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

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A child’s views and Children Act 1989

 

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

 

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

 

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

 

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

 

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

 

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

 

Lawyers get the law wrong

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

Other forms of children application

 

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

 

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

 

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

 

‘Views’ of a child in English and Welsh law

 

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

 

1 States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

2 For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

 

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

 

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

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Children’s rights after Children Act 1989: Part 1

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Royal Assent for Children Act 1989: November 1989

 

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

 

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

 

This article looks at how the law in relation to children’s rights under the Act have moved in the thirty years since it received Royal Assent. Central to the subject of children’s rights is United Nations Convention on the Rights of the Child 1989 (the same year as the Act) whose Art 12 says:

 

1 States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

2 For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

 

Charter of Fundamental Rights of the European Union (2000/C 364/01), Art 24, goes a little further, by extending children’s rights expressly to actions of public authorities or private institutions. At the time of writing it is not clear for how long UK children will be directly entitled to protection from this Charter.

 

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

 

Legal developments in the run up to the Act

 

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

 

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

 

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

 

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

 

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

 

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

 

Birth of Children Act 1989

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

Listening to children

 

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

 

[57] … As any parent who has ever asked a child what he wants for tea knows, there is a large difference between taking account of a child’s views and doing what he wants. Especially in Hague Convention cases, the relevance of the child’s views to the issues in the case may be limited. But there is now a growing understanding of the importance of listening to the children involved in children’s cases. It is the child, more than anyone else, who will have to live with what the court decides…. Just as the adults may have to do what the court decides whether they like it or not, so may the child. But that is no more a reason for failing to hear what the child has to say than it is for refusing to hear the parents’ views.

 

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

 

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

 

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

 

‘A case about children’s rights’

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

Child rights: politics or law

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Judicial review and the ‘political arena’

 

In R (Wilson & ors) v The Prime Minister [2019] EWCA Civ 304 (4 March 2019) Hickinbottom Cave LJ recently commented of anti-Brexit campaigners and their failed attempt to appeal against a judicial review application, that the courts cannot be ‘concerned at all with the merits of leaving or remaining in the EU’. In R (Webster) v Secretary of State for Exiting the European Union [2018] EWHC 1543 (Admin), the court noted that Parliament had given the Prime Minister the power to give notification of withdrawal and a discretion as to when to do so. Any claim in relation to it ‘must be focused exclusively on the question of whether the Respondent has acted in accordance with the law’. The courts, said the Court of Appeal, were not concerned at all with the merits of leaving or remaining in the EU.

 

OK, but when does a judicial review application cease to be political so the court – on Wilson lines – will find it a matter of law and not of politics? That is a massive question, and depends on an appropriate definition of ‘politics’. For now this post is limited to the politics of children’s rights and their application in administrative law.

 

An inescapable fact is that judicial review is designed to challenge the government In the field of rights law that is obvious; and children’s right is no exception. A challenge on procedural ground may have little by way of politics to it; but as soon as you start to say a decision-maker on behalf of a government minister has acted unlawfully (see eg references to Courts Act 2003 s 75(5) later) or that a decision-maker is behaving unreasonably, then you are straying into politics. The closer the government minister is personally to the decision – one thinks immediately of the Home Secretary and Shamina Begum’s late child – the more the judicial review application becomes political.

 

I well remember a child support judicial review where a permission application was adjourned before Collins J. The case involved a non-resident parent (a father), Peter, who was overwhelmed by child support paperwork and whose second wife (Doreen) used to try to organise it. One day they were sitting at breakfast. Doreen opened a letter which told the reader – her – that Peter had recently fathered another child by another woman. It turned out the Child Support Agency had made this up; or muddled up two families.

 

The point at which I met them both Peter and Doreen were patching up the relationship which remained damaged after that Child Support Agency intervention; though there were other Child Support Act 1991 issues to resolve. The newspapers were interested in what had happened and the couple were invited to appear on television.

 

‘Go on get political’: Mr Justice Collins

 

Remarkably the only way to challenge figures given as arrears by the then Child Support Agency (now rebranded Child Maintenance Service) was – and still is, as far as I know – by judicial review (ie there is no appeals process which deals with arrears). Hence my appearance a few weeks later before Collins J. Something he asked me required me, I said apologetically, to get ‘political’. His reply? ‘Go on, do get political, Mr Burrows’….

 

He was no fan of the child support scheme. Of Child Support Act 1991 s 20(7)(a) (First-tier Tribunal appeals and factors the tribunal ‘need not consider’) he commented (in R (Starling) v Child Support Commissioners [2008] EWHC 1319 (Admin) (unreported)) that s 20(7) was ‘the most ill-drafted and obscure provision in the field of child support’ (at [36]).

