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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Child’s views and court proceedings

EU Charter of fundamental rights and children

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Charter of Fundamental Rights of the European Union is to go on European Union ‘exit day’: ie the day that EU withdrawal finally happens and whatever other terms – or not – are negotiated by the politicians. Clause 5(4) of that the European Union (Withdrawal) Bill says: ‘(4) The Charter of Fundamental Rights is not part of domestic law on or after exit day’. That means the EU Charter no longer be part of English law once ‘exit day’ has happened.

 

So what has that got to do with children law? For children themselves the EU Charter – though hesitatingly applied by judges and family lawyers – means a lot. That is because Art 24 of the Charter says that ‘in all matters which concern them’ children are entitled to ‘express their views freely’. As relevant here Art 24 says:

 

1 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.

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….

 

As I will show, I do not think the statute law which English judges apply goes as far as that; though judge-made law – perhaps, and as explained below – will incorporate the equivalent of Art 24 into English law. Before I move on, however, I must also introduce United Nations Convention on the Rights of the Child 1989. This is an extensive set of aims for rights of a child to which UK is a signatory; but it is not enforceable in English courts. It does not have the force of law which – while it lasts – the Charter has.

 

‘Procedural rules of national law’ and UN Convention

 

The UN Convention 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.

 

Even if it were enforceable in English law, UN Convention does not go as far as the Charter. Most important the views of a child – ‘opportunity to be heard’ – are of use under Art 12 only so far as a country’s ‘procedural rules’ apply. That is a get-out provision for a Government. A country has only to say, we don’t have appropriate ‘procedural rules’; and that can a child having any right to be heard. And – surely a matter of shame for English family lawyers? – it must be said that the English ‘procedural rules’ are sufficiently muddled (see eg Children Act 1989 ss 10(8) and 41 and Family Procedure Rules 2010 Pt 16) and indistinct, that it may be possible to say to a child that, as English law stands, there are no procedural rules by which a child may be heard; or am I being too harsh? That must be reviewed on another occasion.

 

The question which this article addresses is: how far will the spirit of Art 24 remain part of the common law – ie part of English law and to be applied by English judges – for children and in proceedings about them?

 

The importance of Art 24 is emphasised by Brussels IIA (Council Regulation (EC) No 2201/2003 of 27 November 2003 Concerning Jurisdiction… in Matters of Parental Responsibility ), which will also go on exit day, unless all EU family courts can come to an agreement by then – hardly likely, I fear – as to it future. Within Brussels IIA, its recital (33) says of Art 24 within the Regulation:

 

(33) This Regulation recognises the fundamental rights and observes the principles of the Charter of Fundamental Rights of the European Union. In particular, it seeks to ensure respect for the fundamental rights of the child as set out in Article 24 of the Charter of Fundamental Rights of the European Union…

 

And then Art 24? Children ‘may express their views freely’. Will this passage survive EU withdrawal; and if it does so how is it to be operated more clearly than has been the case up to now? How will children know if it may apply to them; and how may they take advantage of it: in the sense of being able to say to say to someone? As a child, I have a right (by one means or another: see Lady Hale in Re D (Abduction: Rights of Custody) [2006] UKHL 51, [2007] 1 FLR 961 at [59]) to say what I think about all this and to talk to the judge who is to decide my future.

 

Art 24 as common law; and ‘a fundamental principle of procedure’

 

Art 24 was considered by the Court of Appeal in Re D (A Child) (International Recognition) [2016] EWCA Civ 12, [2016] 2 FLR 347 Art 24 alongside Children Act 1989 s 1(3)(a) (that in making a decision about a child the court must have in mind the child’s ‘wishes and feelings’ according to their age and understanding). The court was considering the future of a seven year old (David) in the context of Brussels IIA (due to go with EU withdrawal as well). The English court needed to consider whether a Bulgarian return order should be enforced in the UK; and for this a question was, had the Bulgarian court had given David ‘an opportunity to be heard’ (Brussels IIA, Art 23(b)). If they had not, was this ‘in violation of a fundamental principle of procedure’ of the UK?

