A version of https://dbfamilylaw.wordpress.com/2017/08/08/how-real-are-a-childs-rights-to-be-heard/ with references
A child’s rights to express a view
UN Convention on the Rights of the Child 1989 Art 12 states that signatories must give children who are capable of forming their own views ‘the right to express those views’. A child must be given an opportunity to do this in ‘all matters affecting the child’ either through ‘a representative or an appropriate body’. Charter of Fundamental Rights of the European Union (2000/C 364/01) Art 24.1 says much the same thing.
This article asks how these rights are recognised in English law. The short answer is hardly at all; or not in any real way if the child does not find out about that child’s rights. If the child does find out or – in court proceedings – someone tells the child, it is very much a matter for the individual judge whether the child manages to express a view. As English law – as opposed to international rights laws – now stands, the right to express a view is not anywhere near as clear as Art 12 implies.
If a child wishes to express a view on the case and finds out about that right, the law on how to do so is a mess (described by one Court of Appeal judge as of ‘complexity’ Re W (A Child) (Care Proceedings: Child’s Representation) Practice Note  EWCA Civ 1051,  1 WLR 1027 at §); and mostly dotted around Children Act 1989 (CA 1989) and Family Procedure Rules 2010 (FPR 2010) Pt 16. And if a child wants legal aid, different rules and definitions apply so as to make the law more confusing still.
This is a truly disturbing state of affairs, given that – as the rules are drafted – it is intended that a child should be able to make her or his own application (FPR 2010 r 16.6); and yet experienced family lawyers (as the Re W case (above) shows) can be perplexed by the law.
UN Convention rights
The UN Convention Art 12 says the following:
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.
The EU Charter at Art 24.1 says that ‘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.’
As can be seen, both Articles place a positive duty on states to take children’s views into consideration; and to take steps to ensure this is done. So how is this dealt with in English courts where a child is of ‘age and maturity’ (or Gillick-competent, after the House of Lords case of Gillick v West Norfolk and Wisbech AHA  UKHL 7,  1 AC 112,  1 FLR 224, which said that in matters of confidentiality and views a child of ‘intelligence and understanding’ must be listened to)? The legal term ‘child’ is used here as of anyone under 18 (CA 1989 s 105(1)); though the extent to which that ‘child’s’ views are considered will depend on the child’s maturity and the issue with which the court is concerned.
Mature child in court proceedings
This article is concerned with children in court proceedings, which are of five main types:
- between a child’s family and a local authority who asks the court to find that the child is suffering ‘significant harm’ (care or ‘public law’ proceedings: CA 1989 Pts 4 and 5);
- between a child’s parents (eg as to with which parent a child is to live or how much contact each parent is to have) (‘private law’ proceedings: CA 1989 s 8);
- where a child wishes to make the child’s own private law application (CA 1989 s 10(8));
- where a child wishes to be joined as a party in existing private law proceedings and to have something to say to the court; and
- proceedings where a child has been brought to the United Kingdom by a parent and the other says the child has been abducted.
Each of these types of case has different court rules and legal aid definitions (legal aid will be left till a later article).
(1) Public law proceedings
Mostly application of the rules in public law proceedings is quite clear. The child has a children’s guardian (CA 1989 s 41) and automatic legal aid. The court appoints a solicitor (or the mature child choses one: CA 1989 s 41(3)(a)). If the child disagrees with the view of the children’s guardian, she or he instructs the solicitor direct. The solicitor must act on the child’s instructions (FPR 2010 r 16.29(2)). Even that is not always clear to judges and lawyers as the Re W case (above showed). And I think the Court of Appeal in that case got the distinction between ‘specified proceedings’ (in Children Act 1989 s 41) and ‘special Children Act 1989 cases’ and ‘public law children cases’ for legal aid muddled up (see separate article).
(2) Private law proceedings: parents’ application
Where one parent applies to a court for an order (a child arrangements order) for their child, and that child is of ‘age and understanding’ (which the Court of Appeal has said could be as young as 7: Re D (A Child) (International Recognition)  EWCA Civ 12,  1 WLR 2469,  2 FLR 347) that child has rights under Arts 12 and 24.1; yet in practice it is a matter of hit-or-miss as to whether the court (the judge or someone else in the court administration) tells the child about this. It is likely only to arise if there is a contest, and the court appoints a court officer (‘CAFCASS’) to see the child and report to the court.
Yet, as can be seen from Art 12 (above), the child has a right ‘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’. This is not a matter for the judge to decide according to whim. Surely it means that in every case a child’s maturity must be assessed – even if only quite briefly – and that child be asked if they want to express a view? That does not mean the view will necessarily be followed (Re D (Abduction: Rights of Custody)  UKHL 51,  1 FLR 961); but it must be a factor included amongst things considered by the court before a decision is made.
(3) Child’s private law application
A child has the right, if of ‘sufficient understanding’ (CA 1989 s 10(8)) to instruct a lawyer and to make an application on her or his own behalf. This is dealt with under separate court rules, which deal both with how a child deals with the case through a solicitor or alone (FPR 2010 r 16.6). Legal aid may be available to the child in this type of application and the next (4).
(4) Child joining in proceedings
Similar principles apply where a mature child wishes to be ‘joined’ (FPR 2010 r 12.12(2)(c)), and have a say, in a parents proceedings. A CAFCASS officer may have been appointed but the child may not agree with the officer’s views. In that case, as a highly respected family judge has said, it is essential that a child feels their independent view has been heard by the court (Mabon v Mabon  EWCA Civ 634,  Fam 366,  2 FLR 1011).
The child may be able to have a lawyer on legal aid (based on the child’s financial circumstances).
(5) Child abduction proceedings
Special rules, some set out in Convention on the Civil Aspects of International Child Abduction 1980 (‘Hague Convention’) itself, require the courts by one means or another to take account of a child’s views before making an order. In practice there are specialist CAFCASS officers in London (where these proceedings are heard) who discuss a child’s views with her or him.
The child may be formally joined in the parents’ proceedings (and if so have a solicitor on legal aid); though separate joining in the proceedings by no means guaranteed.
Court procedure varies for each of the above categories. There is no clear definition of when or how a child’s views shall be considered. There is no clear definition of when a child must be told what her or his rights are and how this is to be done.
The President of the Family Division set up a working group over three years ago: the Vulnerable Witnesses and Children Working Group. The group has drafted new court rules (now over two years old) to answer some of the concerns in this article. The draft does nothing to clarify the procedures which already operate; nor to sort out the complex legal aid provisions which apply to children.
As far as I know there is no clear document which explains to mature children what their rights are when they or their parents are involved in court proceedings about them. Still less does the working group deal with how it expects children to be informed of their rights under the UN Convention and how children’s maturity should be considered by the court. Only then will the judge know whether a child’s views under Art 12 should be ‘expressed’ to the court; and only then can the judge start to consider how this should be done.