de la combustion d’énergies fossiles, qui libèrent des gaz à effet de serre piégeant la chaleur et provoquant une hausse des températures. Cet excès de chaleur perturbe le cycle de l’eau et le bilan énergétique de la planète, rendant les phénomènes extrêmes — vagues de chaleur, pluies diluviennes et sécheresses sévères — plus fréquents et plus intenses.
Le transport aérien ? Si je gouvernais le monde, j’interdirais tout déplacement sur une distance inférieure à (disons) 2 000 kilomètres : les transports en commun (surtout le train) sont presque toujours une option, du moins dans la majeure partie de l’Europe. Et, dans la mesure du possible, plus personne ne devrait prendre l’avion pour partir en vacances.
Mais qu’en est-il des voitures ? Elles sont les principales responsables de la crise climatique. Pourtant, les habitants des zones rurales en sont de plus en plus dépendants — une situation qui ne fera qu’empirer sans une action collective —, y compris ceux d’entre nous qui utilisent le vélo (ce qui est louable) ou la moto pour les trajets courts.
Je dois approfondir ma réflexion sur les déplacements locaux en voiture ; mais tout d’abord, il convient de noter qu’une conséquence de la crise climatique — et non une cause — est la multiplication des feux de forêt dans les zones touchées.

Le risque d’incendie de forêt à Sully et sa gestion par notre maire…
Mon précédent billet exprimait un cri du cœur concernant l’inflammabilité de la magnifique forêt communale de Sully, en soulignant notamment que…
Elle occupe probablement un tiers, voire plus, de la superficie de la commune. Elle est sillonnée de sentiers. Je connais sans doute bon nombre de ceux qui sont praticables. Beaucoup sont envahis et bloqués par la végétation. Cela concerne non seulement les quelques promeneurs qui parcourent les sentiers, mais aussi – ce qui est plus grave de nos jours – les pompiers qui pourraient bientôt être appelés à intervenir sur des incendies de forêt.
Veuillez excuser mon sarcasme, mais face à la crise climatique qui frappe l’Europe de l’Ouest et alors que de vastes zones de la Gironde – voire du Royaume-Uni – partent en fumée, le maire de Sully a réagi en :
• Convoquant une réunion de quelques conseillers début août pour discuter de l’arrosage des rosiers devant la mairie ;
• Veillant aujourd’hui à ce que le petit ruisseau devant la mairie soit nettoyé, aux frais – je le suppose – de tous les Sullysiens ;
• Programmant une réunion publique fin septembre 2026 avec les pompiers locaux ; et
• Faisant dégager un passage de 150 mètres de part et d’autre du Chemin du Pont Romain, ici à Creusefond, alors que seuls huit ou dix arbres à feuilles caduques tout au plus (oh, et peut-être quelques escargots et autres animaux) y sont menacés par le feu.
Pendant ce temps, de nombreux chemins qui permettraient aux pompiers d’accéder à la forêt restent obstrués. La foudre peut frapper n’importe où ; c’est d’ailleurs ce qui se passe actuellement au Canada et aux États-Unis. De vastes étendues forestières et certaines de nos maisons pourraient partir en fumée. L’un de nos voisins, ici à Creusefond, a allumé un feu – dans son jardin, je crois – il y a quelques jours. Dégager un passage de 150 mètres et tuer quelques escargots et autres animaux ne suffit pas, je le crains, pour faire face aux incendies de forêt…
Et ci-dessous, chers amis et voisins, voici ce qui pourrait être un ancien chemin celte, emprunté autrefois par les agriculteurs et leurs familles pour descendre de leurs fermes du plateau d’Auxy vers le fort gallo-romain près de Chassepuits ; un chemin aujourd’hui totalement impraticable pour un pompier (ou même pour un randonneur moderne).

Burgundy diary 3 August 2026

Introducing Sully, Soane-et-Loire

I live in the commune of Sully in the French department of Saone-et-Loire. It is a commune of four distinct parts threaded through by stone-built farms and farmland, by gentle streams and Charolais – almost entirely Charolais – cows.

First there is Sully, the bourg with its mairie, a war memorial, its church, a chambre d’hote (normally best translated as bed-and-breakfast), a modest – very modest – bar-restaurant and a jumble of mostly seventeenth to nineteenth century houses. Most are along the main street and on up to the bridge over the River Drée. The bourg lies on each side of the Drée river plain. The commune climbs up to its northern hills and through the tiny hamlets of Bouton and Morgelle. It is said that vines for wine may be grown here again before long.