 

David had not been given such ‘opportunity’ said Ryder LJ; this was not in accordance with the fundamental procedural principles (s 1(3)(a)) of English courts; so the Bulgarian order would not be enforced here. The Supreme Court gave leave to appeal, but set aside that decision: Re D (A Child) (Supreme Court: Jurisdiction) [2016] UKSC 34, [2016] 2 FLR 379, [2016] AC 1117): they had no jurisdiction to hear an appeal under Brussels IIA. The common law remains as set out Ryder LJ’s judgement (and see discussion of this in ‘Children’s Views and Evidence’, David Burrows, Bloomsbury Professional at Ch 4).

 

There is a respectable argument for saying that the Re D approach applies in all children cases where their views should or can be heard by the court ([41]-[44]). Said Ryder LJ:

 

[44] … 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…relates to the weight to be put upon a child’s wishes and feelings, not their participation.

 

Children’s rights: new statute law, or a Henry VIII power

 

And that assertion from Ryder LJ is premised on Art 24. So what happens when Art 24 goes? Ryder LJ’s approach remains the common law, even without underpinning from Art 24. Without the clear line set out by the Court of Appeal English children in family proceedings are left only with the permissive approach suggested by s 1(3)(a) and quasi-legislation (albeit endorsed by Family Division judges) set out in Family Justice Council: Guidelines on Judges Meeting Children who are subject to Family Proceedings April 2010 [2010] 2 FLR 1872 (prepared after Re D (Abduction: Rights of Custody) (above)). This sets out ‘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. As can be seen Art 24 is much stronger – that is, pro-child – than that.

 

As the source of a right, and as previously set out in Art 24 and as confirmed in Re D, Family Justice Council ‘guidelines’ (even as backed by s 1(3)(a)) are a pallid imitation. As a document offered by English law to guarantee my rights if I were a child affected, I would feel insecure; especially if I was watching the EU Charter boat (with Art 24 aboard) sailing back across the Channel. And I would not be confident that – even as far as it goes – the ‘guidelines’ provide the ‘procedural law’ required by UN Convention Art 12.2.

 

If the common law is not thought to be as expressed by Ryder LJ, I would urge the Ministry of Justice to put the matter beyond doubt, before exit day for the sake of children. Most of the drafting has been done: it’s there in Art 24.

 

And it needs primary legislation. Rules or a practice direction are not enough. Or could it be set out as an early an early example of a Henry VIII power with the new Minister of Justice performing the role of the Tudor monarch….

EU Charter of rights and children

A child’s Charter rights which will be lost

 

The Observer today reported that clause 5(4) in the European Union (Withdrawal) Bill which proposes to abolish Charter of Fundamental Rights of the European Union (‘the Charter’) will create a substantial ‘human rights deficit’. It will leave ‘many different groups in society without adequate protection’. Clause 5(4) is in brutally clear terms: ‘(4) The Charter of Fundamental Rights is not part of domestic law on or after exit day’. This article concentrates on children’s rights under the Charter which will go on exit day.

 

An important means of protecting rights – apart from those rights already enshrined in a variety of other legislation and in the common law – is European Convention 1950. This is incorporated, most of it, into English law by Human Rights Act 1998. However there are two substantial qualifications to the importance of European Convention 1950, which the Charter helps to resolve. First, Human Rights Act 1998 does not override an Act of Parliament; though it can enable judges to declare them incompatible with the European Convention 1950. Secondly, the Charter’s protection means that if there is a conflict between basic rights contained in the Charter as against an Act of the Westminster parliament, the Charter – as EU law – will prevail over the Act.

 

Thus if there is – as there may be – a conflict between Children Act 1989 s 1(3) and Art 24 of the Charter for children rights, then the Charter will prevail; unless clause 5(4) becomes law when, after exit day – when UK leaves the EU – the Charter exits too.

 

Children law an EU withdrawal: out with the Brexit bathwater…

 

An area of law which will be appreciably affected in a number of ways by EU withdrawal is children law, in particular where they and one of their parents are living in UK, and the other is in a EU member state. That is a subject which is beyond the scope of this article. I want to concentrate here only on the Charter; and referring only to law which does not remain part of English law. Art 24 of the Charter is concerned specifically with children’s rights (as is, though in slightly different terms, United Nations Convention on the Rights of the Child 1989 Art 12).

 

Under European Convention 1950 children do not have specific rights. Like anyone else a child has rights under the Convention, such as to respect for the child’s private life (Art 8); but a child does not have the specific rights protected by Art 24.

