Human Rights Act 1998 and family law in 2019

20160419_173301

Tories and European Convention 1950

 

Recent press comment has gone back to concerns about the Tories getting rid of Human Rights Act 1998 (if they ever find time with all their Brexit distractions): . What does this mean, in the context (mostly) of family law?

 

I would hate to see our Human Rights Act 1998 being repealed; but I do not wish to sound complacent. In many cases, repeal of the Act is little more than a cheap political gesture – ‘sound and fury signifying nothing’ (Macbeth); well, nothing very much. If the Tories repeal the Human Rights Act 1998 in its entirety, not an enormous amount would change in most cases where European Convention 1950 principles are cited.

 

Human rights law

 

English human rights law (which is a much wider subject than the 1998 Act) is permeated by three deep running seams:

 

  • (1) Human Rights Act 1998 itself
  • (2) European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (‘European Convention 1950’)
  • (3) Common law

 

If the Act goes, the vast majority of each of law represented by these seams will remain and will be treated as part of our common law. For a recent example, see discussion of the term ‘likely’ after American Cyanamid v Ethicon [1975] AC 396 and Human Rights Act 1998 s 12(3) on the question of interim (yes, Lord Hain, ‘interim) injunctions in ABC & Ors v Telegraph Media Group Ltd [2018] EWCA Civ 2329 (23 October 2018). An interim reporting restrictions injunction was granted to complainants to protect their identity in relation to confidentiality agreements which all concerned had signed in exchange for, in the case of the complainants, substantial damages.

 

European Convention 1950 is deep in the psyche of most judges and other practising lawyers. It will outlast even the most sustained assault by any politician. It was drafted by leading English common lawyers after the Second World War. It has had an ineradicable influence on our common law.

 

Privacy: a human rights law for all

 

The example which is always mentioned by lawyers as to the influence of European Convention 1950 jurisprudence is the modern law of privacy: see eg Von Hannover v Germany – 59320/00 [2004] ECHR 294, (2005) 40 EHRR 1 through Campbell v MGN Ltd [2004] UKHL 22, [2004] 2 AC 457 to the very recent Richard v The British Broadcasting Corporation (BBC) & South Yorks Police [2018] EWHC 1837 (Ch) (18 July 2018), Mann J; mix in JK Rowling’s case for her son Murray v Big Pictures (UK) Ltd [2008] EWCA Civ 446,  [2008] 2 FLR 599, [2009] Ch 481 and you see how fundamental to our common law has been the influence of European Court of Human Rights law on our common law. That will not change; and it is likely that the developing tort of breach of privacy will survive any political attack on human rights.

 

But let it not be thought that this aspect of human rights law is just for ‘celebrities’ (whatever that word means). It is important for all of us. I act for a child who has just found out that her father has accessed, and has taken (without telling her), all her communications with solicitors who want to help her (‘hacked’ her computer?). He then produced the lot in court. That is a plain breach of respect for her private life by her father (European Convention 1950 Art 8); and it may deny her rights to a fair trial (Art 6: the emails contain material from solicitors instructed by her which are, on the face of it, covered by legal professional privilege).

 

Human rights and a ‘child’

 

A more public child rights case which shows the importance of balancing human rights principles is Re Roddy (A Child)(Identification: Restriction on Publication) [2003] EWHC 2927, [2004] 2 FLR 949 Munby J. This shows a judge who combines massive legal knowledge with very human principles and European Convention 1950. He applied thee to Angela Roddy’s wish to publicise her story about her treatment and that of her adopted child.

 

In 1999, when 12 years old, Angela became pregnant. In December 2003, when judgement was given, she was 17. Munby J ranged widely in his review of the law on competence of children following Gillick v West Norfolk and Wisbech AHA [1985] UKHL 7, [1986] 1 AC 112, [1986] 1 FLR 224 and of the rights of a ‘child’ of Angela’s ag; but also balancing the Convention of Angela against those of the media and of members of Angela’s own family, of her adopted child and of the child’s family. Judicial analysis like that will survive any assault on Human Rights Act 1998. With or without a clear statute on human rights, the common law will continue to recognise that child’s rights (which, in themselves, are recognised by United Nations Convention on the Rights of the Child 1989).