Next, set in the flood plain and within the bourg is the incongruous late sixteenth century chateau. It makes no attempt to blend in any way with its surroundings, as was the way with owners of the period. It makes no sense – for me at least – in this farming countryside. Its family name is not Burgundian (any more than is mine). The Mac Mahons, as it is written locally, are an Irish Stuart loyalist family, one of whom – Jean-Baptiste – married the Sully heiress. The chateau is an anachronism by a number of criteria and should long ago – surely? – have been taken over by a French state trust (or the equivalent).

South of the bourg you climb gently, some three kilometres, to Creusefond. Departmental road civil servants have divided Creusefond into three. There is les Caillots, where we live and which has recently been down-graded formally to hamlet (ie with a blue sign). The speed limit therefore climbs here to 70 kph where it was 50 kmp with a proportionate increased risk to all of us and especially to our cats.

Next is the Creusefond hamlet which lies in Sully commune. Finally is the Creusefond third hamlet which is on the far side of the Creusefond stream from us and in the commune of Curgy. The road furniture to define all this demands nine signs where, for one settlement, it would normally be four (one red-bordered in, one out and the same in the other direction). And, no, I don’t know who pays for all the extra signage…

Finally the jewel of Sully commune is its forest, Forêt Domanaile des Battées. It probably takes up a third or more of the are of the commune. The forest runs for ten kilometres from beside Autun to where the TGV runs. More than half of that is within Sully. The forest is criss-crossed by paths. I probably know many of those which are passable. Many others are no longer passable. Many are overgrown and blocked by vegetation. That means not only to the few walkers who walk the paths, but – more serious nowadays – to firefighters who may soon be called out to deal with fires. Gates into the forest may be passable to pedestrians, but – unless firefighters have keys – not to them. Increasing areas of pine has been planted. Not only are pines ugly – well, to my taste anyway; but a pine forest is likely to be more combustible than deciduous forest.

My son, who lives in England, but visits us occasionally, said of the forest last year: if he lived here he would for ever be walking in the forest. I can only hope it is preserved against fire for people like him who want to walk there; and that steps be found by whichever layer of French local government is responsible to give the forests the care they merit. Most important, so much wild life – and not just for hunting – lives in the forest. They create much of what is there. They do not deserve to be cooked thanks to the climate crisis we humans have created.

A Burgundy diary, 16 July 2026

A pathway in Sully: roman, medieval and modern

The tiny hamlet of Savigny le Jeune near Curgy, has a farm on the road from Creusefond to Curgy. My path, described in what follows, starts at 607152043 (if I am reading French map references correctly) on IGN Map 2924SB (Arnay-le-Duc) by a spot height (marked on the map) of 380 and just above a named area called Paquier des Joncs on the map. From here I want to trace the Roman pathway to Épinac, and on to Beaune; and as the path runs – or may run – from the Curgy Commune and through into the Sully Commune.

The track is easy to follow today on a farm track across fields to a fork in the tracks. The right fork takes the walker through slightly less well charted paths to an avenue of trees (often a sign of an old track-way) and then into the woodland around the Ruisseau de Creusefond, which gives the modern village its name; and where you cross the commune boundary into Sully.

The Roman path would have forded the Creusefond stream. Two modern wooden foot bridges now span the stream; and then the path divides. One branch to Besancon goes by the Mousseaux farm and on falteringly but straight to north of Bouton and on to Uchey and on, on the bewitchingly named Chemin des Gendarmes.

The pathway I am concerned with goes right at this junction and then emerges by the petit chateau de Haut Puits (wells, not a mine, at this point) at spot height 392 on the D326; and off it sets again on a clear farm track and on, eventually, to Beaune. But where over the kilometre between the Mousseaux junction and the D326 did the path travel, as it must have done in Roman times and later?

Follow the track to the right from the Mousseaux junction. It is a a boggy ill-maintained area. The main pathway bends a little and heads direct north to les Caillots (where I live). The modern IGN map is unhelpful.

