Representation of children and their rights

Law on child’s rights to representation and legal aid

 

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

 

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

 

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

 

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

 

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

 

[18] There was some divergence of view as to which precise part of Rule 16 FPR 2010 should be the focus of the court’s attention. This was explored during the hearing but I do not propose to go into the details because there was, in fact, agreement as to the “test” that determined whether or not FW was entitled to be separately represented. I should make clear that when I speak of FW being separately represented, this is a loose term not entirely reflecting the complexity of the scheme under section 41 of the Children Act 1989 and Rule 16 FPR 2010 [ie FPR 2010 Pt 16]. What I seek to convey by it is a situation in which FW separates from the children’s guardian appointed to represent her interests, and gives her own instructions to a solicitor, as occurred in the original care proceedings….

 

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

 

Four schemes for representation of children

 

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

 

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

 

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

 

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

 

Legal aid for child representation

 

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

 

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

 

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

 

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

 

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

 

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

 

David Burrows

31 August 2017

 

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Evidence of vulnerable witnesses

(1)        AM (Afghanistan) v Secretary of State for the Home Department

 

Fair assessment of vulnerability

 

As the report (with draft regulations attached) of Vulnerable Witnesses and Children Working Group (‘VWCWG’) continues to rot in the Lord Chancellor’s in-tray – or its resources implications to be embroiled with some Treasury austerity sub-committee – three cases concerning vulnerable witnesses and child law have been reported recently.

 

The first is an immigration case, but one which concerns a 15 year old Afghan asylum seeker and the assessment of his credibility in the administrative appeals tribunals. The Court of Appeal was unimpressed as to how he had been dealt with.  In AM (Afghanistan) v Secretary of State for the Home Department [2017] EWCA Civ 1123 (27 July 2017) the court commented on the treatment of evidence of child and vulnerable witnesses and held that a First-tier Tribunal (‘FtT’) ‘did not properly consider the impact of the appellant’s age, vulnerability and the evidence of [his] significant learning disability’ ([18]). They sent the case back for reconsideration. The Lord Chancellor was given permission to intervene. The main judgment (with which Gross and Underhill LJJ agreed) was given by President of the Tribunals (‘Ryder LJ’). All parties and the court agreed that the appeal should be allowed.

 

Asylum application by 15 year old Afghan

 

AM’s father was a member of the Taliban. After the father’s death AM travelled across Europe to UK and had claimed asylum. He was beaten up by Afghan police before leaving, and was threatened by them and by the Taliban in Afghanistan. He had a real fear of persecution.  It was said that he has mental health and psychological difficulties. The Secretary of State refused him asylum but granted leave to remain till 17½. Reasons for this included that his evidence was not credible.

 

The tribunal paper included a psychologist’s report which the FtT judge said had only been ‘drawn to his attention’ after the hearing. That said Ryder LJ was not true and was, in any event, ‘a wholly inadequate response to the content of the report’ which included ‘opinions about the appellant that were relevant to procedural fairness’ ([12]). AM’s appeal was rejected as was his appeal to the Upper Tribunal (‘UT’).

 

Ryder LJ considered that the psychologist’s opinion for the FtT was ‘appropriate’; and the FtT judge was not entitled, ‘effectively’, to ignore ([13]) them. He therefore concluded:

 

[16] In like manner to my conclusion at [13] I have come to the firm view that the UT judge took no sufficient steps to ensure that the appellant had obtained effective access to justice and in particular that his voice could be heard in proceedings that concerned him.  Procedurally, the proceedings were neither fair nor just.  That was a material error of law. The appellant was a vulnerable party with needs that were not addressed….  The parties agree.

 

Credibility and objective evidence

 

Central to the court’s view of the tribunal’s assessment of evidence was that the FtT judge looked at what he regarded as the ‘credibility’ of AM, rather than considering his vulnerability and looking at to other available ‘objective evidence’ first. He had an ‘obligation’ to ‘give precedence and greater weight to objective evidence and indicators of risk’ to AM, rather than to his personal credibility. These evidential factors must be reviewed ‘in light of [AM]’s age, vulnerability and learning disability’ ([19]). Had the tribunal properly considered its own practice direction and rules this error and the importance of AM’s age would have been clear to it.

 

The FtT and the parties are required to ensure that an appellant is able to participate fully in the proceedings. There is a flexibility and a wide range of specialist expertise which the tribunal can use to deal with a case fairly and justly.  Within the Rules themselves this flexibility and ability to override formality is made clear, said Ryder LJ. If this is not done there is a risk that any decision made by a tribunal will be ‘unlawful’; and this is especially so where – as here – the welfare of a child is in issue.

 

Ryder LJ reviewed the available tribunal practice directions on dealing with ‘vulnerable adults and sensitive witnesses’ ([31] and [32]): ‘failure to follow them will most likely be a material error of law’ ([30]).

 

 

(2)        Carmarthen County Council v Y

 

Evidence of an incapacitated witness

 

Carmarthen County Council v Y and others [2017] EWFC 36 (30 June 2017) relates to a preliminary fact-finding issue in children proceedings (the heading to the case hints that it is care proceedings). Two immediate problems arise. It is not clear till late in Mostyn J’s judgment what the primary application before the court is; though the preliminary facts issue is summarised as:

 

[1] … The facts in dispute are whether, or not, A repeatedly raped his daughter, Y, more than 20 years ago when she was under 16. It is said that the abuse continued after she turned 16.  A strongly denies the accusation. His wife B says that the allegation is impossible to believe, as does Y’s sister C. Y herself suffers from mental illness and has not participated in the trial. Her counsel take a neutral stance in relation to the allegations, as does the [children’s guardian].  The local authority submits that the accusation is true.