 

Charter of Fundamental Rights of the European Union Art 24 says:

 

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.

 

EU Charter Art 24: children to express views freely

 

I have broken this Article down into its component rights and have set out the Charter rights – ie part of English law as it now stands; and nothing to do with European Convention 1950 human rights. Alongside the Art 24 rights I have shown the parallel English law right – ie all that will remain if the EU Charter is abolished by the Brexit law (as under cl 5(4)). Where there is a blank there is no equivalent provision in English law; though plainly the right at 1 is the subject of a substantial part of a variety of legislation, including local authority involvement with children under Children Act 1989 Parts 3 to 5. It is the right to express views (at 2) which is unique to the Charter:

 

  Charter of Fundamental Rights of the European Union Art 24: children’s rights English law Source of English law
1 Children have a right to such protection and care as is necessary for their well-being    
2 Children may express their views freely    
3 Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity. When a court is 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) Children Act 1989 s 1(3)(a) and (4)
4 In all children cases… the child’s best interests must be a primary consideration. When a court determines any question with respect to – (a) the upbringing of a child; or the child’s welfare shall be the court’s paramount consideration. Children Act 1989 s 1(1)
5 Every child shall have the right to maintain a personal relationship and direct contact with both his or her parents, unless that is contrary to the child’s interests A court is entitled to presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child’s welfare. Children Act 1989 s 1(2A)[1]

 

Child’s views, according to age and maturity

 

The passages in Art 24 with which I am concerned here are at 2 and 3; since 2 is not re-produced in English law in terms which are, in effect, mandatory as is the case in Art 24. If a child wants to express a view, the child ‘may’ do so; and means must be found to ensure this. Even now that is not done properly in English children proceedings. The provision at 2 in the table does not exist in English law, save – whilst the Charter remains part of English law – in Art 24.

 

The importance of Art 24 has been asserted by the Court of Appeal in a judgment approved by the Supreme Court in Re D (A Child) (International Recognition) [2016] EWCA Civ 12, [2016] 1 WLR 2469, [2016] 2 FLR 347 where Lord Justice Ryder explained why a seven-year old Bulgarian child should have had ‘an opportunity to be heard’. This does not mean the child necessarily has to appear in court; but the ‘opportunity’ must be there which it had not been in the Bulgarian courts.

 

The terminology ‘opportunity to be heard’ derives from EU legislation – 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 – to give it its full title; generally known as ‘Brussels IIA’, or Brussels IIR. That legislation will also go with EU withdrawal, a fact which was noted (at para [71]) by the Supreme Court in the Gina Miller case (R (Miller & anor) v Secretary of State for Exiting the European Union [2017] UKSC 5, [2017] 2 WLR 583).

 

The alignment of Brussels IIA and the Charter will be considered in another article. For now it is sufficient to say that Brussels IIA as part of its preliminary provisions includes:

 

(33) [Brussels IIA] recognises the fundamental rights and observes the principles of the Charter of Fundamental Rights of the European Union. In particular, it seeks to ensure respect for the fundamental rights of the child as set out in Article 24 of the Charter of Fundamental Rights of the European Union,

 

Views: an opportunity to be heard

 

So, said Ryder LJ, in Re D (above) that the child’s right to an opportunity to be heard is a ‘child-centred issue’. It ensures that the child is engaged in the process and is accorded due respect in that process. It is thus part of the rule of law in England and Wales that a child has the right to participate in the process about the child (emphasis added) he said, and then continued:

 

[44]  … 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 (my italics).

 

To me this issue turns on the two forms of legislation at 3 above. Childrens’ views shall be taken into consideration on matters which concern them in accordance with their age and maturity, is the EU Charter version. English law says that when making  a decision about a child’s future the court ‘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)’.

 

To me – and I am trying very hard not to load my pro-European views onto this – the English version of the law, from a child’s point of view, is appreciably weaker under Children Act 1989 s 1(3)(a). A child’s ‘wishes and feelings’ are but one of six factors to be considered by the court. None of the six are to be given priority. In EU law the child has a right – unconditionally – to have his or her views taken into account (if that is what the child wants).

 

Under the EU withdrawal bill those child’s rights will go. Children Act 1989 s 1(3)(a) will be all that is left to protect such rights as children are accorded by family courts.