There is a spring beside the track you are now on. To your left is a dark passageway away from the Caillots branch. I think that passageway is the continuation of the Roman track which goes on – or would have gone on – across the fields (now hesitantly pastured by poor hungry Charolais cows and a bull or two) towards the petit chateau on the small hill above and then to the D326.

A deserted medieval village

And now for the evidence from medieval times. I am as certain as I can be that there was in the first field you come to after the spring (at map ref 608752047) a deserted medieval village – deserted, I suspect, at the time of the Plague in the 15^th or 16^th century. You can see the strip fields – evidence of medieval habitation – in that first field in the late evening as the sun is setting. A small medieval settlement would have been there alongside the Roman path and just above the spring and, conveniently, not far from the Creusefond stream.

The petit chateau, I am told by a servant of the family, had a number of wells. It was a day’s walk from Autun (if your luggage was carried, perhaps by a mule). Was the little chateau a bar or other stopping place for travellers; even an auberge on the route to Beaune, still a couple of days’ travel away. On the far side of what is now Chateau du haut Puits land you can resume your way – now eminently walkable – to Épinac and on.

David Burrows

Burgundy diary, 25 May 2026

Petroc

Hunting: a vicious ‘sport’

We have two cats, Scrap (a tabby) and Petroc (a Bengali, I think…). Both are aged a little over a year old.

This morning Petroc caught and was driving towards its death a mouse. As I write he may be eating it – or most of it – for an early breakfast. I find that part of cat ownership truly repulsive. Yet first, it could be said, that is what we want, in the sense that we don’t want too many mice around the house (inside or out in the garden). Second, it is part of a cat’s nature – for good or ill – to play with their prey (as is a Roman colosseum or with a bull-fight) and finally destroy.

Some might say we are complicit in that mouse’s torture and death, living with cats – as we do – in the countryside. Piety on my part must, perhaps, be tempered.

Yet, yet… It is not so long ago – I say to Petroc – that the revolting English habit of fox-hunting was banned. The hideous playing with till killing of the prey – in that case a deer – by upper-class Brits was so well portrayed in 1961 by Tony Richardson (himself, vigorously anti-hunt) in Tom Jones. For that, as for many reasons, catch the film if you can.

In season, around here in the forests, are hunters with their guns waiting to kill or maim and then kill (if caught) wild boar. Like fox hunters, I suspect – I’ve not asked, it must be said – I suspect they may justify their hunting: that they are controlling wild life in the forest. Or are they looking to fill pots with wild boar rillette, and the rest. I must find out…

A truly cowardly aspect of all this is the ladders which dot our forests. Like mute, malign sentinels they enable the hunters – like the watch of prison guards – the better to see and kill or maim their innocent prey.

If anyone asked me, I’d say a thinking human-being should be able to comprehend the sheer nastiness of death in the forest sufficient to stop her- or himself from hunting – ie killing for sport – any moving thing; and for whatever reason may be that maiming or killing.

David Burrows

A Burgundy diary: 17 January 2026 – A start to spring

Last week saw frozen and often foggy countryside, grey trees and foggy mysterious road sides. Temperatures invariably stayed below freezing.

Now it’s some rain and much warmer weather, and these work horses in a neighbouring field who watch and wait…

A Burgundy diary – 21 May 2025

A time of yellows, and grey…

Has May, this time of year, always been as flooded with yellow as it is in 2025. I am sure this year there are more buttercups, for example, all around us than ever before.

First at end of April there was rapeseed (why do we have such an unattractive word for what the French call colza). It has a lifeless pale yellow, and there is too much of it and, beyond its fields, it is invasive.

Colza here floods a field just out of sight from my picture. Now its flowers are over. Lucie tells me it is in range for her bees, and that they like it. We watched oil being ground from its seeds in a Paris market a few years ago.

From by and beyond our pound are iris and buttercups. The meadow is freckled with marguerites (ox-eye daisies). Can I call them yellow? Their bobbing heads are centred with yellow and white eye-lashes. And everywhere round here are broom (genet: hence Plantagenet) – in field sides, by the roads and in the country lanes. The broom and buttercup have a deep golden yellow flower.

And grey? Cloud has closed in today. That poor tree in the picture is bred to resist the cold Morvan wind. It comes in from the left of the picture. And today it blows grey and cold indeed.

