Closed material procedures in children proceedings

Closed material procedures

 

A closed material procedure was defined by Lord Neuberger in Bank Mellat v Her Majesty’s Treasury (No 1) [2013] UKSC 38, [2014] AC 700 (Bank Mellat (No 1)) as:

 

[1] … A closed material procedure involves the production of material which is so confidential and sensitive that it requires the court not only to sit in private, but to sit in a closed hearing (ie a hearing at which the court considers the material and hears submissions about it without one of the parties to the appeal seeing the material or being present), and to contemplate giving a partly closed judgment (ie a judgment part of which will not be seen by one of the parties).

 

In Al Rawi & Ors v The Security Service & Ors [2011] UKSC 34 [2012] AC 531 the Supreme Court held that the common law would not permit a closed material procedure. Such procedures can only be set up by express statutory provision (the Bank Mellat case proceeded under Counter-Terrorism Act 2008). European Convention 1950 and the right to a fair trial does not prevent closed material procedures, provided strict conditions are met.  Lord Neuberger summarised those conditions in Bank Mellat (No 1) as follows:

 

[5] …Those conditions, in very summary terms, would normally include the court being satisfied that (i) for weighty reasons, such as national security, the material has to be kept secret from the excluded party as well as the public, (ii) a hearing to determine the issues between the parties could not fairly go ahead without the material being shown to the judge, (iii) a summary, which is both sufficiently informative and as full as the circumstances permit, of all the closed material has been made available to the excluded party, and (iv) an independent advocate, who has seen all the material, is able to challenge the need for the procedure, and, if there is a closed hearing, is present throughout to test the accuracy and relevance of the material and to make submissions about it.

 

In Re A (Sexual Abuse: Disclosure) [2012] UKSC 60, [2013] 1 FLR 948 (a vulnerable young adult witness confronted by an argument that her confidentiality should be breached so she could give evidence against a father in children proceedings) Lady Hale, confronted with a suggestion that closed material could be considered in that case, answered:

 

[34] It is in this context that it has been suggested that the court might adopt some form of closed material procedure, in which full disclosure was made to a special advocate appointed to protect the parents’ interests, but not to the father himself. It faces two formidable difficulties. The first is that this Court has held that there is no power to adopt such a procedure in ordinary civil proceedings: Al Rawi v Security Service (JUSTICE intervening) [2011] UKSC 34, [2012] 1 AC 531…. It is arguable that a greater latitude may be allowed in children cases where the child’s welfare is the court’s paramount concern. But the arguments against making such an inroad into the normal principles of a fair trial remain very powerful….

 

Secondly, she went on to say, there are difficulties inherent in the procedures themselves:

 

[34] … The essential requirement of any fair procedure is that the person who stands to lose his rights has an opportunity effectively to challenge the essence of the case against him. There may be cases in which this can be done by offering him a ‘gist’ of the allegations and appointing a special advocate to scrutinise the whole of the material deployed against him. In a case such as this, however, it is not possible effectively to challenge the allegations without knowing where, when and how the abuse is alleged to have taken place. From this information it is inevitable that X’s identity will be revealed. Even if it were theoretically possible to devise some form of closed material procedures, therefore, it would not meet the minimum requirements of a fair hearing in this case.

 

Closed material procedures in children proceedings

 

So where does that leave any proposal that there might be scope – albeit very limited – for closed material procedures in children proceedings? Al Rawi provides the starting point for consideration of any such procedure in civil proceedings. The case arose from a preliminary issue in a damages claim raised in proceedings where the claimants alleged that the security services had been complicit in the detention and ill-treatment of them by foreign authorities at various locations including Guantanamo Bay. The pleaded causes of action included false imprisonment, trespass to the person, conspiracy to injure, torture and breach of the Human Rights Act 1998. The state filed an open defence admitting certain uncontroversial facts, but also a closed defence which referred to material they wanted the court to consider; but to which they wanted to deny access to the claimants.

 

The Security Service, the defendants, said that the disclosure question could not be dealt with on ordinary public interest immunity grounds. They said there was so much material: this might take 3 years just to decide in respect of which material PII should be claimed. The judge said a closed material procedure was permitted. The Court of Appeal disagreed; and the Supreme Court disallowed the Security Service’s appeal from that decision (with Lord Clarke dissenting). In that case, and as a general rule in civil proceedings it was held that closed material procedures should not be permitted in the absence of statutory provision.