[1] Added by amendment by Children and Families Act 2014 from April 2014

Representation of children and their rights

Law on child’s rights to representation and legal aid

 

I have just finished writing a book on ‘Children’s views and evidence’ Bloomsbury. The book is about the rights of children and the way they give evidence and express views in courts. But rights are of little meaning if you do not know about them; or you do not have someone who can help to understand and represent those rights. At one point I tried to reduce the law into a manageable form for those who represent children; and in so doing I realised what a fractured set of principles is the law of representation of children’s rights in family proceedings.

 

If a child wants to find it, or if a lawyer to understand if she or he can represent a child, the law is scattered around, for example:

 

  • in statutory provision (mostly Children Act 1989, especially s 10(8) and s 41 for care proceedings);
  • in rules (mostly Family Procedure Rules 2010 Pt 16, but r 12.3 crops up); and
  • in legal aid legislation (Legal Aid Sentencing and Punishment of Offenders Act 2012 and various regulations under that Act).

 

The scheme under CA 1989 and FPR 2010 Pt 16 can be seen to perplex even a children lawyer of the calibre of Lady Black (Black LJ in the Court of Appeal as she was). She has described parts of the law for representation of children as ‘of complexity’ (in Re W (A Child) (Care Proceedings: Child’s Representation) Practice Note [2016] EWCA Civ 1051, [2017] 1 WLR 1027).

 

I quote in full the relevant passage of Black LJ’s her judgment (considered more fully at para 6.88 in my book, due for publication in the next couple of months). Of a case where a 16 year old had been refused representation by a solicitor of her choice, Black LJ said:

 

[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]. What I seek to convey by it is a situation in which FW separates from the children’s guardian appointed to represent her interests, and gives her own instructions to a solicitor, as occurred in the original care proceedings….

 

It is possible, even after that explanation, that the Court of Appeal did not find the correct way through the ‘complexity’ (as explained in the book). For example, there was probably no need in the early stages of the case for a children’s guardian to be appointed (recovery order proceedings under CA 1989 are not ‘specified proceedings’: s 41(6); and the child was not at that stage a party to the case (see FPR 2010 r 12.3). Had the court (probably the Family Court) which originally dealt with the case got that right, the appeal is unlikely to have been necessary; and W would have had the representation of her choice from the start.

 

Four schemes for representation of children

 

There are at least four separate schemes for child representation in family proceedings:

 

  • in care proceedings (CA 1989 s 41);
  • in private proceedings where the child applies for an order (CA 1989 s 10(8));
  • child abduction (Hague Convention) proceedings; and
  • where a child applies to join in proceedings which concern him or her (CA 1989 Pt 2 or Hague Convention).

 

In each of these the law and rules as to a child’s representation are different. They can be found in different statutes and proceedings rules.

 

In each an assessment of the ‘understanding’ of an older child will be necessary; though the law is not always clear on exactly when and by whom this assessment is to be done (see Chapter 6 Part 4).

 

Legal aid for child representation

 

The legal aid scheme which applies to all this is beset by its own semantic contortions (as Chapter 6 part 6 of the book shows). Definitions do not parallel those in the children proceedings scheme. For example, the reader must distinguish between ‘specified proceedings’ (CA 1989 s 41(6); and see 6.12) which tell the child whether she or he should have appointed a children’s guardian (CA 1989 s 41(1); and the different terminology under the legal aid scheme.

 

To establish whether or not legal aid is available the child must work out whether her or his case is:

 

  • A ‘special Children Act 1989 case’ (6.108); or is it
  • A ‘a public law case’ (eg because it is not a ‘special Children Act 1989 case’) (6.112); or, yet again, is it
  • Any other form of case where ordinary civil legal services representation may be available (6.114)?

 

All this need to be kept clear; since in the Re W case it seems the courts (including the Court of Appeal) may have got it wrong.

 

I have said here that the child must work out for example whether she is entitled to legal aid. And of course, most children will have help, probably from a lawyer. But for the mature – that is, the Gillick-competent child – that is not guaranteed. That child may have to work through the procedural and legal aid rules to understand what his or her rights to representation are. In the Re W case the lawyers who were dealing with the child’s case (though against her wishes) got the law wrong.