 

‘Ultimate balancing test’ and human rights

 

In a variety of contexts the Lord Steyn ‘ultimate balance’ test in Re S (Identification: Restrictions on Publication) [2004] UKHL 47, [2005] 1 AC 593, [2005] 1 FLR 591 will survive. He explained freedom of the press (Art 10) in a case which crosses over from criminal law (a mother as on trial for her assault on a small child), to children law (the mother’s anonymity was in issue before the House of Lords: should it be protected to protect her child? No said Lord Steyn); and affects media law and freedom of expression, open justice principles and so on.

 

Lord Steyn explained how a court should balance, one against the other, Convention Articles which conflict in a particular case:

 

[17] … First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test….

 

The value for all of us – adviser and judge alike – is of a set of factors to bear in mind (such as Articles in European Convention 1950: Arts 6, 8 and 10 in the case of Re S). And with those factors in mind the value of Lord Steyn’s balancing test cannot be overstated.

 

Even if you the politicians – legislature and executive alike – repeal the Human Rights Act 1998 the influence of European Convention 1950 running deep through the English common law will not go away. It is likely to survive the life-time even of the youngest reader of this post; and probably as long as the common law (ie the English High Court judiciary) lives on….

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Happy Christmas children of ‘understanding’: know your rights in 2019

20160419_173301Email to a mature child

 

Imagine a case where a 13 year old (Poppy) has been told she can only seek a second legal opinion if she asks the solicitor now in her case. That first solicitor has already said she thinks Poppy does not have enough ‘understanding’.  She wants to live with one parent, the solicitor recommends the other and will not represent Poppy’s views in court (as in eg Re W (A Child) (Care Proceedings: Child’s Representation) Practice Note [2016] EWCA Civ 1051, [2017] 1 WLR 1027). The judge says that any lawyer Poppy wants to see for an appeal may only have documents if the court permits it. Believe me, it could happen…

This is an email to Poppy who wants help on an appeal. Her new lawyer has assessed Poppy’s understanding as sufficient to give instructions and to be represented on where she should live.

The text could be used for any child where it is necessary to explain Gillick to the child.

 

Mrs Gillick and her five daughters

 

Hi Poppy

 

Why did the judge’s tell Mrs Gillick: your daughters can go on the pill without telling you? Why can her daughters talk to a doctor without Mrs G knowing? Can you talk to a lawyer about your case without your parent’s agreement? And why should mature children, like you, be listened to by judges where your parents are in court after separation?

 

Mr and Mrs Gillick had five daughters all under sixteen (in law, in UK, anyone under 18 is a ‘child’). She said none of the daughters should be able to have access to contraceptive advice – ie to go on the pill – without her parents’ knowing about it. The House of Lords (the UK’s most senior court) said she was wrong.

 

The health authorities – this was December 1980 – said a doctor can prescribe the pill without parents knowing. Mrs Gillick disagreed. She was the mother of five daughters under 16. She objected to the guidance. There was no suggestion that her daughters were asking for the pill: she objected as a parent.

 

The main speeches (ie judgments in the House of Lords) in Gillick were given by Lord Fraser and Lord Scarman. What they said is still the law nearly 40 years later. They explained how a child’s maturity and understanding changes as a child gets older. Parents must recognise this. So must the law. Lord Scarman (one of my favourite judges of all time) explained this:

 

The underlying principle of the law … is that 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….

 

Lord Scarman was saying: parents (and judges) must back off as a child gets older. As their ‘understanding and intelligence’ increases everyone – including parents and judges – must have more and more respect for these views.

 

‘Understanding’: what is to be understood?

 

Understanding also depends on what we are talking about: understanding of what you want to eat (ie not what you should eat) is well-developed for a very young child. Tiny children know what they don’t like. Lots of small children don’t like broccoli or cabbage. On the other hand an ‘understanding’ of physics may still be limited, even when you are much older (I can’t claim to have much of an ‘understanding’ of physics; but get me on history, and I’m much better).

