Children’s rights: thirty years on from the Children Act 1989, Part 2

A child’s views and Children Act 1989

 

The Children Act 1989 (CA 1989) received Royal Assent on 23 November 1989. Thirty years on, the first article of these two looked at some of the more striking features of the Act. What case law has there been in relation to children’s views and how are their rights looked at by the English and Welsh courts (considered more fully at Ch 6 in Children’s Views and Evidence, David Burrows, October 2017, Bloomsbury Professional)?

 

This article asks: to what extent are those views taken into account? It starts from where Part 1 finished: a child only has rights if that child can understand, first, what those rights are and, secondly, how to exercise them. In the absence of these rights being understood and how to access operation of those rights, they can only exist in near futile abstract.

 

Contexts in English law where a child may make the child’s own application

 

The following are the main categories of circumstance where a child may want to make that child’s own application in family proceedings (examples of some of the types of case from existing case law are provided in Part 1). Most of these cases will proceed under CA 1989, but not all (eg child abduction or wardship):

 

• A child’s free-standing application, whether or not with legal representation (CA 1989 s 10(8));
• A child who wants to join in existing proceedings and to make the child’s own application and to have that child’s views taken into account;
• Within existing private law proceedings, to dispense with a court-appointed guardian and for the child to proceed alone (with or without a lawyer);
• A child whose instructions to the child’s instructed solicitor conflict with those of the children’s guardian (mostly in care proceedings); and the child wants her case to proceed on her instructions; and
• A child who wishes to make her own court application alongside an earlier care order; and she wants to instruct her own solicitor where the child’s views conflict with the court appointed children’s guardian (see Re W (Child’s Representation) below).

 

The next question is: how in each category of case does a child (‘Chloe’) know how she can make application to the court, always assuming somebody has told her she has the right in the first place?

 

Lawyers get the law wrong

 

I will start with the last of these examples first, since it shows how even senior judges can get this area of law wrong (and they most certainly have access to law books and legal knowledge in a way which Chloe does not).

 

In Re W (A Child) (Care Proceedings: Child’s Representation) Practice Note [2016] EWCA Civ 1051, [2017] 1 WLR 1027, the Chloe character aged 16 was subject to a care order but wanted to return home. When she ran away, the local authority did not want her returning home so applied for a recovery order. Unlawfully, but no one seems to have noticed this (a recovery order is not of a type which requires the court to appoint a children’s guardian), the court appointed a children’s guardian (R). This was the same guardian with whom Chloe had disagreed when the care order was made. Despite Chloe’s age, the solicitor (G) appointed by the unlawful children’s guardian, took instructions from the guardian not from Chloe. The Court of Appeal does not remark on any of these illegal steps.

 

In parallel with the recovery order application, Chloe found a lawyer (S) to act for her free (only G could get legal aid). S helped her to make an application for a discharge of the care order. In law that was now the right time for a children’s guardian to be appointed; but there was then no reason – again in law – for a children’s guardian to be appointed: Chloe already had a solicitor who was acting for her. Had everyone followed the law up to this point, this case would not ever have got to the Court of Appeal.

 

Black LJ (now Lady Black in the Supreme Court) found the law as to a child’s representation in Re W (Child’s Representation) of ‘complexity’. For example:

 

[18] There was some divergence of view as to which precise part of Rule 16 FPR 2010 should be the focus of the court’s attention. This was explored during the hearing but I do not propose to go into the details because there was, in fact, agreement as to the “test” that determined whether or not FW was entitled to be separately represented. I should make clear that when I speak of FW being separately represented, this is a loose term not entirely reflecting the complexity of the scheme under section 41 of the Children Act 1989 and Rule 16 FPR 2010 [ie FPR 2010 Pt 16]….

 

This is a truly remarkable passage: two Court of Appeal judges (Black LJ sat with Tomlinson LJ), three barristers and their three solicitors (seven or eight specialist lawyers) could not work out which part of Family Procedure Rules 2010 (FPR 2010) Pt 16 (not Rule ‘16 FPR 2010’) at r 16.6 or r 16.29 applied. Had anyone picked up the point that the children’s guardian appointment was unlawful (see definition of ‘specified proceedings’ at CA 1989 s 41(6)) the case would have proceeded under FPR 2010 r 16.6 (ie where ‘a child does not need a children’s guardian’).