 

But to what application do these facts relate (the heading of the case refers to a child Z)? Z is introduced half way through the judgement at [24]. It becomes clear at [36] and [37] that she was born on 25 October 2011 and that she is the daughter of Y and therefore the grand-daughter of A. By the end of the judgement the implication that there are care issues in relation to Z becomes clear.

 

This might have been resolved by the second problem. Mostyn J tells the reader:

 

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

 

But this judge has already made clear that he does not consider that documents in family proceedings should be released (DL v SL [2015] EWHC 2621 (Fam) sub nom L v L (Ancillary Relief Proceedings: Anonymity) [2016] WLR 1259, Mostyn J at [16]). In law, there are real question on this (see eg ‘Release of court hearing documents’: ). As matters now stand ‘reference’ cannot now be made to the ‘useful document’. Both problems remain.

 

Issue of law: ‘a probability of 51%’

 

The issue of law relates to Y’s evidence. Such was her mental state that she could not be called at court; not be cross-examined on what she said on behalf of her father A (who was joined s a party in the proceedings). Such was the unreliability of what Mostyn J saw, he held that A could not be required to answer Y’s allegations, and that what she said should be treated as having not happened:

 

[44] The decision of the House of Lords in Re B (Children) [2008] UKHL 35 confirms what we all already knew, namely that if an allegation in relation to a past (as opposed to future) fact or event is not proved to a probability of 51% then it is treated as not having happened: see Lord Hoffmann at paragraph 2. The court may feel that there is a not fanciful (im)probability, say 25%, of the event having happened, but that mere suspicion, for that is all it is, entirely falls by the wayside….

 

That this evidence was from a vulnerable witness (though she was no longer a child) and that therefore whether it should have been seen in the light of other objective evidence of her credibility (if there was any: her mental state might be part of such a question), in accordance with AM (above) was not considered by Mostyn J. In fairness that decision was only handed down a couple of days before Mostyn J’s judgment. However, in AM at [19] Ryder LJ referred to older Court of Appeal authority (which would have been available to Mostyn J) namely Mibanga v Secretary of State for the Home Department [2005] EWCA Civ 367.

 

In Mibanga the Court of Appeal stressed the importance of reference to expert evidence to assist with an objective view of credibility. In that case Wilson J (sitting in the Court of Appeal and with whom Ward and Buxton LJJ agreed) said:

 

[24] It seems to me to be axiomatic that a fact-finder must not reach his or her conclusion before surveying all the evidence relevant thereto. Just as, if I may take a banal if alliterative example, one cannot make a cake with only one ingredient, so also frequently one cannot make a case, in the sense of establishing its truth, otherwise than by combination of a number of pieces of evidence. Mr Tam, on behalf of the Secretary of State, argues that decisions as to the credibility of an account are to be taken by the judicial fact-finder and that, in their reports, experts, whether in relation to medical matters or in relation to in-country circumstances, cannot usurp the fact-finder’s function in assessing credibility. I agree. What, however, they can offer, is a factual context in which it may be necessary for the fact-finder to survey the allegations placed before him; and such context may prove a crucial aid to the decision whether or not to accept the truth of them. What the fact-finder does at his peril is to reach a conclusion by reference only to the appellant’s evidence and then, if it be negative, to ask whether the conclusion should be shifted by the expert evidence….

 

Mostyn J says he read a massive amount of evidence. On the information of his judgment it is not possible to say what specific medical evidence in relation to Y that included; and therefore it is not possible to assess to what extent – in Mibanga and AM terms – he assessed Y’s credibility. He says first:

 

[6] As stated, Y has not given oral evidence. She is presently detained in a psychiatric hospital under the Mental Health Act. There is compelling, unchallenged, medical evidence that it would be very harmful for her to give oral evidence in court. A therefore has not had the opportunity of confronting his principal accuser, nor has the court had the opportunity of assessing under cross-examination the reliability of the evidence deriving from her.

 

Later in his Judgment Mostyn J says:

 

[40] In February 2016 Y was sectioned. She has been in a psychiatric unit ever since and is under close supervision. Her condition is truly pitiful in that she seems to wish to engage in self-harm at almost every opportunity. As I have stated above, the medical evidence is very clear – for her to give evidence or to participate in the proceedings could aggravate her condition considerably.

 

No more detail of the evidence or its assessment of Y’s credibility is attempted by the judge; nor, for example, does he ask why her mental capacity may be affected as it now is. He did not review how a witness in Y’s position might have been dealt with in the analogous position dictated for criminal trials under Youth Justice and Criminal Evidence Act 1999 Pt 2 (though it is likely he was not referred to that Act).

 

 

(3)        H v D (Appeal – Failure of Case Management)

 

A right to cross-examine?