 

That any children are confronted – whether represented or not – by a law which even a senior children judge finds ‘complex’ – and may wrongly construe – is a blot on our justice system. (W was busy studying for and sitting exams, so she probably had little time in any event to study the minutiae of CA 1989 s 41(6), FPR 2010 Pt 16 and aspects of the legal aid scheme.)

 

David Burrows

31 August 2017

 

Primacy of children’s interests in the publicity debate

Freedom of expression: are children’s interests ‘paramount’?

 

In her update on transparency on the Transparency Project blog ‘Lucy R’  raised what has been said by Sir James Munby P: that ‘the interests of the child are NOT paramount on questions of publication’. This she said ‘does indeed represent the established view, but is a point which is not entirely uncontroversial’; by which she meant this view of Sir James was not universally agreed.

 

She went on to point out that in Re W (Children) [2016] EWCA Civ 113 (pas 41-43) – which concerned the extent of publicity which there for Poppi Worthington – McFarlane LJ in the Court of Appeal ‘queried (obiter) whether this [view of paramount interests of children] was in fact correct’. That is, he mentioned in passing in his judgment, that he did not necessarily agree with Sir James on this question.

 

This note looks at ‘paramount’, ‘primacy’ and other terms used; and briefly examines how lawyers can argue the dance of angels on the point of a needle in discussing their meaning. McFarlane LJ’s comments in Re W (Children) [2016] EWCA Civ 113 included the following:

 

[41] … In the process of preparing this written judgment, however, I have come to the preliminary view that there may be a conflict, or at least a tension, between the apparently accepted view that welfare is not the paramount consideration on an issue such as this, on the one hand, and Court of Appeal authority to the contrary on the other hand….

[42] The key authorities to which I am referring are a criminal case in the House of Lords, Re S (Identification: Restrictions on Publication) [2004] UKHL 47; [2005] 1 AC 593, a private law family case in the Court of Appeal, Clayton v Clayton [2006] EWCA Civ 878[2007] 1 FLR 11 and a public law child case in the High Court, Re Webster; Norfolk County Council v Webster and Others [2006] EWHC 2733 (Fam)[2007] 1 FLR 1146.

 

In the last case cited (Re Webster) Munby J said only (before moving on):

 

[56] It is clear from Re S (Identification: Restrictions on Publication) and A Local Authority v W that in this context at least the interests of the child are not paramount. Nor is there anything novel in this. As I said in Re X (Disclosure of Information)  [2001] 2 FLR 440, at para [23], summarising the relevant pre-Convention case-law: ‘The interests of the child (which … typically point against disclosure) are a “major factor” and “very important” … But … it is clear that the child’s interests are not paramount.’

 

In children law ‘paramount’ is a totemic term, now preserved in Children Act 1989 s 1(1). Judges use it, but rarely say what they mean by it. The Shorter Oxford dictionary speaks of ‘paramount’ as meaning being ‘above in rank or scale’, or above all in ‘order or jurisdiction’. (On this basis I wonder how Munby J distinguished ‘paramount’ from a ‘major factor’ in the Webster case?) As defined by the Shorter Oxford Lord Kerr’s ‘no factor given greater weight’ (discussed in H(H) (below)) may come to the same thing as paramount. (Lord Kerr, incidentally, describes the definition debate as a ‘fairly arid one’ ([143]).)

 

If the issue is between the freedom of expression of the media (European Convention 1950 Art 10; Human Rights Act 1998 s 12(4)) and a child’s right to respect for family life (Art 8) that child is entitled to ask whether Munby J’s view in Re Webster would find favour with the Supreme Court today.