 

Use of closed material procedures in civil proceedings

 

Closed material procedures have been used to protect national security (eg cases cited so far in this article) and in proceedings before the Information Commissioner where sensitive information is required to be protected (Browning v The Information Commissioner & Anor [2014] EWCA Civ 1050, [2014] 1 WLR 3848). In a very narrow range of exceptional circumstances they may be ordered in children proceedings (and eg subject to the conditions referred to by Lord Neuberger in Bank Mellat (No 1) at [5] (above)). The starting point must always be to protect a party’s right to an open trial with all material available to him or her which will be considered by the court; and subject to rules of natural justice.

 

Lord Dyson, who gave the main judgment for those who dismissed the appeal in Al Rawi, summarised the open trial principles. First, he said, trials must be in public:

 

[10] There are certain features of a common law trial which are fundamental to our system of justice (both criminal and civil). First, subject to certain established and limited exceptions, trials should be conducted and judgments given in public. The importance of the open justice principle has been emphasised many times: see, for example, R v Sussex Justices, Ex p McCarthy [1924] 1 KB 256, at p 259, per Lord Hewart CJ, Attorney General v Leveller Magazine Ltd [1979] AC 440, at pp 449H-450B, per Lord Diplock, and recently R (Mohamed) v Secretary of State for Foreign and Commonwealth Affairs (No 2) (Guardian News and Media Ltd intervening) [2011] QB 218, paras 38-39, per Lord Judge CJ.

 

Certain basic principles of natural justice must be observed by the courts. He cites particular aspects of this, including:

 

[12]… A party has a right to know the case against him and the evidence on which it is based. [and] he is entitled to have the opportunity to respond to any such evidence and to any submissions made by the other side. The other side may not advance contentions or adduce evidence of which he is kept in ignorance….

[13] … The parties should be given an opportunity to call their own witnesses and to cross-examine the opposing witnesses. As was said by the High Court of Australia in Lee v The Queen (1998) 195 CLR 594, at para 32: “Confrontation and the opportunity for cross-examination is of central significance to the common law adversarial system of trial.”

 

Lord Dyson was concerned to emphasise these points – none of them ‘controversial, he thought – because a closed material procedure, unlike public interest immunity, diverged from open justice and natural justice principles. He centred Parliament’s response to this on the prevention from terrorism legislation so far made:

 

[14] In recent years, both the courts and Parliament have been exercised by the problem of how to balance (i) the interest that we all have in maintaining a fair system of justice which, so far as possible, respects the essential elements of these principles and (ii) the interest that we also all have in the protection of national security, the international relations of the United Kingdom and the prevention, detection and prosecution of crime. Thus, Parliament has reacted to the threat of terrorism to our national security interests by introducing a form of closed material procedure (with the use of special advocates) for use in certain categories of case, for example, by enacting the Prevention of Terrorism Act 2005 and the Counter-Terrorism Act 2008.

 

Thus a closed material procedure must be distinguished from public interest immunity. With closed material procedures the judge and certain parties (and perhaps special advocates for the parties kept out of the material) will see the sensitive material; but the excluded parties themselves will not. By contrast, in the case of public interest immunity only the party who has the documents has access to the information they contain. This is denied to other parties and to the court. The court therefore decides the case with only a part of the relevant evidence.

 

Civil proceedings

 

It is not in question that proceedings in relation to children are one of the exceptions to the open justice principle (Scott & Anor v Scott [1913] UKHL 2, [1913] AC 417; Administration of Justice Act 1960 s 12(1) etc). Hearings will almost invariably be in private even though an anonymised version of the judgement may be published. Closed material procedures go much further than privacy. Lord Dyson again (citing Lord Bingham):

 

[27] It is one thing to say that the open justice principle may be abrogated if justice cannot otherwise be achieved. As Lord Bingham of Cornhill said in R v Davis [2008] UKHL 36, [2008] 1 AC 1128 at para 28, the rights of a litigating party are the same whether a trial is conducted in camera or in open court and whether or not the course of the proceedings may be reported in the media. It is quite a different matter to say that the court may sanction a departure from the natural justice principle (including the right to be present at and participate in the whole or part of a trial). Scott v Scott is no authority for such a proposition.

 

So, the issues at the heart of the appeal were:

 

[27] … How can such a step ever satisfy the requirements of justice? And if the court does have the power to deny a litigant this fundamental common law right, in what circumstances is it appropriate to exercise it? These are the questions that lie at the heart of this appeal.

