Hearing the child in family courts: legal aid and recent cases

A child’s views according to age and maturity

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In ‘Hearing the child in family courts’ I summarised the law in England as to a child’s views being heard in family courts. This included a review of operation of United Nations Convention on the Rights of the Child 1989 Art 12 and Charter of Fundamental Rights of the European Union Art 24. It will be recalled that Art 12 provides (as does Art 24 in similar terms):

 

  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.

 

It is clear that our procedural law deals with it in a muddled way; and, I believe, in a way which is not fair to older children. All children involved in care (‘public law’) proceedings (whatever their age) are automatically made parties (in what are called ‘specified proceedings’: Children Act 1989 (CA 1989) s 41(6)). This does mean their views will be put before the court since they will be represented by a children’s guardian who must represent their ‘best interests’ not necessarily what they want. The muddle this can create can be seen in Re W (A Child) (Care Proceedings: Child’s Representation) Practice Note [2016] EWCA Civ 1051, [2017] 1 WLR 1027 where, I think (see preface to my Children’s Views and Evidence by David Burrows, Bloomsbury Professional, 2017 https://www.bloomsburyprofessional.com/uk/childrens-views-and-evidence-9781526503176/) even Black LJ (now Lady Black) got the law wrong.

 

It is certainly the case that the term ‘children’s guardian’ has two meanings (see definition under Family Procedure Rules 2010 r 2.3(1)), as between care proceedings (already mentioned) and under FPR 2010 r 16.4 where the children’s guardian acts in the same way as a ‘litigation friend’ in civil proceedings: ie pursuing a case on instructions form or otherwise in the interests the child. If lawyers of the calibre of Lady Black can get it wrong what hope the unrepresented child whose future is being decided by the court?

 

Legal aid

 

It must please be recalled by any judge who considers joining a child, that based only on the child’s own means, they will be entitled to legal aid (Legal Aid Sentencing and Punishment of Offenders Act 2012 Sch 1 para 15) where they are a party. There will be cases where the court will be helped by at least one party having representation. Quite legitimately there are cases which would fall into this category which now are being overlooked by the family courts.

 

Parents and children in care (‘specified’) proceedings have legal aid (regardless of means or the merit of their case); but that is not directly under consideration here.

 

Children’s views and private proceedings

 

The extent to which courts in non-care proceedings take into account children’s views is an extensive subject. Following on from my ‘hearing the child’ post I thought I would briefly analyse the private cases (ie not ‘specified proceedings’) reported over the past few months (September till now) and to see where children’s views appear to have been taken into account. In Re D (A Child) (International Recognition) [2016] EWCA Civ 12, [2016] 1 WLR 2469, [2016] 2 FLR 347 (mentioning in the last post) the Court of Appeal felt that a child of seven, David, should have been given the opportunity – that is, if he wanted it – to be heard; so I have treated seven as the lower age for ‘age and maturity’. Cases which do not include a 7+ year old child have been excluded. I have added a couple of rogue cases – judicial review and Herefordshire – at the end where views may be appropriate.

 

I can only go on what is reported, so if I am wrong – one way or the other – about a child being heard, I can only apologise. I have tended to assume if they are not joined as parties that court is unlikely to hear views; but I realise that may be unfair to the judges. I have merely listed the cases, one-by-one and not tried to make any deductions from the modest sample.

 

I suspect, however, that where children are joined they may not necessarily have their views expressed to the court or be told they can see the judge if they want to; but that will not necessarily be clear from the report.

 

The private law (non-care) cases over the past seven months divide roughly equally into those where 7+ year old children are joined as parties; and those where they were not joined.

 

Children as parties

 

S v S (Relocation) [2017] EWHC 2345 (Fam) (14 September 2017), Peter Jackson J – Order for children (15 and 13, who were separately represented and joined as parties) to live with their father in Switzerland. The children’s solicitor was paid for by the father. The case was characterised by the judge making a substantial order for costs against the father even though his application had ‘succeeded’. Of the difficult role of the child’s solicitor he said:

 

  • As a matter of general principle, parental right yields to the child’s right to make his own decisions when he reaches a sufficient understanding and intelligence to be capable of making up his own mind on the matter requiring decision, Gillick v West Norfolk and Wisbech Area Health Authority[1986] AC 11, Lord Scarman at 186;
  • On familiar principles, a child has an Article 8 right to respect for their privacy in the setting of client/professional information;
  • A child has a right to confidentiality in the same setting; and
  • The entire area of a child’s Article 12 UNCRC right to participation in proceedings concerning them is one that continues to evolve, Re W (A Child) [above], Black LJ at [26] and Re F (Children)[2016] EWCA Civ 546, Sir James Munby P at [41].

