Children and EU Charter of Fundamental Rights: rights to be lost?
This article looks at children’s rights in legal proceedings which will go with EU withdrawal; and which can only be replaced if MPs specifically take steps to create new law. If I were an English child I would want more protection for my rights from the EU withdrawal repeal bill than is promised by English law as it now stands.
It is not always well-known that EU has its own human rights charter: Charter of Fundamental Rights of the European Union (2000/C 364/01) , much of which is modelled on the Convention for the Protection of Human Rights and Fundamental Freedoms 1950. In certain important respects it develops the European Convention 1950, especially in the field of children’s rights (which have no direct mention in the 1950 Convention).
The Charter will go with EU withdrawal; so will the children’s rights which it protects be replicated in English law – so far as English law is now different? In certain crucial respects it is fundamentally different as will be explained.
Under the heading ‘The rights of the child’ Art 24 of the Charter provides:
1 Children shall have the right to such protection and care as is necessary for their well-being. They may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity.
2 In all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration.
3 Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests.
Children’s views, according to age and maturity
This article looks at the meaning and effect of Art 24.1: ‘They may express their views freely. Such views shall be taken into consideration… in accordance with their age and maturity.’
United Nations Convention on the Rights of the Child 1989 Art 12 – by which UK will still be bound, so far its provisions are enforceable – is in similar terms to Art 24 of the Charter as to a child’s right to be heard in ‘judicial proceedings’: that is ‘to express… views freely’; and for them to be ‘given due weight [according to the child’s] age and maturity’ (Art 12.1).
In Re D (A Child) (International Recognition)  EWCA Civ 12,  2 FLR 347 Art 24 was taken into consideration by the Court of Appeal. The question of a child being heard was raised to a ‘fundamental principle’ of English child law. In that case the Court of Appeal considered whether a Romanian court order should be enforced in UK where a child was not given ‘an opportunity to be heard’ on parental responsibility (ie in where he was to live). The child (aged 7 when the decision appealled against was made) had not been given this opportunity in Romania, as required by Brussels IIA Art 23(b), so his father could not enforce the order in this country. (Incidentally, the decision depended on reciprocal arrangements between the English and Romanian courts. This cannot be expected to survive Brexit. If families break up and go to different EU countries, with one of them being in the UK, family litigation will increase.)
‘Right to participate’ in proceedings about the child
In Re D Ryder LJ in the Court of Appeal treated the child as having ‘the right … to participate in the process that is about him or her’ (§44); but only because of EU legislation. He started his review of the applicable law from Brussels IIA and its recitals, and set out Art 24 in full (§) which is incorporated into Brussels IIA. Every court must consider a child’s involvement in proceedings according to the context of the case.
In the search for ‘fundamental principles’ Ryder LJ started with Children Act 1989 especially the check-list of factors for considering court-ordered arrangements for children in s 1(3). This provision – which is central to English law on this subject and to this article – seemed radical when made law in 1989. Looked at in the light of EU legislation it has a somewhat shop-worn and conservative air. Section 1(3)(a) says:
(3) [When the court is considering making an order about a child it] shall have regard in particular to –
(a)the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
This, said the judge in Re D , was a ‘fundamental principle’ which no ‘parent can seek to avoid’ (§38). He concluded (emphasis added):
 That is rightly an acceptance that 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 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 s 1(3)(a) of the CA 1989 like that in Art 12(1) of the UNCRC 1989 relates to the weight to be put upon a child’s wishes and feelings, not their participation.
In practice the questions of whether a child should meet a judge state a view to him or her is left to non-statutory Guidelines – Guidelines on Judges Meeting Children who are subject to Family Proceedings April 2010  2 FLR 1872 – issued by an unofficial non-statutory body (albeit approved in case-law). It is now seven years old and states its purpose as being ‘to encourage judges to enable children to feel more involved in proceedings which affect them and to ensure judges have understood their wishes and feelings’. There is no reference to any rights for children; still less to either Art 24 (or to the UN Charter).
Child’s right to be heard: nothing to be ‘given’
If I were an English child I would want more protection for my rights from the EU withdrawal repeal bill than this. This is because of:
- Children Act 1989 s 1(3) gives the court only an option to consider my views;
- The Guidelines give me no reassurance that English judges realise that I have rights (if I want to express my views); not that they have the option whether or not to receive my views; and I would prefer that those rights, in statute, be referred to in statutory guidelines, not the informal 2010 Guidelines.
- I am afraid my worries would not be made less by a speech of a leading family judge King LJ ‘Giving children a voice in litigation: are we there yet’ , a speech given in November 2016. If a child has rights, there is nothing for judges to ‘give’. Theya re entitled to have their voice heard say Art 24 and Art 12; but this is not what English law on its own says.
As to a child’s views and their weight in children proceedings, in Re D (Abduction: Rights of Custody)  1 FLR 961 the House of Lords was dealing with an 8 year old. Of that child’s views and his entitlement to have his point of view heard (which may be quite distinct from that of the person looking him) Lady Hale said:
… Until the case reached this House, no defence based on the child’s objections was raised…. 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…. 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.
All of this – from Art 24 to Lady Hale’s views in Re D  speak for a child’s right – emphasis on ‘right’ – to be heard. Just as the English judiciary have done so far, the wording of Children Act 1989 s 1(3)(a), as I read it, comes well short of a right. As the ‘guidelines’ say, it is up to the judge to decide: no question of a child’s ‘right’. By contrast the Charter of Fundamental Rights of the European Union (2000/C 364/01) Art 24 and Council Regulation (EC) No 2201/2003 of 27 November 2003 Concerning Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters and in Matters of Parental Responsibility (‘Brussels IIA’) eg Art 23 each guarantee rights and participation. That will go with EU withdrawal unless it is reproduced in UK legislation. (And this is before we look at what will be lost to children and others involved with EU withdrawal with the loss of the reciprocal arrangements in Brussels IIA.)