 

‘No factor greater weight’

 

Two further Supreme Court cases case be thrown into the mix of cases mentioned by McFarlane LJ in ‘Poppi’s’ case. In PJS v News Group Newspapers Ltd [2016] UKSC 26, [2016] AC 1081, [2016] 2 FLR 251, [2016] 2 WLR 1253 (the ‘three-way sex’ reporting restrictions order injunction case) Lady Hale said:

 

[72]   I agree that this appeal should be allowed and the interim injunction restored for the reasons given by Lord Mance. I wish only to add a few words about the interests of the two children whom PJS has with YMA. It is simply not good enough to dismiss the interests of any children who are likely to be affected by the publication of private information about their parents with the bland statement that ‘these cannot be a trump card’. Of course they cannot always rule the day. But they deserve closer attention than they have so far received in this case, for two main reasons. First, not only are the children’s interests likely to be affected by a breach of the privacy interests of their parents, but the children have independent privacy interests of their own. They also have a right to respect for their family life with their parents. Secondly, by s 12(4)(b) of the HRA 1998, any court considering whether to grant either an interim or a permanent injunction has to have ‘particular regard’ to ‘any relevant privacy code’. It is not disputed that the IPSO [media editors’] Code, which came into force in January, is a relevant Code for this purpose. This, as Lord Mance has explained, provides that ‘editors must demonstrate an exceptional public interest to override the normally paramount interests of [children under 16]’.

 

A helpful formulation of the importance of children’s interests comes from Lord Kerr (who also agreed with Lady Hale’s judgment in PJS (above)) in H(H) v Deputy Prosecutor of the Italian Republic, Genoa (Official Solicitor intervening) [2012] UKSC 25, [2013] 1 AC 338 (a deportation case, which concerned also the welfare of the deportees children). He was discussing his and Lady Hale’s views in the earlier ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4, [2011] 2 AC 166, [2011] 1 FLR 2170 on children’s interests in the Convention Art 8/Art 10 balance:

 

[145] Baroness Hale JSC (in para 14 above) has correctly described my statement in para 46 of ZH (Tanzania) v Secretary of State for the Home Department  [(above)] as expressing more strongly than other members of the court the importance that should be attached to their best interests in reaching decisions that will affect children. In suggesting that these should be given a primacy of importance, I did not intend to stoke the debate about the distinction between “a factor of primary importance” and “the factor of primary importance”. What I was seeking to say was that… no factor must be given greater weight than the interests of the child….

 

At [144] Lord Kerr sets out his proposed ‘sequencing of interests’ to define where a child’s interests, in human rights terms, lies; and the proportionality of interference with them:

 

[144] … This calls for a sequencing of, first, consideration of the importance to be attached to the children’s rights (by obtaining a clear-sighted understanding of their nature), then an assessment of the degree of interference and finally addressing the question whether extradition justifies the interference. This is not merely a mechanistic or slavishly technical approach to the order in which the various considerations require to be evaluated. It accords proper prominence to the matter of the children’s interests.

 

Does Lord Kerr’s suggestion that ‘no factor [should] be given greater weight’ than children provide a definition of ‘paramount’ which works for Children Act 1989 s 1 and for European Convention 1950 human rights questions? Lady Hale’s comments in PJS suggest that she might agree with Lord Kerr on this. It puts children’s interests top of any list. If Re S (Identification: Restrictions on Publication) (referred to by McFarlane LJ: press Art 10 interests held to come before Art 8 interests of children who might be affected by publicity) had been decided by Lady Hale and Lord Kerr today, I wonder which way it would have gone?

Rights: privacy, anonymity and freedom of expression on family cases

‘Open justice’ in family proceedings

 

As a High Court judge (Mostyn J) has commented (in Appleton & Anor v News Group Newspapers Ltd & Anor [2015] EWHC 2689 (Fam), [2016] 2 FLR 1) rights to open justice in family proceedings are a mess; though – sad to say, and as will be seen below (the Carmarthenshire case) – he has done his own bit to stir the muddled pot.

 

Family lawyers are debating whether financial relief hearings (an important part of the family courts’ work) should be in open court or in private (as FPR 2010 r 27.10 – though without any statutory or common law underlay) says they must be. Different Family Division judges take different views (and Mostyn J is one of the noisier ones on the subject).

 

Three cases in the last month remind lawyers generally of the variety of application of open justice principles:

 

  • The predominant issue is whether a case should be heard in public as common law has long required (Scott & Anor v Scott [1913] UKHL 2, [1913] AC 417; and see eg ‘To be heard in the dining hall…’: Scott 100 years on). Subsidiary to this are, for exampe:
  • Anonymity for a party to proceedings; or to a witness or others (eg expert witnesses, social workers etc) involved in the case (eg Khuja below);
  • Release of court and other hearing documents (a consequence of the Carmathen case below);
  • Publicity for a private (eg children) case (and the balance to be struck between privacy (European Convention 1950 Art 8) and freedom of expression (Art 10) (eg Southend case below).