 

The title of H v D (Appeal – Failure of Case Management) [2017] EWHC 1907 (Fam), Peter Jackson J gives a clue as to what is coming. In a convoluted series of hearings concerning a contact dispute, the first instance judge had attempted to protect the mother from direct cross-examination by the father of their child.

 

Peter Jackson J referred early in his judgment to the following:

 

[6] Where questioning by the court is for some reason not possible, the situation of the alleged victim may be entirely unsatisfactory: see for example the recent observations of Hayden J in Re A (a minor) (fact finding; unrepresented party) [2017] EWHC 1195 (Fam) at 57-63.

 

Neither he nor Hayden J (in Re A) seems to have been referred to the Court of Appeal case of Re K & H (Children) [2015] EWCA Civ 543 sub nom K and H (Private Law: Public Funding) [2016] 1 FLR 754, where Lord Dyson MR said in terms that if a judge considers that parent B should not cross-examine the other (A),  then the judge must make do and conduct the questioning of A for B (Matrimonial and Family Proceedings Act 1984 s 31G(6)) (and see per Lord Bingham CJ in R v Brown (Milton) [1998] 2 Cr App Rep 364 cited by Lord Dyson at [55]).

 

Peter Jackson J explains that in August 2015 – yes, 2015 – the matter was allocated to HHJ Kushner QC.  Her first task, said the judge, was to conduct a hearing of the mother’s allegations which were likely to have a strong effect on the welfare decision, whether proved or not. He went on: ‘[10] A broad survey of the events over the past two years makes very concerning reading.  It would be no exaggeration to say that practically no progress has yet been made;’ and he then lists 10 examples of why he was concerned at the lack of progress.

 

At the conclusion of all this, the circuit judge ordered that the father be permitted to cross-examine the mother. She then appealled against this decision; and, in the course of the appeal, advance an ‘additional ground of appeal, based upon the general failure of case management’.

 

Peter Jackson J allowed the mothers appeal, and sent the case back to another judge in the court appealled from. Perhaps his most controversial finding was that the father had no right to ‘cross-examine’ or ask questions of the mother ([21], first bullet-point). Directions had already been given to which the father did not object. The court had made ‘repeated orders (five in all) requiring [him] to put his questions in writing’. The father did not comply, ‘no sanctions were applied, and it was not until 7 March 2017 (Day 2 of the hearing), that he eventually produced a list of questions’ ([10](ii)). In fairness to Peter Jackson J, he perhaps treated that direction as sufficient to deal with F’s ‘right to cross-examine’.

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

A version of https://dbfamilylaw.wordpress.com/2017/08/08/how-real-are-a-childs-rights-to-be-heard/ with references

 

A child’s rights to express a view

 

UN Convention on the Rights of the Child 1989 Art 12 states that signatories must give children who are capable of forming their own views ‘the right to express those views’. A child must be given an opportunity to do this in ‘all matters affecting the child’ either through ‘a representative or an appropriate body’. Charter of Fundamental Rights of the European Union (2000/C 364/01) Art 24.1 says much the same thing.

 

This article asks how these rights are recognised in English law. The short answer is hardly at all; or not in any real way if the child does not find out about that child’s rights. If the child does find out or – in court proceedings – someone tells the child, it is very much a matter for the individual judge whether the child manages to express a view. As English law – as opposed to international rights laws – now stands, the right to express a view is not anywhere near as clear as Art 12 implies.

 

If a child wishes to express a view on the case and finds out about that right, the law on how to do so is a mess (described by one Court of Appeal judge as of ‘complexity’ Re W (A Child) (Care Proceedings: Child’s Representation) Practice Note [2016] EWCA Civ 1051, [2017] 1 WLR 1027 at §[18]); and mostly dotted around Children Act 1989 (CA 1989) and Family Procedure Rules 2010 (FPR 2010) Pt 16. And if a child wants legal aid, different rules and definitions apply so as to make the law more confusing still.

 

This is a truly disturbing state of affairs, given that – as the rules are drafted – it is intended that a child should be able to make her or his own application (FPR 2010 r 16.6); and yet experienced family lawyers (as the Re W case (above) shows) can be perplexed by the law.

 

UN Convention rights

 

The UN Convention Art 12 says the following:

 

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

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

 

The EU Charter at Art 24.1 says that ‘Children… may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity.’

 

As can be seen, both Articles place a positive duty on states to take children’s views into consideration; and to take steps to ensure this is done. So how is this dealt with in English courts where a child is of ‘age and maturity’ (or Gillick-competent, after the House of Lords case of Gillick v West Norfolk and Wisbech AHA [1985] UKHL 7, [1986] 1 AC 112, [1986] 1 FLR 224, which said that in matters of confidentiality and views a child of ‘intelligence and understanding’ must be listened to)? The legal term ‘child’ is used here as of anyone under 18 (CA 1989 s 105(1)); though the extent to which that ‘child’s’ views are considered will depend on the child’s maturity and the issue with which the court is concerned.

 

Mature child in court proceedings

 

This article is concerned with children in court proceedings, which are of five main types:

 

  • between a child’s family and a local authority who asks the court to find that the child is suffering ‘significant harm’ (care or ‘public law’ proceedings: CA 1989 Pts 4 and 5);
  • between a child’s parents (eg as to with which parent a child is to live or how much contact each parent is to have) (‘private law’ proceedings: CA 1989 s 8);
  • where a child wishes to make the child’s own private law application (CA 1989 s 10(8));
  • where a child wishes to be joined as a party in existing private law proceedings and to have something to say to the court; and
  • proceedings where a child has been brought to the United Kingdom by a parent and the other says the child has been abducted.