 

If the child FW had not found a solicitor to represent her free, it is unlikely any of us would ever heard of this case. FW, against her wishes, and without the court taking account of her ‘views’ would have been forced to stay in care. The fact that her children’s guardian and her original solicitor – without any comment at any level of court – paid any regard to her ‘views’ and she unable to find her way through the scheme which Black LJ found ‘complex’ scheme is – surely? – worrying.

 

Other forms of children application

 

I will revert to the beginning of my list above – the child who, it was said of the 1989 Act, wants in 2019 to divorce her parents. Procedure must be found in two places. First, CA 1989 s 10(2)(b) and (8); and Chloe must know she is of ‘sufficient understanding’. As Black LJ said in Re W, there is no definition of what is ‘understanding’ in the legislation; though in CS v SBH & Ors (Appeal FPR 16.5: Sufficiency of Child’s Understanding) [2019] EWHC 634 (Fam), [2019] 1 WLR 4286 (18 March 2019), Williams J at [79] in that case drew attention to what he thought were aspects of CS’s understanding. That takes Chloe, secondly, to FPR 2010 r 16.6 (‘a child does not need a children’s guardian’). Chloe can make her own application to the court (eg to live with a neighbour or aunt, against her family’s wishes) if the court agrees; or if she can find a solicitor who will take on her case and who can obtain legal aid for her.

 

Next – categories (2) and (3) above – are similar in procedure to (1); but the steps Chloe must take in each are not clear as the 1989 Act and the rules stand. The end result for Chloe in each process is to find to find her way into r 16.6. Category (4) is the well-tested format of a child parting company with her children’s guardian, so her solicitor must take instructions from the child if the solicitor is content that the child is able to give ‘instructions on the child’s own behalf’ (r 16.29(2)).

 

All of these applications by a child depend on her knowing the application can be made; and of finding a lawyer who accepts that the child is of understanding. The recent experiences of the children in the Re W and Re CS cases, show that the view of a child is only indistinctly accepted by some lawyers and judges. W was 15 or 16 and CS nearly 13: to adapt Mark Anthony (in Shakespeare’s Julius Caesar) to children’s law: ‘understanding could be made of sterner stuff’).

 

‘Views’ of a child in English and Welsh law

 

And so to return to United Nations Convention on the Rights of the Child 1989, whose Art 12, it will be recalled, 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.

 

From available reported case law, it seems likely that – with honourable exceptions: see eg Mabon v Mabon [2005] EWCA Civ 634, [2005] Fam 366, [2005] 2 FLR 1011 and Re D (A Child) (International Recognition) [2016] EWCA Civ 12, [2016] 1 WLR 2469, [2016] 2 FLR 347 (both considered in Part 1) – the English and Welsh family courts pay not even lip service to the Convention and Charter. For example in Re W neither are mentioned at all; and in Re CS the Convention was mentioned only as a quote from Mabon.

 

But to ‘assure to the child … [a] right to express views freely’ the child must know that the child has that right and how views are to be expressed. I do not think that the family courts system has even begun to do that. If I am right, for all the high aims of the 30 year old 1989 Act, Article 12 is meaningless and much of what the Act aimed to achieve is also meaningless (in terms of children’s rights) unless children of ‘sufficient understanding’ (CA 1989 s 10(8)) and who ‘are capable of forming [their] own views’ (Art 12.1) know they have the right, and how to exercise it.

Children’s rights after Children Act 1989: Part 1

Royal Assent for Children Act 1989: November 1989

 

The Children Act 1989 (CA 1989) received Royal Assent on 23 November 1989. Its thirtieth anniversary is approaching. Mostly, the Act came into force two years later (October 1991). It was a statute which required all courts, social workers and practising children lawyers (a breed which at the time was only just emerging) and most family lawyers, to learn a completely new set of legal concepts.