 

And for Lord Dyson his conclusion, and his dismissal of the Government appeal (with varying degrees of enthusiasm all of the eight Supreme Court justices dismissed the appeal, save for Lord Clarke), was to refer back to in R v Davis [2008] UKHL 36, [2008] 1 AC 1128 and to hold:

 

[35] I return to the questions that lie at the heart of this appeal. In my view, the analogy with Davis is compelling. As I have said, the fact that Davis was a criminal case is not material. The issues considered were of application to trials generally. It decided that, subject to certain exceptions and statutory qualifications, the right to be confronted by one’s accusers is such a fundamental element of the common law right to a fair trial that the court cannot abrogate it in the exercise of its inherent power. Only Parliament can do that. The closed material procedure excludes a party from the closed part of the trial. He cannot see the witnesses who speak in that part of the trial; nor can he see closed documents; he cannot hear or read the closed evidence or the submissions made in the closed hearing; and finally he cannot see the judge delivering the closed judgment nor can he read it.

 

Exceptions to rule refusing closed material procedure

 

As a coda to his judgment Lord Dyson dealt with exceptions to his normal rule as to disallowance of closed material procedures. In agreement, he said, with the minority view of Lord Clarke, he said:

 

[63] … there are certain classes of case where a departure from the normal rule may be justified for special reasons in the interests of justice. Thus as Baroness Hale of Richmond said inSecretary of State for the Home Department v MB [2007] UKHL 46, [2008] 1 AC 440 at para 58:

‘If….the whole object of the proceedings is to protect and promote the best interests of a child, there may be exceptional circumstances in which disclosure of some of the evidence would be so detrimental to the child’s welfare as to defeat the object of the exercise.’

Wardship proceedings are an obvious example of such a case: see In re K (Infants) [1965] AC 201, per Lord Devlin at p 241A. Cases involving children raise different considerations from those which arise in ordinary civil litigation. That is because the interests of children are paramount. It follows that where the interests of the child are served, so too are the interests of justice.

 

The same applies to commercial interests, where disclosure might ‘render the proceedings futile’ (para [64]). However, he went on:

 

[65] In my view, the children and confidentiality cases cannot be relied on to justify creating a rule of general application in ordinary civil litigation. These are two narrowly defined categories of case where a departure from the usual rules of procedure has been held to be justified….

 

Discretion in wardship to restrict disclosure to a party

 

In re K (Infants) [1965] AC 201 the House of Lords considered whether, in wardship proceedings, they were entitled to deny to a mother access to a medical report prepared for the Official Solicitor. They held that in his/her discretion a judge was entitled to deny access to information, in the interests of a child. Lord Devlin started from ‘the ordinary principles of a judicial inquiry’ (per Upjohn LJ in the Court of Appeal):

 

They include [said Lord Devlin] the rules that all justice shall be done openly and that it shall be done only after a fair hearing; and also the rule that is in point here, namely, that judgment shall be given only upon evidence that is made known to all parties. Some of these principles are so fundamental that they must be observed by everyone who is acting judicially, whether he is sitting in a court of law or not; and these are called the principles of natural justice. The rule in point here is undoubtedly one of those.

 

Lord Devlin continued (at 240 to 241):

 

This is the essence of the matter. Where the judge sits as an arbiter between two parties, he need consider only what they put before him. If one or other omits something material and suffers from the omission, he must blame himself and not the judge. Where the judge sits purely as an arbiter and relies on the parties for his information, the parties have a correlative right that he should act only on information which they have had the opportunity of testing. Where the judge is not sitting purely, or even primarily, as an arbiter but is charged with the paramount duty of protecting the interests of one outside the conflict, a rule that is designed for just arbitrament cannot in all circumstances prevail.

 

Where the interests of a child requires it, the position remains as it was in 1965: that the court can restrict disclosure to a party. A form of closed material procedure can operate. But how far?

 

Closed material procedures and a child’s welfare: how far?

 

Lord Mance, with whom Lady Hale agreed, made the point that once the principle of exceptions – which to a restricted degree he accepted – then it could not realistically be said that the court lacked jurisdiction.

 

[114] … once it is accepted, as Lord Dyson does (para 63), that “there are certain classes of case where a departure from the normal rule may be justified for special reasons in the interests of justice”, for example wardship and other cases where the interests of children are paramount, that to my mind also makes it difficult to suggest that the court lacks jurisdiction in a strict sense to vary the basic principles of open and natural justice mentioned in para 107 above.

