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  EWCA Civ 1051,  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:
 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)  EWHC 634 (Fam),  1 WLR 4286 (18 March 2019), Williams J at  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  EWCA Civ 634,  Fam 366,  2 FLR 1011 and Re D (A Child) (International Recognition)  EWCA Civ 12,  1 WLR 2469,  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.