David Burrows

21 May 2025 

A Burgundy diary – 18 May 2025

A cutting of Burgundy’s roadside verges

The season of cutting verges by the roads around here is upon us. Here, in the commune of Sully it started on Friday in full May growing season. In Curgy, one of our neighbouring communes, at least a metre has been shaved off inside from the roads. On Friday the sides of the road outside our house was scalped for around a metre. The Noiron lane I walk most days is – as I write – still intact and as my photo shows. I doubt the lane will last long. The local ravaging of our roadside flowers and fauna will go on.

But why all this destruction? I wonder if anyone calculates the death and or needless dispersal of bugs and other small animals which live in these verges; of the destruction of so many flowers (a few are shown in this post in a kilometre or so of the lane); of the deprival of fruits of the countryside to so many bees and birds who graze and pollinate here?

Needlessly – except to the tidy mind or destructive eye – the roadside vegetation and all its fauna has been massacred. And yes, why?

A Burgundy diary – 1 May 2025

May birdsong

I wish I could recognise the songs of more birds in the countryside around us. We have so many. A problem is that most of the birds we can hear are too small to see amongst all the foliage of the trees.

Yes I can do the larks – alouettes – climbing, singing higher and higher in the sky above our hayfield. I truly exult in that song. We have robins; turtle doves and swallows; hoopoes all of whose songs I know. Oh, and yes of course, a cuckoo. I am sorry to say, though, that as I type this there is song from many more birds, but few more that I can name.

And then as twilight descends there are nightingales. I had to be told by Lucie that that was a nightingale’s song. I had no idea till here, a couple of years ago, that what I was hearing – as, no doubt I shall this evening – was a nightingale seeking, or trying to impress, his mate.

1 May 2025

A Burgundy diary – 30 November 2024

Autun prison, Jeremy Bentham and a panoptique

I was talking with an English friend who lives locally about Jeremy Bentham. I’ll explain why later. To me Jeremy Bentham is a law reformer and early proponent of utilitarianism. ‘Jeremy Bentham?’ she said. ‘You mean the bloke who designed Autun prison, the panoptique?’  

‘No,’ I said. ‘The eighteenth-century philosopher.’

We were both right in a way, and we were both talking about the same person. I knew that Autun had had a circular prison alongside its former palais de justice (below is the best photo I could take as the prison appears now: the former palais de justice is to its right in the picture). Neither building are prison or palais de justice anymore; but the prison abuts onto the museum in Autun (Musée Rolin, one of whose towers is in the photo above). It is part of a project substantially to enlarge the museum and to develop museum, former prison and palais de justice into a new museum.

The panopticon theory developed by Bentham came from the idea that people – for example prisoners – can be controlled when they believe themselves to be under constant surveillance even if no one is watching. I shall explain how Bentham applied this theory to judges shortly. A central guard tower in a circular prison is all that the prisoners can see. This may encourage prisoners to believe they are being watched, or guarded, even though they cannot see the guards.

The circular prison in Autun was built in 1855-1856 by the departmental architect André Berthier. It was one of the first prisons to adopt Bentham’s panoptique idea originally designed by him in around 1791. The name comes from the idea that in a panopticon the guard can see all around.

And applied to judges, which is what I was talking to Jenny about? They too need guarding, or supervision in some way. Writing of his concern that courts be kept open to the public, Jeremy Bentham said: ‘Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial.’ The question then is ‘custodiet ipsos custodes’ – who will guard the guards (or judge the judges) themselves, and how? Questions for another day…

Guarding judges in the English and Welsh High Court (in Bentham’s eighteenth century and onwards) and prisoners in nineteenth century in Autun, are a long way apart; but they coalesce in a way I had not expected at all in Jeremy Bentham (1748-1832).

David Burrows

30 November 2024

A Burgundy diary – 24 November 2024

Autumn to winter and back in a week

On Thursday early morning the temperature dropped to minus four degrees. By lunch time it was snowing. In the evening the snow was slush, soggy for an evening walk. Overnight it froze. I am afraid I thought better of my Friday trip to the market, so I missed my croissant and preparation in an Autun cafe of my writing agenda for the following week. I noted that down on Saturday morning, sans croissant.

And today its balmy autumn again. No need for the wood-burning stove any more. The path should be clear for a walk in the forest this afternoon, though there will be less of the autumn glowing leaves on the trees.

David Burrows