 

Much of the Act (Parts 1 to 5 and 10) required a profound re-thinking of the law and its underlying assumptions. For example the change from parental rights (signalled by the Gillick case (below)) to parental responsibility; the simple ‘significant harm’ concept for all care orders which only the local authority could apply for; the idea that in law a child of understanding was a person with rights and thus competent – perhaps with legal or other assistance – to be involved as an active party in proceedings.

 

This article looks at how the law in relation to children’s rights under the Act have moved in the thirty years since it received Royal Assent. Central to the subject of children’s rights is United Nations Convention on the Rights of the Child 1989 (the same year as the Act) whose Art 12 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, goes a little further, by extending children’s rights expressly to actions of public authorities or private institutions. At the time of writing it is not clear for how long UK children will be directly entitled to protection from this Charter.

 

These Articles, though not part of the 1989 Act, can be taken as the golden metwand by which assessment of children’s rights in England and Wales over the thirty years after the Act can be judged.

 

Legal developments in the run up to the Act

 

In the ten years prior to the Act there were a number of significant developments in child law. First, in A v Liverpool City Council [1982] AC 363 at 372, (1981) 2 FLR 222 the House of Lords considered whether the wardship jurisdiction could be used to ask the High Court to review the exercise by a local authority of their operation of a care order. The House of Lords said no. Their view is represented by Lord Wilberforce who said:

 

‘… The court has no such reviewing power. Parliament has by statute entrusted to the local authority the power and duty to make decisions as to the welfare of children without any reservation of a reviewing power to the court. There are, indeed, certain limited rights of appeal as to the care order itself: under section 2 (12) of the Act of 1969 there is an appeal to the Crown Court against the care order;…’

 

This approach to responsibility for care orders is incorporated into CA 1989; but by the same token local authorities may not apply for wardship (which the Act calls ‘inherent jurisdiction’), save with permission from the court (CA 1989 s 100(3)).

 

Secondly, in the mid-1980s, came what was later called the ‘tandem model’ of child representation (advocate and guardian ad litem) in care proceedings; though early on it was found (a circuit judge decision in AR v Avon County Council [1985] FLR 252) that parents had no right to appeal against care orders: a double blow alongside A v Liverpool. The tandem model was developed extensively in CA 1989 Pt 4 and remains firmly part of the modern children law.

 

Thirdly, was Gillick v West Norfolk and Wisbech AHA [1985] UKHL 7, [1986] 1 AC 112, [1986] 1 FLR 224 which remains common law of the highest authority on the development of a mature child’s understanding (in Gillick the ‘understanding’ was whether a doctor could provide contraceptive information to a child under 16 without her parent’s consent or knowledge: the answer was, yes); and of the way a parent’s right yields to a child’s right to make the child’s own decisions as the child ‘reaches a sufficient understanding and intelligence to be capable of making up his own mind on the matter requiring decision’ (per Lord Scarman at [1986] 1 AC 112, 186).

 

Finally, two years after Gillick came publication of the Report of the inquiry into child abuse in Cleveland 1987 Cm 412 London (HMSO) chaired by Elizabeth Butler-Sloss J. The Report was concerned with allegations of child abuse and of the ill-co-ordinated response of health authorities, social workers and police to the allegations. One of its clearest points was to emphasise that a child is a person, not just an object of concern.

 

Birth of Children Act 1989

 

As a Law Commissioner, Brenda Hoggett (the judge now known as Lady Hale, President of the Supreme Court) was closely involved with the development of the Law Commission reports, ideas and drafting of what became the 1989 Act. Amongst the Act’s more radical elements are:

 

• To give children the right, if of sufficient understanding, to take part in litigation under the Act about them; and to affirm that every child involved in care and other local authority proceedings would be represented by a guardian ad litem (ie an independent social worker) and a solicitor in tandem;
• To say in terms that the wishes and feelings of a child, the subject of proceedings, were factors the court must take into account when considering that child’s welfare;
• To incorporate into one statute the private aspects of children proceedings (where and with whom they should live, for example) and the administrative law (which became known as ‘public law’: local authority care proceedings) components with, as far as possible, a consistent set of welfare principles to govern both; and
• To provide legal aid for parents and children involved in care proceedings regardless of their means and of the merit of their case.