 

Jurisdiction, he said, is one thing. Exercise of it is quite another. ‘[115] … Principles as important as open and natural justice ought to be regarded as sacrosanct, as long as they themselves do not lead to a denial of justice.’

 

Generally the courts should only permit closed material procedures where Parliament sanctions it – as with Justice and Security Act 2013. Otherwise in civil proceedings such procedures will only very rarely be justified; and those circumstances include children proceedings.

 

Justice and Security Act 2013

 

Justice and Security Act 2013 (JSA 2013) has nothing to do with family law; but the procedures under are looked at to the extent that they may be treated as analogous to proceedings in children proceedings. The exceptions from the right of a person to a fair trial in open court under European Convention 1950 Art 6 is as follows:

 

(1) … the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

 

JSA 2013 deals with national security. Public order and national security and ‘the interests of juveniles [(ie the welfare of children)] or the protection of the private life of the parties’ are bracketed in Art 6(1) as justifying exclusion of public and press. There seems to be no reason in underlying principle why similar criteria, at least in terms of evidence and procedure, should not be applied, in the very limited circumstances where it may be demanded, in children proceedings as in proceedings which concern national security.

Fundamental principles: children being heard in family proceedings

Child’s opportunity to be heard: a fundamental principle

 

In Re D (A Child) (International Recognition) [2016] EWCA Civ 12[2016] 1 WLR 2469 the Court of Appeal considered whether they should recognise a Romanian appeal court’s judgment as to custody of a seven-year old child. They refused to do so. The Romanian court, they said, had not considered whether they should provide an opportunity to be heard by the court (as is required by Council Regulation (EC) No. 2201/2003: ‘BIIR’ Art 23(b): cited and explained below).

 

The reasoning for the Art 23(b) outcome in the Court of Appeal raises questions as to:

 

  • What is meant by an opportunity for the child to be heard by the court;
  • What ‘fundamental principles of procedure’ (see Art 23(b)) are engaged in this process; and
  • How are any such ‘fundamental principles’ applied in English law and practice?

 

This note is concerned only with the child’s opportunity to express a view to the court (see Guidelines for judges meeting children who are subject to family proceedings of 2010, [2010] 2 FLR 1872: https://fnf.org.uk/phocadownload/downloads/guidelines_for_judges_meeting_children.pdf) as distinct from the quite separate subject of children giving evidence in family proceedings. The importance of children’s views being heard – as opposed to necessarily followed – was stressed by Lady Hale in the Supreme Court in Re W (Children) (Abuse: Oral Evidence) [2010] UKSC 12, [2010] 1 FLR 1485).

 

A jurisdiction question

 

But first, a jurisdiction point arose: could the Supreme Court deal with an appeal from the Court of Appeal on recognition. For reasons which do not go to the question of children being heard by the court, the Supreme Court held that they had no jurisdiction to consider an appeal (Re D (A Child) [2016] UKSC 34):

 

[10] … This court is solely concerned with whether we have any jurisdiction to entertain an appeal against the decision of the Court of Appeal that the Romanian order should not be registered and enforced in this country….

[29] [The father] faces the serious difficulty that article 34 clearly states that the decision on appeal may “only” be contested by the notified proceedings. On the face of it, therefore, as [the Ministry of Justice asserts], if there were no relevant notification, there would be no possibility of further challenge.

 

They therefore struck out the appeal (Lady Hale, with whom all other SCJJ agreed, gave the only judgment) as to notification given by the British Government to the European Commission pursuant to Article 34 of Brussels II Revised (Council Regulation (EC) No. 2201/2003: ‘BIIR’). The case turned on the extent to which the child’s views had been considered in the Romanian court, as required by BIIR.

 

In so stating Lady Hale confirmed – as she was bound to do – that the law remained as it was before the Court of Appeal (Re D (A Child) (International Recognition) (above) where, she said, the Court of Appeal had held:

 

[9] The question of whether and how the child’s voice was to be heard in the proceedings was a separate question from the weight to be given to his wishes and feelings:

‘[44]… the rule of 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 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) [of the Children Act 1989] like that in article 12(1) [of the United Nations Convention on the Rights of the Child 1989] relates to the weight to be put upon a child’s wishes and feelings, not their participation.’