 

Gillick applies not just to doctors and broccoli. It applies also when you are involved in court proceedings where your parents have separated. There are all sorts of English laws which say that a child’s views must be listened to by judges.

 

In a court case between parents about where a child should live (‘custody’ or ‘residence’), if a child is old enough to say what they think (express ‘a view’) they should be listened to. If they want to be listened to, this could be through a welfare officer or a lawyer (ie a solicitor).

 

The judge may not agree with what the child wants. That is a different question. But the judge must – for that is the law in England – listen to what a child has to say.

Children and private law: to claim the rights – Part 2

20160924_142217Procedure for a child’s application

 

The first post in this series outlines the rights of children and their views in proceedings concerning them. This part will look at court procedures procedure for how rights – a child’s ‘views’ – are dealt with as a court process; or how the rules – so far as they can be understood – deal with those views. Part 3 will look at how a child’s views are dealt with in practice, and what court procedure rules actually permits.

 

The law sources of information as to a child’s application are varied. They are statutory under CA 1989, in the rules (FPR 2010 and perhaps CPR 1998), in practice directions and in scattered case law decisions. Each of these sources has to be threaded into a coherent whole by the child – or the child’s adviser – who wishes to apply to the court. This note, as already explained, deals only with private proceedings (see part 1): that is, proceedings under Children Act 1989 (CA 1989) were children of ‘understanding’ wish to make an application, or to join in proceedings between their parents (eg to say to the court where they would like to live).

 

First, which court? Some family proceedings are issued in the Family Court, some in Family Division of the High Court. And don’t let anyone tell you we now have a unified family court, as this example shows.

 

Shortly after CA 1989 came into operation and children started making their own applications to the family courts the then President of the Family Division issued a practice direction which directed that children applications be in the High Court. Practice Direction of 22 February 1993 (Applications by children: leave), [1993] 1 WLR 313, [1993] 1 FLR 668 says:

 

Under section 10 of the Children Act 1989, the prior leave of the court is required in respect of applications by the child concerned for section 8 orders…. Such applications raise issues which are more appropriate for determination in the High Court and should be transferred there for hearing.

 

Given the final paragraph of the practice direction, it is likely that if a child wishes to apply to be joined in family proceedings that also should result in a case already before the court being transferred to the High Court.

 

A child’s views in section 8 proceedings

 

Next it is necessary to look at the types of case where a child may want to have their views heard in private proceedings.

 

(1) A child’s free-standing application in CA 1989 Pt 2 proceedings

 

In Re SC (A Minor) (Leave to Seek Residence Order) [1994] 1 FLR 96 Booth J was dealing with a 14 year old child who wanted to apply to live with the family of a long-standing friend. Booth J was quite clear that SC was entitled to make the application (rather than only the person with whom the child proposed to live) (at 100):

 

… The Act enables a child to apply for leave to apply for a s 8 order and a residence order is not excluded. In my judgment the court should not fetter the statutory ability of the child to seek any s 8 order, including a residence order, if it is appropriate for such an application to be made. Although the court will undoubtedly consider why it is that the person in whose favour a proposed residence order would be made is not applying, it would in my opinion be wrong to import into the Act any requirement that only he or she should make the application.

 

Application is made under CA 1989 s 10(2)(b) and (8)

 

(2)     The court may also make a section 8 order with respect to any child on the application of a person who— … (b) has obtained the leave of the court to make the application.

(8)     Where the person applying for leave to make an application for a section 8 order is the child concerned, the court may only grant leave if it is satisfied that he has sufficient understanding to make the proposed application for the section 8 order.

 

The child may pursue the application with a guardian (FPR 2010 r 16.4). This is the same as would be the case if she was taking ordinary civil proceedings by a litigation friend (CPR 1998 r 21.2), at least in theory. Because this is children proceedings it is more complicated than that.