 

Each of these types of case has different court rules and legal aid definitions (legal aid will be left till a later article).

 

(1)        Public law proceedings

 

Mostly application of the rules in public law proceedings is quite clear. The child has a children’s guardian (CA 1989 s 41) and automatic legal aid. The court appoints a solicitor (or the mature child choses one: CA 1989 s 41(3)(a)). If the child disagrees with the view of the children’s guardian, she or he instructs the solicitor direct. The solicitor must act on the child’s instructions (FPR 2010 r 16.29(2)). Even that is not always clear to judges and lawyers as the Re W case (above showed). And I think the Court of Appeal in that case got the distinction between ‘specified proceedings’ (in Children Act 1989 s 41) and ‘special Children Act 1989 cases’ and ‘public law children cases’ for legal aid muddled up (see separate article).

 

(2)        Private law proceedings: parents’ application

 

Where one parent applies to a court for an order (a child arrangements order) for their child, and that child is of ‘age and understanding’ (which the Court of Appeal has said could be as young as 7: Re D (A Child) (International Recognition) [2016] EWCA Civ 12, [2016] 1 WLR 2469, [2016] 2 FLR 347) that child has rights under Arts 12 and 24.1; yet in practice it is a matter of hit-or-miss as to whether the court (the judge or someone else in the court administration) tells the child about this. It is likely only to arise if there is a contest, and the court appoints a court officer (‘CAFCASS’) to see the child and report to the court.

 

Yet, as can be seen from Art 12 (above), the child has a right ‘to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law’. This is not a matter for the judge to decide according to whim. Surely it means that in every case a child’s maturity must be assessed – even if only quite briefly – and that child be asked if they want to express a view? That does not mean the view will necessarily be followed (Re D (Abduction: Rights of Custody) [2006] UKHL 51, [2007] 1 FLR 961); but it must be a factor included amongst things considered by the court before a decision is made.

 

(3)        Child’s private law application

 

A child has the right, if of ‘sufficient understanding’ (CA 1989 s 10(8)) to instruct a lawyer and to make an application on her or his own behalf. This is dealt with under separate court rules, which deal both with how a child deals with the case through a solicitor or alone (FPR 2010 r 16.6). Legal aid may be available to the child in this type of application and the next (4).

 

(4)        Child joining in proceedings

 

Similar principles apply where a mature child wishes to be ‘joined’ (FPR 2010 r 12.12(2)(c)), and have a say, in a parents proceedings. A CAFCASS officer may have been appointed but the child may not agree with the officer’s views. In that case, as a highly respected family judge has said, it is essential that a child feels their independent view has been heard by the court (Mabon v Mabon [2005] EWCA Civ 634, [2005] Fam 366, [2005] 2 FLR 1011).

 

The child may be able to have a lawyer on legal aid (based on the child’s financial circumstances).

 

(5)        Child abduction proceedings

 

Special rules, some set out in Convention on the Civil Aspects of International Child Abduction 1980 (‘Hague Convention’) itself, require the courts by one means or another to take account of a child’s views before making an order. In practice there are specialist CAFCASS officers in London (where these proceedings are heard) who discuss a child’s views with her or him.

 

The child may be formally joined in the parents’ proceedings (and if so have a solicitor on legal aid); though separate joining in the proceedings by no means guaranteed.

 

Court procedure

 

Court procedure varies for each of the above categories. There is no clear definition of when or how a child’s views shall be considered. There is no clear definition of when a child must be told what her or his rights are and how this is to be done.

 

The President of the Family Division set up a working group over three years ago: the Vulnerable Witnesses and Children Working Group. The group has drafted new court rules (now over two years old) to answer some of the concerns in this article. The draft does nothing to clarify the procedures which already operate; nor to sort out the complex legal aid provisions which apply to children.

 

As far as I know there is no clear document which explains to mature children what their rights are when they or their parents are involved in court proceedings about them. Still less does the working group deal with how it expects children to be informed of their rights under the UN Convention and how children’s maturity should be considered by the court. Only then will the judge know whether a child’s views under Art 12 should be ‘expressed’ to the court; and only then can the judge start to consider how this should be done.

EU withdrawal – children’s rights to ‘express their views’

Children and EU Charter of Fundamental Rights: rights to be lost?

 

This article looks at children’s rights in legal proceedings which will go with EU withdrawal; and which can only be replaced if MPs specifically take steps to create new law. If I were an English child I would want more protection for my rights from the EU withdrawal repeal bill than is promised by English law as it now stands.

 

It is not always well-known that EU has its own human rights charter: Charter of Fundamental Rights of the European Union (2000/C 364/01) , much of which is modelled on the Convention for the Protection of Human Rights and Fundamental Freedoms 1950. In certain important respects it develops the European Convention 1950, especially in the field of children’s rights (which have no direct mention in the 1950 Convention).

 

The Charter will go with EU withdrawal; so will the children’s rights which it protects be replicated in English law – so far as English law is now different? In certain crucial respects it is fundamentally different as will be explained.

 

Under the heading ‘The rights of the child’ Art 24 of the Charter provides:

 

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.