 

FE v MR & Ors [2017] EWHC 2298 (Fam) (14 September 2017), Baker J – The children were A (born 14 October 2003) and J born 1 December 2006). The case concerned the Council Regulation (EC) No 2201/2003 on jurisdiction for recognition and enforcement of family court orders (Brussels IIA) Art 15, which enables the court of a member state (a requesting court) to request another to transfer a case from another member state’s court to the requesting court ([26]) in exceptional circumstances and where the requesting court ‘would be better placed to hear the case’ (Art 15.1).

 

A was joined by Holman J in November 2016 and her children’s guardian was to aske J if he wanted to be joined. He was subsequently joined. Both children had full access to an ability for their views to be expressed.

 

N v J (Power to Set Aside Return Order) [2017] EWHC 2752 (Fam) (3 November 2017), MacDonald J – The High Court has jurisdiction (under Family Procedure Rules 2010 r 4.1(6)) to set aside its own orders (ie other than on appeal: Senior Courts Act 1981 s 17) where there has been a material change of circumstances and where to do so ‘goes to the welfare of the child ([69]); though in this case the judge refused to exercise his discretion to set aside.

 

The children G, aged 14, and H, aged 11 were (1) respondents to proceedings under the CA 1989 commenced by their father, and applicants in proceedings under the inherent jurisdiction through their children’s guardian. In the inherent jurisdiction proceedings the mother – with whom the children were living in the US – unsuccessfully asked the judge to set aside a return order.

 

B and C (Change of Names: Parental Responsibility: Evidence) [2017] EWHC 3250 (Fam) (12 December 2017), Cobb J – The children in this case were wards aged 13 and 8, and were represented by a Cafcass children’s guardian. There had been serious violence by their father to children and wife/mother – in Iran; and earlier non-molestation order and CA 1989 proceedings. The wardship proceedings proceeded in the father’s absence after service by email. The judge ordered that the case could continue without F having notice of certain of the evidence. The mother sought and was granted:

  • Absolute restrictions on F’s parental responsibility in respect of the children
  • F not to have any contact
  • F not to come within 100m of where mother is present
  • Mother can change children’s names
  • Injunction orders already made to continue
  • Wardship discharged

 

R (J and L) v London Borough of Hillingdon [2017] EWHC 3411 (Admin) (21 December 2017), Nicklin J is mentioned merely to record that the judicial review application made here for an eight-year old was made in the joint names of him and his mother, J is a single mother with a disabled 8 year old son. The Administrative Court dealt with an application to determine whether L was a child in need under Children Act 1989 s 17 and in relation to safeguarding for him under Children Act 2004 s 11 and Working Together, 2015. The local authority had failed to provide this response and must do so.

 

Re J (Children) [2018] EWCA Civ 115 (6 February 2018) – A married couple with three children (represented by NYAS; and who said they did not want to see their father) were involved in non-molestation order and contact proceedings. The court delayed for over a year in dealing with contact; but made no findings on any of the allegations and counter-allegations of abuse. A father’s appeal that the non-molestation order was allowed to run without determination of facts, and no findings of fact had been made was allowed. But too late: the court could not override the children’s wishes.

 

This case shows a series of delayed and poor case management. The children’s stated wish not to see their father does not seem to have been seriously tested by the courts. The father’s appeal was partly allowed, but no order made largely because of the delays. Although the children’s views were taken into account, they do not seem to have seen any of the judges.

 

P v C & Ors [2018] EWHC 693 (Fam) (28 March 2018), Russell J – A claim of a father (P) (Swedish and living in Sweden) for his children to live with him. C had appeared to alienate the children, who were both represented (aged 14 and 12), but seemed to have relented (though still opposed P’s application, as did the children). In an earlier judgment Russell J found significant harm, and on the Guardian’s recommendation made a supervision order, without any application by the local authority and over the social worker’s recommendation for a family assistance order.

 

The words of CA 1989 s 31(1) suggest it is not possible to make a supervision order without a formal application from the local authority. Russell J’s order must perhaps be accounted unusual. Had there been a formal application if he had wanted it the unrepresented father would have had legal aid. (It is not possible to tell from the report if other parties had legal aid.)

 

Children not (or not obviously) joined

 

Re LG (Re-opening of Fact-finding) [2017] EWHC 2626 (Fam) (3 October 2017), Baker J concerned a contested hearing of a contact application dealt with by justices, and sought to be renewed by the mother before a circuit judge following convictions of the father affecting her and her children. The children included a child of the family aged 7 (born on 9 March 2010). On appeal Baker J sent the mother’s application to another judge. In principle the child should be asked for her views – and ‘opportunity to be heard’. It is unlikely she will have been asked what she feels about contact and whether she will want to talk to the re-hearing judge – where magistrates’ had doubted the credibility of the mother, it was wrong for the judge hearing a child arrangements order application by the father substantially to ignore his later criminal conviction.

