Hearing the child in family courts: legal aid and recent cases

A child’s views according to age and maturity

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In ‘Hearing the child in family courts’ I summarised the law in England as to a child’s views being heard in family courts. This included a review of operation of United Nations Convention on the Rights of the Child 1989 Art 12 and Charter of Fundamental Rights of the European Union Art 24. It will be recalled that Art 12 provides (as does Art 24 in similar terms):

 

  1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
  2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

 

It is clear that our procedural law deals with it in a muddled way; and, I believe, in a way which is not fair to older children. All children involved in care (‘public law’) proceedings (whatever their age) are automatically made parties (in what are called ‘specified proceedings’: Children Act 1989 (CA 1989) s 41(6)). This does mean their views will be put before the court since they will be represented by a children’s guardian who must represent their ‘best interests’ not necessarily what they want. The muddle this can create can be seen in Re W (A Child) (Care Proceedings: Child’s Representation) Practice Note [2016] EWCA Civ 1051, [2017] 1 WLR 1027 where, I think (see preface to my Children’s Views and Evidence by David Burrows, Bloomsbury Professional, 2017 https://www.bloomsburyprofessional.com/uk/childrens-views-and-evidence-9781526503176/) even Black LJ (now Lady Black) got the law wrong.

 

It is certainly the case that the term ‘children’s guardian’ has two meanings (see definition under Family Procedure Rules 2010 r 2.3(1)), as between care proceedings (already mentioned) and under FPR 2010 r 16.4 where the children’s guardian acts in the same way as a ‘litigation friend’ in civil proceedings: ie pursuing a case on instructions form or otherwise in the interests the child. If lawyers of the calibre of Lady Black can get it wrong what hope the unrepresented child whose future is being decided by the court?

 

Legal aid

 

It must please be recalled by any judge who considers joining a child, that based only on the child’s own means, they will be entitled to legal aid (Legal Aid Sentencing and Punishment of Offenders Act 2012 Sch 1 para 15) where they are a party. There will be cases where the court will be helped by at least one party having representation. Quite legitimately there are cases which would fall into this category which now are being overlooked by the family courts.

 

Parents and children in care (‘specified’) proceedings have legal aid (regardless of means or the merit of their case); but that is not directly under consideration here.

 

Children’s views and private proceedings

 

The extent to which courts in non-care proceedings take into account children’s views is an extensive subject. Following on from my ‘hearing the child’ post I thought I would briefly analyse the private cases (ie not ‘specified proceedings’) reported over the past few months (September till now) and to see where children’s views appear to have been taken into account. In Re D (A Child) (International Recognition) [2016] EWCA Civ 12, [2016] 1 WLR 2469, [2016] 2 FLR 347 (mentioning in the last post) the Court of Appeal felt that a child of seven, David, should have been given the opportunity – that is, if he wanted it – to be heard; so I have treated seven as the lower age for ‘age and maturity’. Cases which do not include a 7+ year old child have been excluded. I have added a couple of rogue cases – judicial review and Herefordshire – at the end where views may be appropriate.

 

I can only go on what is reported, so if I am wrong – one way or the other – about a child being heard, I can only apologise. I have tended to assume if they are not joined as parties that court is unlikely to hear views; but I realise that may be unfair to the judges. I have merely listed the cases, one-by-one and not tried to make any deductions from the modest sample.

 

I suspect, however, that where children are joined they may not necessarily have their views expressed to the court or be told they can see the judge if they want to; but that will not necessarily be clear from the report.

 

The private law (non-care) cases over the past seven months divide roughly equally into those where 7+ year old children are joined as parties; and those where they were not joined.

 

Children as parties

 

S v S (Relocation) [2017] EWHC 2345 (Fam) (14 September 2017), Peter Jackson J – Order for children (15 and 13, who were separately represented and joined as parties) to live with their father in Switzerland. The children’s solicitor was paid for by the father. The case was characterised by the judge making a substantial order for costs against the father even though his application had ‘succeeded’. Of the difficult role of the child’s solicitor he said:

 

  • As a matter of general principle, parental right yields to the child’s right to make his own decisions when he reaches a sufficient understanding and intelligence to be capable of making up his own mind on the matter requiring decision, Gillick v West Norfolk and Wisbech Area Health Authority[1986] AC 11, Lord Scarman at 186;
  • On familiar principles, a child has an Article 8 right to respect for their privacy in the setting of client/professional information;
  • A child has a right to confidentiality in the same setting; and
  • The entire area of a child’s Article 12 UNCRC right to participation in proceedings concerning them is one that continues to evolve, Re W (A Child) [above], Black LJ at [26] and Re F (Children)[2016] EWCA Civ 546, Sir James Munby P at [41].