 

Children’s views, according to age and maturity

 

This article looks at the meaning and effect of Art 24.1: ‘They may express their views freely. Such views shall be taken into consideration… in accordance with their age and maturity.’

 

United Nations Convention on the Rights of the Child 1989 Art 12  – by which UK will still be bound, so far its provisions are enforceable – is in similar terms to Art 24 of the Charter as to a child’s right to be heard in ‘judicial proceedings’: that is ‘to express… views freely’; and for them to be ‘given due weight [according to the child’s] age and maturity’ (Art 12.1).

 

In Re D (A Child) (International Recognition) [2016] EWCA Civ 12, [2016] 2 FLR 347 Art 24 was taken into consideration by the Court of Appeal. The question of a child being heard was raised to a ‘fundamental principle’ of English child law. In that case the Court of Appeal considered whether a Romanian court order should be enforced in UK where a child was not given ‘an opportunity to be heard’ on parental responsibility (ie in where he was to live). The child (aged 7 when the decision appealled against was made) had not been given this opportunity in Romania, as required by Brussels IIA Art 23(b), so his father could not enforce the order in this country. (Incidentally, the decision depended on reciprocal arrangements between the English and Romanian courts. This cannot be expected to survive Brexit. If families break up and go to different EU countries, with one of them being in the UK, family litigation will increase.)

 

‘Right to participate’ in proceedings about the child

 

In Re D Ryder LJ in the Court of Appeal treated the child as having ‘the right … to participate in the process that is about him or her’ (§44); but only because of EU legislation. He started his review of the applicable law from Brussels IIA and its recitals, and set out Art 24 in full (§[15]) which is incorporated into Brussels IIA. Every court must consider a child’s involvement in proceedings according to the context of the case.

 

In the search for ‘fundamental principles’ Ryder LJ started with Children Act 1989 especially the check-list of factors for considering court-ordered arrangements for children in s 1(3). This provision – which is central to English law on this subject and to this article – seemed radical when made law in 1989. Looked at in the light of EU legislation it has a somewhat shop-worn and conservative air. Section 1(3)(a) says:

 

(3) [When the court is considering 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);

 

 

This, said the judge in Re D [2016], was a ‘fundamental principle’ which no ‘parent can seek to avoid’ (§38). He concluded (emphasis added):

 

[44]   That is rightly an acceptance that 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 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.

 

In practice the questions of whether a child should meet a judge state a view to him or her is left to non-statutory GuidelinesGuidelines on Judges Meeting Children who are subject to Family Proceedings April 2010 [2010] 2 FLR 1872 – issued by an unofficial non-statutory body (albeit approved in case-law). It is now seven years old and states its purpose as being ‘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’. There is no reference to any rights for children; still less to either Art 24 (or to the UN Charter).

 

Child’s right to be heard: nothing to be ‘given’

 

If I were an English child I would want more protection for my rights from the EU withdrawal repeal bill than this. This is because of:

 

  • Children Act 1989 s 1(3) gives the court only an option to consider my views;
  • The Guidelines give me no reassurance that English judges realise that I have rights (if I want to express my views); not that they have the option whether or not to receive my views; and I would prefer that those rights, in statute, be referred to in statutory guidelines, not the informal 2010 Guidelines.
  • I am afraid my worries would not be made less by a speech of a leading family judge King LJ ‘Giving children a voice in litigation: are we there yet’ , a speech given in November 2016. If a child has rights, there is nothing for judges to ‘give’. Theya re entitled to have their voice heard say Art 24 and Art 12; but this is not what English law on its own says.

 

As to a child’s views and their weight in children proceedings, in Re D (Abduction: Rights of Custody) [2007] 1 FLR 961 the House of Lords was dealing with an 8 year old. Of that child’s views and his entitlement to have his point of view heard (which may be quite distinct from that of the person looking him) Lady Hale said:

 

[57]… Until the case reached this House, no defence based on the child’s objections was raised…. 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…. 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.

 

All of this – from Art 24 to Lady Hale’s views in Re D [2007] speak for a child’s right – emphasis on ‘right’ – to be heard. Just as the English judiciary have done so far, the wording of Children Act 1989 s 1(3)(a), as I read it, comes well short of a right. As the ‘guidelines’ say, it is up to the judge to decide: no question of a child’s ‘right’. By contrast the Charter of Fundamental Rights of the European Union (2000/C 364/01) Art 24 and 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 (‘Brussels IIA’) eg Art 23 each guarantee rights and participation. That will go with EU withdrawal unless it is reproduced in UK legislation. (And this is before we look at what will be lost to children and others involved with EU withdrawal with the loss of the reciprocal arrangements in Brussels IIA.)

Child’s evidence – Part 2: contact and domestic violence

Child welfare, contact – and a practice direction

 

In Re S (a Child) [2017] EWCA Civ 44 (as explained in Part 1 of this series) the Court of Appeal allowed one ground only of a mother’s (M) appeal. That ground related to whether or not her eight year-old son, A, may have been physically abused by his father (F). M did not oppose contact in principle but wanted it to be safe for the child. (Though represented below, the child seems not to have appealled, nor to have made representations in the Court of Appeal.) As reported in Part 1 the parents had a short relationship. In the court below the judge had found three of M’s allegations proved: controlling behaviour and violence exacerbated by drink. A last allegation was based on what A had told a family support worker, but which the judge had rejected; though the judge had not heard what the child had to say about what had happened.