 

Unlike in civil proceedings, a child can take proceedings under CA 1989 (see FPR 2010 r 16.6(1)) and do so without a guardian if the child has permission from the court or a solicitor is willing to accept instructions from her (FPR 2010 r 16.6(3)):

 

(3) [A child may take CA 1989 proceedings without a children’s guardian where] either –

(a) the child has obtained the court’s permission; or

(b) a solicitor –

(i) considers that the child is able, having regard to the child’s understanding, to give instructions in relation to the proceedings; and

(ii) has accepted instructions from that child to act for that child in the proceedings and, if the proceedings have begun, the solicitor is already acting.

 

This provision replaces one which was inserted into Family Proceedings Rules 1991 (introduced alongside CA 1989) to deal with s 10(8) applications (formerly FPR 1991 r 9.2A(1)), a provision which was explained by the Court of Appeal in Re CT (mostly in the context of what may be done if a person – a parent, perhaps, or the court – considers that the child does not have sufficient understanding to consult the solicitor (see below)). Till that question is raised – if at all – the child can conduct the proceedings represented by a solicitor as if she were a private client; just as the hypothetical child in Gillick v West Norfolk and Wisbech AHA [1985] UKHL 7, [1986] 1 AC 112, [1986] 1 FLR 224 could consult a GP about contraceptive advice as if a private patient.

 

(2) A child wants to apply to join in existing proceedings which directly concern the child

 

There is no doubt that a child can be joined as a party to proceedings which concern him or her (r 12.3(3)); but the procedure whereby that is achieved and by what criteria are not clear. By contrast CPR 1998 r 19.2 restates the common law:

 

(2) The court may order a person to be added as a new party if –

(a) it is desirable to add the new party so that the court can resolve all the matters in dispute in the proceedings; or

(b) there is an issue involving the new party and an existing party which is connected to the matters in dispute in the proceedings, and it is desirable to add the new party so that the court can resolve that issue.

 

Application is made in the existing proceedings (CPR 1998 r 19.5). In Mabon v Mabon [2005] EWCA Civ 634, [2005] Fam 366, [2005] 2 FLR 1011 the Court of Appeal dealt with three (of a family of six) children, whose views were not being independently represented by their children’s guardian. They considered they could no longer represented by him and consulted a solicitor. The judge refused to grant the application for separate representation (now under FPR 2010 r 16.6(5)). Thorpe LJ explained how the courts must adapt and recognise the development of children’s rights:

 

[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.

 

In agreement with Thorpe LJ, Wall LJ commented that the guardian ‘would be advancing to the judge’ for the boys a case which was ‘directly opposed to what the boys were actually saying’. By refusing representation to the boys – including a 17 year old – the first instance judge overlooked the need for them ‘to emerge from the proceedings (whatever the result) with the knowledge that their position had been independently represented and their perspective fully advanced to the judge’.

 

(3) A child whose instructions conflict with the child’s guardian; and the child wants his or her part in the case dealt with on the child’s instructions

 

In CA 1989 Pt 4 (care) proceedings it is relatively clear that a child can part company with her solicitor. If that happens FPR 2010 r 16.29 (which deals with solicitors appointed in care proceedings under CA 1989 s 41(3)) provides that:

 

(2) If a solicitor appointed [in care proceedings] considers, having taken into account the matters referred to in paragraph (3), that the child –

(a) wishes to give instructions which conflict with those of the children’s guardian; and

(b) is able, having regard to the child’s understanding, to give such instructions on the child’s own behalf,

the solicitor must conduct the proceedings in accordance with instructions received from the child.

 

Matters in para (3) include the views of the children’s guardian. If he or she is against (save on grounds of understanding) the child would normally prevail.

 

There is no equivalent provision in Pt 16 for private proceedings; but this situation is so close to that in r 16.29(3) and Mabon (above) that, I suggest, conduct of the case for the child in s 8 proceedings is likely to be ‘in accordance with instructions received from the child’ as in r 16.29(3). Some lawyers may disagree. There is no clear guidance that I can find for a child in the law or the procedural rules.