 

Khuja : ‘what’s in a name?

 

Khuja v Times Newspapers Ltd [2017] UKSC 49 relates to the open justice principle and a person’s involvement – though not charged – in criminal proceedings. Charges arose from facts which are directly of concern to family lawyers, namely child sexual abuse (see eg Birmingham City Council v Riaz & Ors [2014] EWHC 4247 (Fam), [2015] 2 FLR 763 Keehan J). As Lord Sumption said (giving judgement for the 5:2 justice majority):

 

[1] For some years The Times and other media organisations have taken a close interest in investigating and reporting on allegations that the police and child protection authorities have failed adequately to confront a pattern of crime involving the sexual exploitation of vulnerable young teenage girls by older men. It need hardly be said that this is a subject of serious public concern. It has given rise to a number of government-ordered national inquiries, a review of standards of protection in children’s homes, and substantial changes in the procedures of the police and prosecuting authorities for handling such cases.

 

Nine men were tried on charges involving organised child sex in the Oxford area. Seven men were convicted. Khuja had been arrested, but not charged. After his release without charge, the newspapers successfully applied to lift an order preventing his identification. Khuja wanted to maintain a reporting restrictions order. The newspapers said that Khuja was ‘someone suspected by the police of being involved in sexual offences against children’. They wished to publish information about him ‘confined to material derived from the proceedings at the trial’ (§[4]).

 

The majority (Lord Neuberger, Lady Hale and Lords Sumption, Clarke and Reed: Lords Kerr and Wilson were the minority) noted that the appellant was seeking to prohibit the reporting of matters discussed at public trial. These were not matters where he had any reasonable expectation of privacy. The impact on the appellant’s family life is indirect and incidental: neither he nor his family participated in any capacity at trial, and nothing that was said at trial related to his family.

 

The public interest in allowing the press reporting of court proceedings extends to the appellant’s identity, said Lord Sumption. Media reporting of cases depends on the right of the public to be informed about public acts of the state, balanced against the law’s recognition that how a story is presented is a matter of editorial judgment.

 

Finally, what does a name matter? ‘What’s in a name? asked Lord Rodger in Re Guardian News and Media Ltd [2010] UKSC 1, [2010] 2 AC 697 (and see Lord Sumption at §[29]). Lord Rodger answered himself:

 

‘A lot’, the press would answer. This is because stories about particular individuals are simply much more attractive to readers than stories about unidentified people. It is just human nature. And this is why, of course, even when reporting major disasters, journalists usually look for a story about how particular individuals are affected. Writing stories which capture the attention of readers is a matter of reporting technique, and the European court holds that article 10 protects not only the substance of ideas and information but also the form in which they are conveyed: News Verlags GmbH & Co KG v Austria (2000) 31 EHRR 246, 256, §[39] … More succinctly, Lord Hoffmann observed in Campbell v MGN Ltd [2004] 2 AC 457, 474, §[59], ‘judges are not newspaper editors’.

 

Parents’ right to petition Parliament: Southend case

 

In Southend Borough Council v CO [2017] EWHC 1949 (Fam) MacDonald J considered a case in which parents of two children on whom placement orders had been made had publicised information about them on Facebook and had organised a petition on Change.org.  (Whether the mother had appealed against the placement order was not entirely clear to the judge.) By the time he came to deal with the case the parents – representing themselves – had agreed to the local authority’s application that information be removed from Facebook and other media. However, the mother insisted on their right to pursue their petition ‘addressed to the United Kingdom Parliament and the Prime Minister’. The consequences of any such right for freedom of expression was the issue on which MacDonald J gave judgment.

 

MacDonald J described Change.org as a ‘website that allows people or organisations to start a petition. Once a petition is started, members of the public can sign the petition electronically subject to providing their first and last name, their email address and their postcode’ (§[9]). It has ‘community guidelines’ which include particular reference to safeguarding children and their protection.

 

The local authority based their application on their concern to protect a child’s private life. The mother wanted the petition to remain in place ‘so that she could have her say with respect to a decision that she does not agree with’ (§[16]).