 

This series looks at how European law deals with child issues arising in connection with this case; and hypothetical issues which arise from it where law reform is need or is under review, as follows:

 

  • Child’s rights and Art 24 – Considered in Part 1.
  • Domestic violence and contact with A – How should the present and proposed PD12J, Child Arrangements & Contact Order: Domestic Violence and Harm effect this case (again this practice direction was not mentioned specifically in Court of Appeal)?
  • Cross-examination of M had F been unrepresented – How might the cross-examination of M been dealt with had F been unrepresented before the judge? This subject is now proposed by the Secretary of State for Justice (Ms Truss) to be reformed.
  • Relocation to Ireland and further hearings about A – To be considered in Part 3.

 

Children’s fundamental rights

 

This article looks at the Re S case (above). It is considered especially from the point of view of the child; in the light of rights of the child under EU Charter law; and of recent reforms to existing UK statute law (especially Children Act 1989 (CA 1989) s 1).

 

Charter of Fundamental Rights of the European Union (2000/C 364/01) Art 24 on the ‘Rights of a Child’ states:

 

  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.

 

By contrast, PD12J (considered further below) requires consideration to be given to ‘Representation of the child’ as follows:

 

  1. Subject to the seriousness of the allegations made and the difficulty of the case, the court shall consider whether it is appropriate for the child who is the subject of the application to be made a party to the proceedings and be separately represented. If the court considers that the child should be so represented, it shall review the allocation decision so that it is satisfied that the case proceeds before the correct level of judge in the Family Court.

 

Amendments to Children Act 1989 s 1

 

Children Act 1989 s 1(2A) and (2B) were amended with effect from April 2014 in the context of the court dealing with the welfare of a child of a broken relationship as follows:

 

1 Welfare of the child 

(1)  When a court determines any question with respect to –

(a)the upbringing of a child;… the child’s welfare shall be the court’s paramount consideration….

(2A) A court, in the circumstances mentioned in subsection (4)(a)…, is as respects each parent within subsection (6)(a) 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.

(2B) In subsection (2A) ‘involvement’ means involvement of some kind, either direct or indirect, but not any particular division of a child’s time.

 

These ponderous amendments to a previously clear section are elaborated upon in s 1(6):

 

(6) In subsection (2A) ‘parent’ means parent of the child concerned; and, for the purposes of that subsection, a parent of the child concerned –

(a)is within this paragraph if that parent can be involved in the child’s life in a way that does not put the child at risk of suffering harm; and

(b)is to be treated as being within paragraph (a) unless there is some evidence before the court in the particular proceedings to suggest that involvement of that parent in the child’s life would put the child at risk of suffering harm whatever the form of the involvement.

 

Welfare of a child is to equated with involvement – direct or indirect (s 1(2B)) – of a parent in a child’s life (s 1(2A)); but not where that contact, on evidence before the court, ‘would put the child at risk of suffering harm’ (s 1(6)).

 

In its original form Practice Direction 12J – Child Arrangements & Contact Order: Domestic Violence and Harm (PD12J) was designed to deal with questions of domestic violence alongside contact. It was issued in 2008 in response to the first report of Women’s Aid into ‘Twenty-Nine Child Homicides’. It was re-issued to in its present form, at the same time as introduction of the Family Court and of the amendments to CA 1989 s 1. More background to this is explained at Cris Curley’s article ‘Domestic Violence and the Impact on Contact Re-examined’.

 

PD12J contact and domestic violence

 

PD12J sets out as its purpose (§2) that it is intended ‘to set out’ what should happen in relation to contact proceedings where domestic violence is admitted, or that a child or a party has experienced domestic violence by a parent; or that there is a risk of such violence. In its present form it accompanies the CA 1989 s 1 amendments referred to above; but there is little attempt to link what is set out in PD12J to the formal provisions Family Procedure Rules 2010 themselves in relation to domestic violence proceedings (Family Law Act 1996 part 4 and FPR 2010 Part 10).

 

Amendments are now proposed in a report prepared by Cobb J for the President of the Family Division, ‘Review of Practice Direction 12J FPR 2010’  (18 November 2016). This may provide a move away from what has been seen under s 1(6) as ‘contact at all costs’ with a new §4 (see below) which displaces the presumption where contact could place a child at risk or the other parent’s life at risk, or either at significant harm. Law reform is needed here; but in what terms should this be done and by what means in law should it be achieved?

 

In an attempt to improve the position of children where domestic violence has been proved Cobb J proposes as follows:

 

  1. Where the involvement of a parent in a child’s life would put the child or other parent at risk of suffering harm arising from domestic violence or abuse, the presumption in section 1(2A) of the Children Act 1989 shall not apply. The Family Court presumes that the involvement of a parent in a child’s life will further the child’s welfare, so long as the parent can be involved in a way that does not put the child or other parent at risk of suffering harm.

 

A footnote to this paragraph explains:

 

The statutory presumption in section 1(2A) CA 1989 applies ‘unless the contrary is shown. Where the involvement of a parent in a child’s life would put the child or other parent at risk of suffering harm, then it is suggested that the contrary would indeed be shown. Paragraph 4 has been re-worked in order to give prominence to the avoidance of risk of harm.