 

Clara and her solicitor

 

Imagine Clara from Part 1. Her case is under (2) above. Her parent’s case is already under way (like the Mabon boys). If she finds out that there is a way she can join in the proceedings and that she can find a solicitor to help her (with legal aid: assessed on her means (if any)), then the solicitor will have to assess her ‘understanding to give instructions’ (in the same way as under r 16.6(3)). Application can be made under FPR 2010 r 18.7 – an application in the course of proceedings – for an order that Isobel be joined. It will then be for the court to decide to what extent it takes into account her views (see eg Re D (A Child) (International Recognition) [2016] EWCA Civ 12, [2016] 1 WLR 2469, [2016] 2 FLR 347).

 

If she is introduced to a solicitor (eg by one or other of her parents, or by another relative) so be it. In S v S (Relocation) [2017] EWHC 2345 (Fam), [2018] 1 FLR 825 children of 15 and 13 were taken to see a solicitor (the duties of such a solicitor is considered at [31]-[32] in that case). Peter Jackson J (now a Court of Appeal judge; and ever a wise and perceptive children lawyer) reflected on the extent to which the court is entitled to question the wisdom (or not) of a course proposed by a child of understanding:

 

[23] … These boys are old enough to instruct lawyers to ensure that their wishes and feelings are fully represented. At their age, those wishes and feelings are a very important element in their welfare. That is so even if the wishes and feelings are unwise. There is nothing in the law that says that the wishes and feelings of older children should be wise or reasonable. They may be foolish or immature but respecting children’s points of view must, in the case of older children, accept to some extent the risk of them making mistakes…. This is not… the court washing its hands of the boys but, rather, taking a practical view of the real life of this family.

 

Is it appropriate for a solicitor to be instructed at all?

 

Finally, what of the position where a party or the court considers that the child may not be of sufficient understanding to consult a solicitor. That was considered by the Court of Appeal as long ago as May 1993 (when CA 1989 had been in force for less than 18 months). In Re CT (A Minor) (Wardship: Representation) [1993] 2 FLR 278, [1994] Fam 49 (where I represented CT as CA 1989 was bedding down on the statute book).

 

CT, aged 13, wanted to move from her adoptive parents to her natural family in South Wales. She needed my agreement to act (Family Proceedings Rules 1991 r 9.2A, the predecessor to FPR 2010 r 16.6(3)). With legal aid in place we applied for ‘leave’ (as then) under CA 1989 s 10(8). CT’s adoptive parents made her a ward of court which Thorpe J confirmed. She would be represented by the Official Solicitor. As she saw it, with 10p in a coin box in her school she could ring me. 10p gave her no time on the phone to the OS representative, even if he or she could be found. As a legal representative he was nothing to her. And anyway, as she said to Thorpe J after his decision (he refused to hear her beforehand): ‘I wants my own solicitor’.

 

Claire appealled against the wardship order of Thorpe J. In the Court of Appeal Waite LJ considered as one of the main issues whether assessment of understanding ‘is a matter for consideration by the court, or whether it is exclusively a matter for assessment by the solicitor who is deciding whether or not to accept instructions’ ([1993] 2 FLR 278 at 282). The court had allowed CT’s appeal. She should not have been made a ward.

 

But what of the judge’s anxieties which had led to wardship in the first place?

 

The result of ruling out wardship is that the judge will be left, at any future hearings of the case, with the same anxieties that led him to explore means of imposing a guardian ad litem in the first place. I have stressed that there has not so far been any suggestion that Mr Burrows is or may be incorrect in the view that he has formed, for the purpose of r 9.2A(1)(b)(i), that C is able, having regard to her understanding, to give instructions in relation to the proceedings. It seems to me, however, that it would be unhelpful to the judge – and for that matter to other judges who may find themselves confronted with a similar situation – simply to leave the matter there. A conclusion has to be reached on the question (to which I have already referred in passing) of who is to be the judge of the minor’s ability to give instructions?