 

After an extensive review of the law, the judge agreed with the mother. The reporting restrictions order remained to the extent agreed between the parties, but not including any restriction on the mother’s right by her petition to advertise her disagreement with the court’s placement order decisions.

 

Right to freedom of expression

 

On the facts of this case (not as a general approach to on-line petitions: §[66]) the judge set out his decision at §[62]. He balanced the rights of the parents to freedom of expression under Convention Art 10 (especially ‘parents who are the subject of state intervention being able to express their views about, the constitutional importance of the right to petition Parliament and the Government for redress with respect to a personal grievance and the importance of the ability of a parent to make clear who is speaking out or seeking to petition for redress’) against the Art 8 right of the children. He applied the ‘ultimate balancing test’ or proportionality (per Lord Steyn in Re S (Identification: Restrictions on Publication) [2004] UKHL 47, [2005] 1 AC 593, [2005] 1 FLR 591 at §[17]) and held that:

 

[62] … It cannot be said in this case that compelling the parents to take down their online petition directed at Parliament and Government, or compelling them to remove from the petition the mother’s name and the responses which utilise the forenames of the children, represents a proportionate response to the risk to the psychological integrity, personal development, development of social relationships and physical and social identity of the children presented by the limited amount of information concerning the children that the petition now contains.

 

Release of hearings documents

 

The third case is little more than a post-script in all this; but it provides a useful illustration of some of the points considered in ‘Release of court hearing documents’. What documents – when and why? – may a court release to non-parties. What rights to freedom of expression (European Convention 1950 Art 10) do parents have?

 

In Carmarthen County Council v Y and others [2017] EWFC 36 (30 June 2017), Mostyn J considered a preliminary fact-finding issue in children proceedings (the heading to the case hints that it is care proceedings, but he does not say so). This might have been clearer if Mostyn J had remembered – or been reminded by one of the nine barristers in court – of the following comment of his:

 

[4] For an exhaustively full account of the background reference should be made to the chronology prepared by junior counsel for the local authority, which has left no stone unturned. I am grateful for the preparation of that very useful document.

 

But this judge has already made clear that he does not consider that documents in family proceedings should be released (DL v SL [2015] EWHC 2621 (Fam) sub nom L v L (Ancillary Relief Proceedings: Anonymity) [2016] WLR 1259, Mostyn J at §[16]). In law, there are real question on this as explained in ‘Release of court hearing documents’ (above). Thus, in Appleton v News Group Newspapers Ltd [2015] EWHC 2689 (Fam); [2016] 2 FLR 1, Mostyn J was dealing with an application by the press for reporting restrictions to be lifted for the ancillary relief hearing of well-known musicians (and see Mostyn J in DL v SL [2015] EWHC 2621 (Fam); [2016] 2 FLR 552, also reported as L v L (Ancillary Relief Proceedings: Anonymity)  [2016] 1 WLR 1259). Save to a very limited extent (eg photographs of arrival at court) a reporting restrictions order was retained. Mostyn J [2015] EWHC 2689 (Fam) at [12] and [13], adopts Sir Mark’s “watchdog” role for the press:

 

[13] … Further the press are not allowed any access to documents whatsoever – see FPR  r 29.12. This is only consistent with a watchdog role, because without the documents the press can hardly be expected to be able to report the case intelligibly or even-handedly.

 

I think Lords Scarman and Bingham – and probably Sir James Munby P (see eg Norfolk County Council v Webster and Others [2006] EWHC 2898 (Fam), [2007] 2 FLR 415, Munby J – would have reminded Mostyn J of the importance of helping the press, in its ‘watchdog role’ – to make sense of proceedings. Transparency in the family courts remains a poor shadow of what it could be if – even if they are let in – the media and public can make no sense of the facts of what is going on.

 

And in terms of rights? The media have rights to freedom of expression as much as do parents to petition parliament; so long as, in each case, the children invloved remain anonymous.

How real are a child’s rights to be heard (2)?

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 [2016] EWCA Civ 1051, [2017] 1 WLR 1027 at §[18]); 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 [1985] UKHL 7, [1986] 1 AC 112, [1986] 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) [2016] EWCA Civ 12, [2016] 1 WLR 2469, [2016] 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) [2006] UKHL 51, [2007] 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 [2005] EWCA Civ 634, [2005] Fam 366, [2005] 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

 

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.