 

Thus it is proposed that a practice direction should put a gloss on the law not provided for by Parliament.

 

Practice direction and law

 

A practice direction can neither create nor change the law. In that sense it is not law. It is there to guide procedure. In Secretary of State for Communities and Local Government v Bovale Ltd and anor [2009] EWCA Civ 171, [2009] 1 WLR 2274  the Court of Appeal considered whether a judge could make a practice direction or issue practice guidance. They explained what a practice direction is – now issued by the President of the Family Division with approval of the Lord Chancellor (Courts Act 2003 s 82).

 

The particular significance of this is that if an abused parent or child goes to court thinking that the new practice direction protects them, they may find that a judge is persuaded by the other parent that it does not. The judge may take the view that a practice direction cannot tell a court to ignore the law (as the proposed new §4 seems to do). This similar, though in different scale, to the Supreme Court telling the Prime Minister that she could not ignore Parliament and must have a bill for UK to leave Europe.

 

Thus, in Bovale, the Court of Appeal assumed that the function of a practice direction was subsidiary to and supportive of a rule which already defined procedure:

 

[36] … We accept that one object of the practice directions which supplement the rules is to provide guidance to litigants but they also contain directions as to the procedure that should be followed.

 

Children must be protected, especially where the court has evidence of their harm; but if this is to be done by restrictions on or refusal of contact this affects the rights of a parent and of the child. It must be done in a way which complies with law and brings the law in a fait way within the terms of Art 24(3) of the Charter (above). If it is to be said that, as a matter of law, ‘the contrary is shown’ (per CA 1989 s 1(2A)) and that the ‘involvement of [a] parent in the life of the child concerned’ may inhibit a child’s welfare, a statutory presumption is overridden by a practice direction. Thus where – as in Re S violence may be proved against him (it has been proved against A’s mother) – then those allegations must be stated in an Act of Parliament as the basis for findings under s 1(6); and the problems of the parents (mostly women) and children affected must be given the dignity in statutory provision (which does not include a practice direction) which their difficulties demand.

 

And the attempted change of the law must not, please, be left to be exposed as not-law by a violent father. That would enhance the abuse still further.

 

Further abuse by cross-examination

 

Abuse by cross-examination in family courts   looked at the issue of the experience – mostly of women – being cross-examined by an unrepresented former partner, against whom abuse is alleged. It was said by the all-parliamentary group which had reported in October 2016 whose report was considered there:

 

Women and children’s experiences of domestic abuse do not end when the relationship with their abuser ends…. Many women report feeling re-victimised and re-traumatised through the family court process, they can find it difficult to access formal legal advice and representation, and now routinely end up being cross-examined by their abuser when they are representing themselves in court as Litigants in Person.

 

Cobb J’s report proposes an addition to §28, which deals with the hearing of any contact issue:

 

  • The judge or lay justices must not permit an unrepresented alleged abuser to cross-examine or otherwise directly question the alleged victim, and must not require an unrepresented alleged victim to cross-examine or otherwise directly question the alleged abuser.

Victims of violence are likely to find direct cross-examination by their alleged abuser frightening and intimidating, and thus it may be particularly appropriate for tThe judge or lay justices may to conduct the questioning on behalf of the other party in these circumstances, in order to ensure both parties are able to give their best evidence

 

The article went on to look at measures which could be used to alleviate this issue on analogy with what is to be found in Youth Justice and Criminal Evidence Act 1999 (YJCEA 1999). Where domestic violence is alleged where contact is in issue the question and court proceedings there are therefore two immediate issues:

 

  • To ensure that it is not necessary for a complainant (A) or the child(ren) concerned (C) to be submitted to cross-examination by the alleged abuser (B); and
  • If A wishes to cross-examine B, and she does not have legal representation, to ensure that cross-examination for her is carried out fairly by someone else who is suitably qualified.

 

This article considers the question of cross-examination in person of C by B (the subject of cross-examination of A is dealt with in the article referred to and is now proposed for reform by the Secretary of State for Justice).

 

The analogy with criminal proceedings must be pursued. There a witness in C’s position is protected (YJCEA 1999 Part 2 Ch 2). The court may – sometimes must, by law – provide protection by imposing an advocate on the unrepresented B (who would otherwise have the right to cross-examine: European Convention 1950 Art 6.3(c)) to cross-examine a victim (s 38(4); and see Evidence in family proceedings by David Burrows (2016, Family Law/LexisNexis) at Ch 8 ). The court appointed advocate has no ‘responsibility’ to the accused (s 38(5); Criminal Procedure Rules 2015 Part 23). The advocate is paid from public funds (s 40).

 

Cross-examination of the child

 

Dealing with a child’s evidence – as could be the case with the child A in the Re W case – calls for sensitive case management and special attention by the court. If it were to be approached as in criminal proceedings, it will call for public funding (now under review by the Ministry of Justice).

 

For children giving evidence in criminal proceedings YJCEA 1999 s 34 reads:

 

No person charged with a sexual offence may in any criminal proceedings cross-examine in person a witness who is the complainant, either—

(a)in connection with that offence, or

(b)in connection with any other offence (of whatever nature) with which that person is charged in the proceedings.