 

Egeneonu v Egeneonu [2017] EWHC 2451 (Fam) (30 August 2017), MacDonald J – A mother applied for committal for breach of orders in wardship by the respondent father (F) of their three children (now aged 15, 12 and 10, and retained by him in Nigeria for over 4 years). F applied to adjourn the committal (heard as Egeneonu v Egeneonu [2017] EWHC 2336 (Fam) (below)) to instruct yet further solicitors. On a committal application it was fundamental that a party – the father, in this case – be represented ([28], especially (c); and [32](b)). Unless there was evidence of extreme unreasonable behaviour in his further change of representation or any other reason the case should be adjourned ([29]).

 

In their absence, not surprisingly, the children seem not to have been join joined.

 

Re T (A Child) [2017] EWCA Civ 1889 (23 November 2017) was a local authority non-molestation order under Family Law Act 1996 Pt 4, for a child (aged 10) for her protection whilst with foster carers, and against her mother and cohabitant. She does not appear to have been formally a party in the Court of Appeal. These are not specified proceedings. The appeal established that it is beyond doubt that a local authority can apply for a non-molestation. Perhaps it can be assumed that T should not have been involved in the proceedings; and certainly this type of application is not specified (care/public law) proceedings under CA 1989 s 41.

 

Re M (Children) [2017] EWCA Civ 2164 (20 December 2017) – The Court of Appeal allowed the appeal of a transgender father from an ultra-orthodox Jewish community so, now as a woman, she could pursue contact with her children, who still lived with their mother in the orthodox community. The children are five children, whose ages now range from 13 to 3. The case was sent back to the Family Court for reconsideration by a different High Court judge. The children’s views were taken into account by the judge (Peter Jackson J); but neither before him or in the Court of Appeal was there any formal offer made to the children to speak to the judge – if they wanted to express a view in terms of the EU Charter or UN Convention.

 

A v B [2018] EWHC 328 (Fam) (6 February 2018), Theis J – was a mother’s appeal against a recorder’s refusal to allow her to take an 8-year child to Poland. The appeal was allowed and the case remitted to another circuit judge for hearing. Child not joined.

 

A v R & Anor [2018] EWHC 521 (Fam) (21 March 2018), MacDonald J – A father’s appeal was allowed on the ground that the judge had not properly considered his application for contact to his thirteen year old daughter. She was not joined; and does not appear to have been asked her views. That said, procedurally this case – in which the press reported the parties’ squabbling barristers and the father that they had ‘shouted over each other’ – was undistinguished. It will remain to be seen whether the judge hears the daughter’s views at any future hearing.

 

‘Administrative proceedings affecting the child’

 

Herefordshire Council v AB [2018] EWFC 10 (1 February 2018), Keehan J is included here only to recall that it is not only in court proceedings that a child’s views should be consulted; but also in ‘administrative proceedings’ which would include accommodation under CA 1989 s 20. Keehan J did not formally join either child.

 

The Herefordshire case concerned two children in separate cases had been accommodated for 8 and 10 years under CA 1989 s 20. Keehan J explained how that was a serious abuse of the way s 20 should be used, and of the way informed consent should be obtained from a parent – and of a mature child – if a s 20 placement was to continue. Keehan J started his judgment (in respect of a child who was seven when accommodated; and who remained in range for Art 12/24 purposes for all the period after that):

 

[1] This judgment concerns two unconnected young people who have been accommodated pursuant to the provisions of The Children Act 1989, section 20 (the 1989 Act) for a very considerable period of time.  Their treatment by Herefordshire Council (‘the local authority’) represents two of the most egregious abuses of section 20 accommodation it has yet been my misfortune to encounter as a judge.

[2] CD was born in 2001.  A series of referrals were made to the local authority in respect of his parents’ allegedly abusive relationship in 2005 which led to CD being accommodated by the local authority in October 2009 when he was eight years of age.  He was not made the subject of public law care proceedings until September 2017, when he was 16 years of age; a period of eight years, subject to section 20 accommodation.

[3] On 8 December 2017, I made a special guardianship order in respect of him in favour of his long-term and very dedicated foster carers to whom he affectionately refers as Fossil and Grumpy.

 

If it is the child’s future which is in issue by whatever public body – courts, local authority, health department (see eg Gillick v West Norfolk and Wisbech AHA [1985] UKHL 7, [1986] 1 AC 112, [1986] 1 FLR 224) – then a child is entitled to ‘the opportunity to be heard’ (Art 12.2 (above)); and any child is surely entitled to look to court rules and procedure which is more clear and understandable to the child. Rights are not rights if they cannot be understood by those entitled to them.

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One thought on “Hearing the child in family courts: legal aid and recent cases

  1. Reblogged this on | truthaholics and commented:
    “If it is the child’s future which is in issue by whatever public body – courts, local authority, health department (see eg Gillick v West Norfolk and Wisbech AHA [1985] UKHL 7, [1986] 1 AC 112, [1986] 1 FLR 224) – then a child is entitled to ‘the opportunity to be heard’ (Art 12.2 (above)); and any child is surely entitled to look to court rules and procedure which is more clear and understandable to the child. Rights are not rights if they cannot be understood by those entitled to them.”

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