 

So how has the position of children’s court applications developed since 1991? Frankly case law has been sparse (since the early few children application cases). The common law has developed only hesitantly (mostly in the occasional decisions of Lady Hale since she arrived in the House of Lords (now Supreme Court)).

 

It was understood from early on that – Legal Aid Board (as it then was) permitting – a child could ask for permission to apply for the child’s own order under CA 1989 Pt 2 (‘a Section 8’ order); or, as the media called it, a child could ‘divorce her parents’ (as did CT in Re CT (A Minor) (Wardship: Representation) [1994] Fam 49, [1993] 2 FLR 278, CA who wanted to leave her adopted parents and to go back to live with her birth family, with whom she had retained contact). The child’s solicitor, with final say from the court, was the arbiter of whether a child had ‘sufficient understanding’ (CA 1989 s 10(8)) to make the application. In recent years reported decisions on children taking private proceedings are rare.

 

By 2005 two highly experienced family judges – Thorpe and Wall LJJ in the Court of Appeal – considered the rights of children to express views in proceedings between their parents in Mabon v Mabon [2005] EWCA Civ 634, [2005] Fam 366, [2005] 2 FLR 1011. Parents of six children were engaged in residence order proceedings relating to the three older, boys aged 17, 15 and 13. They wanted to instruct their own solicitor to represent them for the hearing to resolve where they should live. The judge refused to grant the application for separate representation (now under Family Procedure Rules 2010 (FPR 2010) r 16.6(5)).

 

Allowing the boys’ appeal Thorpe LJ explained how the courts must adapt and recognise a developing attitude to children’s rights, their autonomy and to the court’s obligations to comply with them:

 

[26]   In my judgment, the rule is sufficiently widely framed to meet our obligations to comply with both Art 12 of the UN Convention and Art 8 of the European Convention, providing that judges correctly focus on the sufficiency of the child’s understanding and, in measuring that sufficiency, reflect the extent to which, in the twenty­-first century, there is a keener appreciation of the autonomy of the child and the child’s consequential right to participate in decision-­making processes that fundamentally affect his family life.

 

Thorpe LJ drew attention to the need to balance the welfare of the child against the harm to a mature child which might arise ‘from denying the child knowledge of and participation in the continuing proceedings’.

 

Listening to children

 

A year later, in Re D (Abduction: Rights of Custody) [2006] UKHL 51, [2007] 1 AC 619 Lady Hale, then in House of Lords, considered whether an eight year old Romanian child should be returned to Romania. Of a child’s views (see Arts 12 and 24 above) she said:

 

[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. Especially in Hague Convention cases, the relevance of the child’s views to the issues in the case may be limited. 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…. 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.

 

In Re W (Children) (Abuse: Oral Evidence) [2010] UKSC 12, [2010] 1 WLR 701 Lady Hale (now in the Supreme Court) considered whether, in care proceedings, a 14 year old girl should be called to give evidence. The judge had said no. The Court of Appeal felt bound by authority to say no also. Lady Hale’s judgment reversed earlier law and made it clear that a child can give evidence, depending on the circumstances. She traced the variety of alternative forms of taking evidence in children proceedings and concluded that there are two factors as to whether a child should give evidence: ‘[24] … the court will have to weigh two considerations: the advantages that that will bring to the determination of the truth and the damage it may do to the welfare of this or any other child…’. Guidelines in relation to children giving evidence in family proceedings of December 2011 [2012] Fam Law 70 followed this case; but nearly ten years later children law rule-making or authoritative guidance is no further forward than these modest ‘guidelines’.

 

In Re D (A Child) (International Recognition) [2016] EWCA Civ 12, [2016] 2 FLR 347 Art 24 of the Charter was considered in terms by Ryder LJ in the Court of Appeal. Had the child, David (aged 8), been given ‘an opportunity to be heard’, in Romania? If not was this ‘in violation of the fundamental principles of procedure in [an English] jurisdiction’. The court considered he had not been heard on parental responsibility (ie in where he was to live as required by Brussels IIA Art 23(b), so his father could not enforce the order in this country. Ryder LJ cited Art 24 of the Charter in full and related ‘fundamental principles’ of procedure to CA 1989 s 1(3)(a), that is, the ‘ascertainable wishes and feelings of the child’.