 

YJCEA 1999 Part 2 Ch 2, as its heading asserts, is designed to provide ‘Protection of witnesses from cross-examination by accused in person’. YJCEA 1999 s 38(4) deals specifically with cross-examination of a defence witness, which is prohibited as far as the defendant personally is concerned. It provides that an advocate ‘must’ be appointed to cross-examine to protect a witness, where the various forms of allegation of abusive situation in ss 34-36 apply:

 

(4) If the court decides that it is necessary in the interests of justice for the witness to be [cross-examined other than by accused in person], the court must appoint a qualified legal representative (chosen by the court) to cross-examine the witness in the interests of the accused.

 

YJCEA 1999 s 38(5) says that the advocate is ‘not responsible’ to the defendant, which must be taken to mean that, as for any advocate, his/her duty is to the court and that he must, in fairness to both complainant and the defendant, do his/her best in objective terms to secure for both a fair trial; but s/he has no client and takes direction from the court. Procedure for appointment is set out in Criminal Procedure Rules 2015 (‘CrPR 2015’) Part 23.

 

Payment is by public funds. YJCEA 1999 s 40 (as an insertion to Prosecution of Offences Act 1985 s 19(3)) says – with no fuss, and under the heading ‘Funding of defence representation’:

 

… To cover the proper fee or costs of a legal representative appointed under section 38(4) of the Youth Justice and Criminal Evidence Act 1999 (defence representation for purposes of cross-examination) and any expenses properly incurred in providing such a person with evidence or other material in connection with his appointment.

 

Much may already be possible under the common law says Lady Hale (Re W (Children) (Abuse: Oral Evidence) [2010] UKSC 12, [2010] 1 FLR 1485  (a case involving evidence from a 14 year-old child witness) the family courts can act (italics added):

 

[28] There are things that the [family] court can do but they are not things that it is used to doing at present. It is not limited by the usual courtroom procedures or to applying the special measures by analogy…. One possibility is an early video’d cross examination…. Another is cross-examination via video link [or] putting the required questions to her through an intermediary. This could be the court itself, as would be common in continental Europe and used to be much more common than it is now in the courts of this country.

 

Child’s rights: contact and domestic violence

 

In R v Lubemba & Ors [2014] EWCA (Crim) 2064, [2015] 1 WLR 157 the Court of Appeal (Criminal Division) was concerned with the evidence of another 8 year old (C). A judge had decided to refuse to hear in criminal proceedings. JP was one of two accused whose convictions were under review in the Court of Appeal, Criminal Division in that appeal. He had been convicted on three counts of sexual assault on C. Special measures directions had been given as Hallett LJ explained:

 

[9] … The child’s video interview, in which she gave a clear and concise account, was to be played as her evidence-in-chief and she was to be cross-examined by defence counsel, Mr Bennett, using the live link. He undertook to limit his questioning and to conduct his cross-examination in accordance with the Advocate’s Gateway Toolkit. All parties agreed that [C], described as an intelligent and capable witness, was willing and able to attend court to be examined and that the services of an intermediary were not required.

 

On day of the hearing, C attended court to be cross-examined over the live-link (YJCEA 1999 ss 18(1) and 24). The prosecuting barrister took defence counsel – both, not doubt, without wigs and gowns (YJCEA 1999 s 26) – to meet C. She was with her parents and both counsel thought she was content to give evidence. After this, and on his own, the judge went to see C and then announced to the court that C was unable to participate in the proceedings. Her only evidence was the video. She could not be asked any questions by the defence. Her parents gave evidence.

 

JP appealled on the ground that, because the judge had prevented any attempt at C being asked any questions he had not had a fair trial. His appeal was allowed. Of children giving evidence generally the Court of Appeal in R v Barker [2010] EWCA Crim 4  (per Lord Judge LCJ) said:

 

[42] The trial process must, of course, and increasingly has, catered for the needs of child witnesses, as indeed it has increasingly catered for the use of adult witnesses whose evidence in former years would not have been heard, by, for example, the now well understood and valuable use of intermediaries. In short, the competency test is not failed because the forensic techniques of the advocate (in particular in relation to cross-examination) or the processes of the court (for example, in relation to the patient expenditure of time) have to be adapted to enable the child to give the best evidence of which he or she is capable. At the same time the right of the defendant to a fair trial must be undiminished (emphasis supplied).

 

Call for law reform

 

Both areas of court process – contact arising from alleged violence and what proved violence requires in relation to contact – call for urgent law reform. That must include, on both points, reform of statute law. This will reflect the need for funding if alleged perpetrators are to cross-examine complainant of child witnesses in person. If statutory presumptions are to be altered for the protection of the children concerned, then this cannot be by practice direction. That is not enough if a parent against whom CA 1989 s 1(6) imputations are made against him/her who validly objects to what the proposed PD12J para 4 seeks to do.

 

And when all this is fully reformed, the Minister of Justice is urged to tell the Family Procedure Rules Committee that a practice direction is not sufficient to reform procedure. It must be as part of Family Procedure Rules 2010; it must span those parts of the rules which deal with children proceedings and with proceedings for domestic violence (FPR 2010 Part 10 and 12); and it must reflect the EU Charter and must take account of children’s evidence and views ‘in accordance with their age and maturity’ (Art 24(1) of the Charter).