 

Background facts

 

The child, known in the Court of Appeal as ‘David’ (born 8 November 2006), is habitually resident in this country, but the parents chose to litigate about his future in Romania. The father issued divorce and custody proceedings there in November 2007 and after a long series of hearings the Bucharest Court of Appeal decide in November 2013 that David should live with the father, on the basis that he could provide ‘the best moral and material conditions’. In February 2014, the father applied for the recognition and enforcement of this order by the English court. In May 2014 Peter Jackson J made David a party to the enforcement proceedings (Re D (Recognition and Enforcement of Romanian Order) (sub nom MD v AA & Anor [2014] EWHC 2756 (Fam)[2015] 1 FLR 1272). His concerns included a comment from his own earlier judgment where he had ordered separate representation for David (cited at para [33] of [2014] EWHC 2756):

 

[16] I have regard to the guidance contained in Practice Direction 16A, paragraph 7.2, as guidance not as a directive, and there I note that one reason for justifying the unusual course of appointing a guardian is that the child has a standpoint or interest inconsistent with, or incapable of being represented by any of the adult parties. I do not see, at the moment, where David’s interest in this application is being represented.

 

Registration of an order under BIIR is an administrative step, which ‘requires a judicial act’ (Re S (Foreign Contact Order) [2009] EWCA Civ 993[2010] 1 FLR 982 para [12]). It was this administrative act which, in effect, was the application before Peter Jackson J. He refused this under Art 23(b) of BIIR (one of the seven grounds under that Article), which says:

 

Article 23 Grounds of non-recognition for judgments relating to parental responsibility A judgment relating to parental responsibility shall not be recognised:… (b) if it was given, except in case of urgency, without the child having been given an opportunity to be heard, in violation of fundamental principles of procedure of the Member State in which recognition is sought;..

 

The court held that recognition failed under Art 23(b), not because the Romanian Court failed to provide the opportunity to be heard, but because the court there did not consider ‘whether to give [him] an opportunity to be heard’ (para [108] below). Briggs LJ summarised this as:

 

[107] To my mind the violation did not lie simply in not giving him that opportunity….  Here, the violation lay in failing to give that basic question any consideration at all.

[108] Article 23 contains exceptions to the core principle of mutual recognition which lies at the heart of BIIR.  It must therefore be narrowly construed. But I do regard the failure even to consider whether to give David an opportunity to be heard as fully deserving being described as a violation of a fundamental principle of the procedure of our courts….

 

It is what the Court of Appeal said of, first, what was meant by the child’s ‘opportunity to be heard’ and of it being a ‘fundamental principles of procedure’ of a Member state; and secondly, as to the position of that fundamental principle in English law and procedure that this note is concerned.

 

Child’s Art 23(b) ‘opportunity to be heard’

 

The law remains as it was explained by the Court of Appeal; though it must be recalled that the views of Lady Hale (first as writer then as Law Commissioner, Brenda Hoggett and now as a judge) has been a central part of the debate on that ‘very large question’ (para [10] of her judgment in Re D cited above), including very recently (Listening to children: are we nearly there yet?: Lady Hale to the Association of Lawyers for Children Annual Conference, Manchester 20 November 2015 (http://alc.org.uk/uploads/Keynote_speech_2015.pdf).

 

Ryder LJ (with whom Briggs and Moore-Bick agreed) gave the main judgment. He started his review of the position under At 23(b): that there could be no recognition, and therefore no enforcement, if there has been violation of a ‘fundamental principle’:

 

[27] It is to be noted from the terms of article 23(b) that if the judge is satisfied that there has been a violation of a fundamental principle of procedure, then there is no discretion in the consequence: the order shall not be recognised and accordingly cannot be enforced under the Regulation.  In my judgment nothing turns on any distinction that there may be between a violation and a breach.  If the question is fundamental and it was not asked by the court, then that would be a sufficient failure to comply.

 

So what is an opportunity to be heard? An alternative term is ‘participation’. In the Family Procedure Rules 2010 amendments proposed by the Vulnerable Witnesses and Children Working Group – the ‘Amendment X Regulations 2015’ (https://consult.justice.gov.uk/digital-communications/draft-amendments-to-family-procedure-rules/supporting_documents/annexachildrenvulnerablewitnessesfprcdraftrule.pdf), which are likely (in some form) to come into operation in Autumn 2016 – puts the matter thus:

 

3A.2 The court’s duty to consider whether a child should participate in proceedings

(1) The court must consider whether a child should participate in the proceedings by reason of meeting one of the conditions set out in paragraphs 2(a), (b) or (c) and if so, make a direction that the child should participate.