 

The questions for the court on this aspect of the appeal were: was it for the solicitor alone to define the child’s understanding thus for the child to proceed alone; or can the court on its own initiative ‘or on the application of another party, to go behind the solicitor’s view and examine for itself the state of the child’s understanding and come to a conclusion which may differ from the view taken by the solicitor?’ Waite LJ preferred the second course. In cases of doubt about a solicitor’s assessment of a child’s understanding the court would have ‘the ultimate right to decide’ ([1993] 2 FLR 278 at 289). He hoped that the solicitor’s view of the child’s ability to instruct ‘would be rare’.

 

Clara’s way ahead

 

For Clara the first step will be to understand that she has rights and to get to see a solicitor and apply for legal aid. For the solicitor it will then be a matter of threading her or his way through the various forms of law, procedure and common law outlined in this article. And if anyone objects to Clara and her solicitor’s proposed course of legal action, they will need to dig out Re CT and follow it within the terms explained by Waite LJ.

 

And if Clara’s solicitor is to be shifted, that raises a whole fresh area of law. Questions of her ‘understanding to give instructions’ (FPR 2010 r 16.6(3)(b)(i); Gillick v West Norfolk and Wisbech AHA (above) and eg Re Roddy (A Child)(Identification: Restriction on Publication) [2003] EWHC 2927, [2004] 2 FLR 949 Munby J) arise. In law that involves a review of the case the court perceives are the issues in the case, and the child’s ability to understand; and must not be confused with welfare issues in the particular case (see eg Briggs LJ in Re W (A Child) (Care Proceedings: Child’s Representation) Practice Note (above); and see Children’s Views and Evidence by David Burrows, Bloomsbury Professional, 2017 at Chapter 2).

Private law rights of children: Part 1

20160418_164836-e1544888626602.jpgA child’s ‘views’ in the family courts

 

How many children know they have rights to ‘express their views freely’ in court proceedings – especially in family courts – where a court is making a decision which affects a child? And if they don’t know, how are they going to find out? Even if they do know about their rights, how do children get their views before the judge? What are the steps they must take to get what they want to say before the court?

 

This first post in a series of three will say a little bit about what rights there are for children. Part 2 will look at procedure for how rights – views – are dealt with as a court process. Part 3 will look at expression of a child’s views, wishes and feelings in practice, and what court procedure rules actually permits.

 

I don’t know what is taught about children’s rights in individual schools. As a family lawyer I have a good idea that children who are the subject of proceedings are told very little about what their rights are. Few judges, I suspect, go on the front foot to comply with the law and to find out themselves what a child’s views are. And I fear, many specialist family lawyers are not sufficiently versed in the intricacies of children law to know what they need to do to help children to apply in private law (Children Act 1989 (CA 1989) Pt 2) proceedings; or to be sure that a child talks to a judge when it is appropriate.

 

Children and Children Act 1989 Pt 2 proceedings

 

Children’s rights are likely to arise in private children proceedings (Children Act 1989 (CA 1989) Pt 2 and especially s 8). This will arise in three sets of circumstance explained in this article:

 

  • A child who wants to make a free-standing application, whether or not with representation (CA 1989 s 10(8); and as did CT in Re CT (below));
  • A child who wants to join in existing proceedings (with or without representation: eg Cambra v Jones (Contempt Proceedings: Child Joined as Party) [2014] EWHC 913 (Fam), [2015] 1 FLR 263, Sir James Munby P); or within existing CA 1989 Pt 2 proceedings (eg between the child’s parents), for the child to proceed alone or represented by the child’s own lawyer (eg Mabon v Mabon (below));
  • A child whose instructions to the child’s instructed solicitor conflict with those of the child’s guardian; and the child wants his or her part in the case to proceed on the child’s instructions (on analogy with FPR 2010 r 16.29(2)(a) for Pt 4 proceedings)

 

This article does not deal with CA 1989 Pt 4 proceedings (care and supervision orders; also called ‘specified proceedings’ (CA 1989 s 41(6)). There a children’s guardian and a solicitor for the child are appointed by the court (CA 1989 s 41(2) and (3)).