 

Politics and judicial review

 

Personally, I cannot refer to subjects much wider than family law; though as the list below shows the palette is quite extensive. In terms of the family courts’ time and its resources substantial parts of the family lawyer’s work is concentrated in dealing with children law. Children law, by definition, has a variety of public (in the sense of administrative) law elements. These include:

 

  • Rights of children to be heard; which, where need be, may have to be enforced by judicial review since the rights extend to administrative decisions in relation to a competent child.
  • Legal aid (obviously and almost invariably); but how often is it granted for the less mainstream cases where people may really need the skills of a rights lawyer?
  • Court administration (especially equipment for vulnerable witnesses and court delays).
  • Appointment of Cafcass officers (this is often done unlawfully to the detriment of child’s rights; but family lawyers take no notice (and see Criminal Justice and Court Services Act 2000 s 12)).
  • Immigration and nationality (see eg Shamina Begum’s dead child: is that political?).
  • Housing (see recently R (JA and ors) v The London Borough of Bexley [2019] EWHC 130 (Admin) (1 February 2019), David Casement QC as a High Court judge).
  • Education and social services: secure accommodation and deprivation of liberty.
  • Local authority’s, care proceedings and Human Rights Act 1998 damages claims.
  • Adoption: the working of adoptions panels.

 

Child representation rules: ‘simple and simply expressed’; or truly ‘complex’?

 

One of the more glaring examples of family lawyers ignoring rights, is in relation to the rules under which we all practice. Start with the law which defines the powers (vires) of the Family Procedure Rules Committee which make the rules (Family Procedure Rules 2010) which govern how family proceedings are to work, namely Courts Act 2003 ss 75 and 76. It is enough just to look at s 75(5) to see how unlawful (ie wrong, illegal) many of these rules are. Section 75(5) says, beguilingly:

 

(5)Any power [which the rules committee has] to make Family Procedure Rules is to be exercised with a view to securing that—

(a)the family justice system is accessible, fair and efficient, and

(b)the rules are both simple and simply expressed.

 

Anyone – adult, child or local authority – who goes to court in relation to family breakdown, care or adoption proceedings needs to work within the parts of these rules which apply to a case; and for present purposes surely a child must know whether the child has a case at all? Logically, and in law, the rules should be ‘simple’, especially those which relate to representation of children in proceedings (ie FPR 2010 Part 16).

 

In fact the rules are written for lawyers in a style which was fashionable 25 years ago. The idea of children having ‘views’ which they might be entitled to express in proceedings which affected them was – then – a very new idea (as Children Act 1989 came in; and see eg Re CT (A Minor) (Wardship: Representation) [1993] 2 FLR 278, [1994] Fam 49, [1993] 3 WLR 602, CA). The concepts the rules try to deal with – intertwining private law case and care proceedings – are truly a muddle. Experienced judges find them ‘very confusing’ (to quote a 20+ year appointed family judge).

 

But imagine you are thirteen year old (say), or a little older, who has been with foster parents in care. You want to go back to live with your parents. How do you do this? What rules do you follow? Is there anyone who will help you? These questions are real. It comes from a case in the Court of Appeal from not so long ago, a case called Re W (A Child) (Care Proceedings: Child’s Representation) [2016] EWCA Civ 1051, [2017] 1 WLR 1027.

 

Fiona (not her real name) was sixteen. She was living with foster parents but she wanted to go home. The social workers did not agree with her. Eventually her case got to the Court of Appeal where Lady Justice Black (now Lady Black in the Supreme Court) called the rules which someone like Fiona has to negotiate are of ‘complexity’. Complex they were for a 30+ year experienced highly intelligent children lawyer. So what chance a non-lawyer; or a bright but not trained 14 year old?

 

Oh and even then, by the way, I think Black LJ and the lawyers in court with her all got the law muddled up, if you read her judgment. There was no requirement – in law – for the court to appoint a Cafcass officer in the first place: the recovery order to which Fiona was subject was not ‘specified proceedings’ which would have demanded a children’s guardian (ie Cafcass officer). And it was that appointment – because the Cafcass officer wanted to go in an opposite direction to Fiona, and (unlawfully) Fiona’s solicitor would not represent her – which lead to the appeal case. Fiona, following the appeal, was permitted after all that, to have her own lawyer.

 

Child rights: political or not? A challenge to rule-makers…

 

If experienced judges find the rules ‘very confusing’ or complex, by definition they are not ‘simple’. A lawyer for a child – ‘political’ or not – could with a little effort say to the Administrative Court that the rules in Part 16 are illegal. A High Court judge could be asked to send them back to the Rules Committee to make them simple. I would say that would include redrafting them in a form which the people for whom they are designed – children of say 13/14+ – can understand: is that a political point?

 

Certainly Part 16 must be untangled so that all of us, especially family judges, can have a fair crack at understanding what Part 16 says.

Human Rights Act 1998 and family law in 2019

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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….

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.