(2) The conditions are that the child is— (a) a party to the proceedings; (b) the subject of the proceedings but not a party to them; or (c) otherwise affected by matters in the proceedings.

 

‘Fundamental principles’: crying out to be heard

 

A fundamental principle had been breached; and that fundamental principle was one which increasingly must run through all English child law. It starts, Ryder LJ stressed, with Children Act 1989, and especially with the centrally important CA 1989 s 1(3)(a). This must be applied to the particular child in ‘in context’, that is according to the child’s age at the time the consideration takes place (in this case, before Peter Jackson J, when David was eight).

 

Under s 1(3)(a) when making a decision about a child future, the court must consider (‘shall have regard to’) a number of factors, including the well-known:

 

(a) ascertainable wishes and feelings of the child concerned (considered in the light of [the child’s] age and understanding

 

This, said Ryder LJ (at para [38]), was a mandatory provision: ‘the parents cannot seek to avoid it’.[1] He refused to accept that s 1(3)(a) was not a statement of fundamental principle. In support of that rejection he cited Lady Hale in Re D (A Child) [2006] UKHL 51 sub nom Re D (Abduction: Rights of Custody) [2007] 1 FLR 961 at paras [57] to [62], and in particular:

 

[57] But 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.

 

Practice of English courts recognises this ‘fundamental principle of procedure’ said Ryder LJ:

 

[40] Far from section 1(3)(a) CA 1989 being merely a checklist factor that is designed to ensure comprehensive evaluation of a welfare question, it is plainly an example of domestic legislation giving force to a fundamental principle of procedure. The same principle is to be found in article 11.2 BIIR (using the European language for the same concept: “it shall be ensured that the child is given the opportunity to be heard during the proceedings”).

 

And once the child was of an age to have a view Art 23(b) demands that he or she has an opportunity to be heard; and it is clear beyond doubt that this is the law in relation to any children proceedings in England and Wales after Re D (A Child) (International Recognition) [2016] EWCA Civ 12[2016] 1 WLR 2469. Briggs LJ delivered a short judgment concurring with Ryder LJ, which included:

 

[108] … Although some might regard the age of seven as lying near the borderline above which the giving of such an opportunity might be regarded as routine, the very large implications for [David] of the decision sought by his father, namely a complete change in his main carer and a move to a country in which he had not lived since very soon after his birth, cried out for consideration of the question whether he should be heard, all the more so since the mother, who might have been supposed to be likely to put the case for preserving the status quo, appeared to be taking no part in the appeal.

 

Participation of the child in proceedings

 

Participation of the child in our domestic proceedings was the subject of a growing jurisprudence, recalled Ryder LJ. It was specifically highlighted in Re D (A Child) (above), by Lady Hale, and by the Supreme Court in ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4, [2011] 1 FLR 2170. These dicta were brought together by Sir James Munby P in Cambra v Jones (Contempt Proceedings: Child Joined as Party),[2] said Ryder LJ, whom he cited as follows:

 

[18] … If and to the extent that [the child’s] Art 8 rights are engaged, then that will carry with it the important procedural right to be ‘involved in the decision-making process, seen as a whole, to a degree sufficient to provide [her] with the requisite protection of [her] interests’ see W v United Kingdom (1988) 10 EHRR 29, para [64]. However, although that may, it does not necessarily, carry with it the right to be represented or the right to party status: see ZH (Tanzania), paras 34-37…

 

It remains a fundamental principle of English law, in children proceedings in any jurisdiction where CA 1989 s 1(3)(a) is – or may be – engaged, that  child’s participation be considered; and this principle is confirmed and explained by Ryder LJ in Re D (A Child) (International Recognition) (above).

[1] Para [38]

[2] [2014] EWHC 913 (Fam), [2015] 1 FLR 263: proceedings to commit a child’s mother, where the child’s actions were part of the grounds for committal. In the case of a mature teenager the right to participation outweighed the paternalistic judgment of welfare (see Mabon v Mabon [2005] EWCA Civ 634, [2005] 2 FLR 1011. The eldest child’s best interests were served by enabling her to participate in proceedings (whether or not European Convention Art 8 rights were engaged), affected her very profoundly, and in which she was very anxious to participate. Further, the court process might be assisted by the eldest child’s participation as a party rather than as a mere witness.