 

Section 1(3)(a) was a ‘fundamental principle’ on which the court’s discretion is founded and which no ‘parent can seek to avoid’. It therefore goes further than ‘a check-list factor’. It is, said Ryder LJ, ‘plainly an example of domestic jurisdiction giving force to a fundamental principle of procedure’.

 

‘A case about children’s rights’

 

CA 1989 was a clear, well-thought out and well-expressed piece of legislation which was broadly welcomed by anyone who came into contact with it. It was a credit to family law. A couple of years later a real blot on family law reform appeared on the statute book: Child Support Act 1991. Amended to twice its length, with infinite permutations of subsidiary legislation the 1991 Act is still there. It was designed for children’s benefit as well, but it gives them no rights or permission to be involved in its Kafkaesque administrative intricacies.

 

Early in her time in the House of Lords Lady Hale was in a minority of one in a child support case, namely R (Kehoe) v Secretary of State for Work and Pensions [2005] UKHL 48, [2006] 1 AC 42. Kehoe had decided, harshly, that a parent could not sue privately for their child’s maintenance. She could only wait for the Child Support Agency to fail, and then with appropriate funding she could apply for judicial review of the Agency’s dragging of its enforcement feet. Lady Hale started her speech by recalling childrens’ rights:

 

[49] My Lords, this is another case… which has been presented to us largely as a case about adults’ rights when in reality it is a case about children’s rights. It concerns the obligation to maintain one’s children and the corresponding right of those children to obtain the benefit of that obligation.

 

Children’s rights in 2019: thirty years on from Children Act 1989

 

So where are children’s rights 30 years on from the 1989 Act, and from the heady 1980s which gave child law Gillick, Cleveland, and the UN Convention?

 

First what are the rights in real terms and as a party to family proceedings (considered more fully at Ch 6 in Children’s Views and Evidence, David Burrows, October 2017, Bloomsbury Professional ). The contexts in which a child’s understanding is critical to their involvement in proceedings arise as follows:

 

• A child who wants to make a free-standing application, whether or not with representation (CA 1989 s 10(8); eg Re CT (above));
• A child who wants to join in proceedings: that is to make a separate application (with or without representation in existing proceedings) (eg Cambra v Jones (Contempt Proceedings: Child Joined as Party) [2014] EWHC 913 (Fam), [2015] 1 FLR 263, Sir James Munby P).
• Within existing private law proceedings, to dispense with a court-appointed guardian and proceed alone or represented by his/her own lawyer (eg Mabon v Mabon (above));
• A child whose instructions to his or her instructed solicitor conflict with those of the children’s guardian; and the child wants his or her part in the case to proceed on the child’s instructions (FPR 2010 r 16.29(2)(a)); and
• A child who wishes to pursue fresh applications alongside a care order made in earlier care proceedings and wants to instruct a solicitor where the child’s views conflict, or are likely to conflict with the children’s guardian (FPR 2010 r 16.29(2); Re W (A Child) (Care Proceedings: Child’s Representation) Practice Note [2016] EWCA Civ 1051, [2017] 1 WLR 1027 (‘Re W (Child’s Representation)’).

 

But, and this is a major ‘but’, a child only has rights if that child can understand what her rights are and how to exercise them; and over these two points hang substantial question marks. As will be shown Black LJ (now Lady Black in the Supreme Court) found the law as to a child’s representation in Re W (Child’s Representation) ‘of complexity’ (and, in the end, the Court of Appeal got the law wrong in that case). If Lady Black gets elements of the child representation rules wrong, what chance have the rest of us? And – which is what we are concerned with here – what chance has a child to find – and understand – the rights answers?

 

Finding the answers on representation and assessing the impact of Children Act 1989 on children’s rights will be dealt with in Part 2.