 

Many experienced children lawyers have difficulty in unravelling what type of children proceedings are involved in individual cases (eg Black LJ (now Lady Black in the Supreme Court) in Re W (A Child) (Care Proceedings: Child’s Representation) Practice Note [2016] EWCA Civ 1051, [2017] 1 WLR 1027: see Preface to my Children’s Views and Evidence by Bloomsbury Professional, 2017 https://www.bloomsburyprofessional.com/uk/childrens-views-and-evidence-9781526503176/  (and see Chapter 6)).

 

A child’s ‘views to be expressed freely’

 

United Nations Convention on the Rights of the Child 1989 Art 12, as relevant to a child’s views on a case, 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, on a child’s views, echoes the position on ‘views’: ‘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.’

 

In Re D (A Child) (International Recognition) [2016] EWCA Civ 12, [2016] 1 WLR 2469, [2016] 2 FLR 347 (the child was seven) Ryder LJ identified CA 1989 s 1(3)(a) as a ‘fundamental principle’ English law: that is ‘the ascertainable wishes and feelings of the child concerned’ in a case must be considered by a court. This provision said Ryder LJ is ‘mandatory’; though the court has a choice (ie a ‘discretion’) on the extent to which views are taken into account (see [38]).

 

Participation

 

A child is therefore entitled to ‘participate’ in the proceedings which are about her:

 

[44] … The 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 section 1(3)(a) CA 1989 like that in article 12(1) of the UNCRC 1989 relates to the weight to be put upon a child’s wishes and feelings, not their participation.

 

A child must have his or her views heard, but not necessarily followed. This was explained by Lady Hale of an eight-year old child in Re D (Abduction: Rights of Custody) [2006] UKHL 51, [2007] 1 AC 619 [2007] 1 FLR 961 where she said of D, now aged eight, who did not want to go back to Romania (as described by Lady Hale at [20]-[22]), how should his views be considered:

 

[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…. 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. Those who do listen to children understand that they often have a point of view which is quite distinct from that of the person looking after them. They are quite capable of being moral actors in their own right. 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.

 

A principle of ‘universal application’

 

To ensure every child participates in proceedings about that child the court must ask: how is the child to be heard? In Isobel’s case – says the UN – she is entitled to ‘express her views’, but how does she go about getting her views heard by the judge? Ryder LJ helpfully described hearing the child’s views as a ‘fundamental principle of procedure’; but how does that principle operate in practice? In Re D [2006] (above) Lady Hale said:

 

[59] … Children should be heard far more frequently [in Re D it was in Hague proceedings]. The only question is how this should be done. It is plainly not good enough to say that the abducting parent, with whom the child is living, can present the child’s views to the court. If those views coincide with the views of the abducting parent, the court will either assume that they are not authentically the child’s own or give them very little independent weight….

 

Lady Hale considered the ‘three possible ways’ (at [60]) of hearing a child’s views:

 

  • An interview with a CAFCASS officer, who is not only skilled and experienced in talking with children
  • The judge seeing the child
  • Solicitor representation.

 

Of the last Lady Hale said (at [60]):

 

… Only in a few cases will full scale legal representation be necessary. But whenever it seems likely that the child’s views and interests may not be properly presented to the court, and in particular where there are legal arguments which the adult parties are not putting forward, then the child should be separately represented.

 

So, imagine a child aged twelve: Clara. She does not agree in different ways with each of her parents. She does not want to live with her father as is being proposed by him to the court. A court welfare officer is ambivalent as to whether she should stay with her mother or her father. Clara says she wants to live, and spend more time, with her mother. She is content to see her father. On the basis of what Lady Hale says she should be separately represented.

 

Part 2 will consider the child who knows of his or her rights, and what she – Clara – does about claiming them. Part 3 will look at what practical arrangements are made for children and how these fit with the Convention and Charter expression of the rights.

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.

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