 

FE v MR & Ors [2017] EWHC 2298 (Fam) (14 September 2017), Baker J – The children were A (born 14 October 2003) and J born 1 December 2006). The case concerned the Council Regulation (EC) No 2201/2003 on jurisdiction for recognition and enforcement of family court orders (Brussels IIA) Art 15, which enables the court of a member state (a requesting court) to request another to transfer a case from another member state’s court to the requesting court ([26]) in exceptional circumstances and where the requesting court ‘would be better placed to hear the case’ (Art 15.1).

 

A was joined by Holman J in November 2016 and her children’s guardian was to aske J if he wanted to be joined. He was subsequently joined. Both children had full access to an ability for their views to be expressed.

 

N v J (Power to Set Aside Return Order) [2017] EWHC 2752 (Fam) (3 November 2017), MacDonald J – The High Court has jurisdiction (under Family Procedure Rules 2010 r 4.1(6)) to set aside its own orders (ie other than on appeal: Senior Courts Act 1981 s 17) where there has been a material change of circumstances and where to do so ‘goes to the welfare of the child ([69]); though in this case the judge refused to exercise his discretion to set aside.

 

The children G, aged 14, and H, aged 11 were (1) respondents to proceedings under the CA 1989 commenced by their father, and applicants in proceedings under the inherent jurisdiction through their children’s guardian. In the inherent jurisdiction proceedings the mother – with whom the children were living in the US – unsuccessfully asked the judge to set aside a return order.

 

B and C (Change of Names: Parental Responsibility: Evidence) [2017] EWHC 3250 (Fam) (12 December 2017), Cobb J – The children in this case were wards aged 13 and 8, and were represented by a Cafcass children’s guardian. There had been serious violence by their father to children and wife/mother – in Iran; and earlier non-molestation order and CA 1989 proceedings. The wardship proceedings proceeded in the father’s absence after service by email. The judge ordered that the case could continue without F having notice of certain of the evidence. The mother sought and was granted:

  • Absolute restrictions on F’s parental responsibility in respect of the children
  • F not to have any contact
  • F not to come within 100m of where mother is present
  • Mother can change children’s names
  • Injunction orders already made to continue
  • Wardship discharged

 

R (J and L) v London Borough of Hillingdon [2017] EWHC 3411 (Admin) (21 December 2017), Nicklin J is mentioned merely to record that the judicial review application made here for an eight-year old was made in the joint names of him and his mother, J is a single mother with a disabled 8 year old son. The Administrative Court dealt with an application to determine whether L was a child in need under Children Act 1989 s 17 and in relation to safeguarding for him under Children Act 2004 s 11 and Working Together, 2015. The local authority had failed to provide this response and must do so.

 

Re J (Children) [2018] EWCA Civ 115 (6 February 2018) – A married couple with three children (represented by NYAS; and who said they did not want to see their father) were involved in non-molestation order and contact proceedings. The court delayed for over a year in dealing with contact; but made no findings on any of the allegations and counter-allegations of abuse. A father’s appeal that the non-molestation order was allowed to run without determination of facts, and no findings of fact had been made was allowed. But too late: the court could not override the children’s wishes.

 

This case shows a series of delayed and poor case management. The children’s stated wish not to see their father does not seem to have been seriously tested by the courts. The father’s appeal was partly allowed, but no order made largely because of the delays. Although the children’s views were taken into account, they do not seem to have seen any of the judges.

 

P v C & Ors [2018] EWHC 693 (Fam) (28 March 2018), Russell J – A claim of a father (P) (Swedish and living in Sweden) for his children to live with him. C had appeared to alienate the children, who were both represented (aged 14 and 12), but seemed to have relented (though still opposed P’s application, as did the children). In an earlier judgment Russell J found significant harm, and on the Guardian’s recommendation made a supervision order, without any application by the local authority and over the social worker’s recommendation for a family assistance order.

 

The words of CA 1989 s 31(1) suggest it is not possible to make a supervision order without a formal application from the local authority. Russell J’s order must perhaps be accounted unusual. Had there been a formal application if he had wanted it the unrepresented father would have had legal aid. (It is not possible to tell from the report if other parties had legal aid.)

 

Children not (or not obviously) joined

 

Re LG (Re-opening of Fact-finding) [2017] EWHC 2626 (Fam) (3 October 2017), Baker J concerned a contested hearing of a contact application dealt with by justices, and sought to be renewed by the mother before a circuit judge following convictions of the father affecting her and her children. The children included a child of the family aged 7 (born on 9 March 2010). On appeal Baker J sent the mother’s application to another judge. In principle the child should be asked for her views – and ‘opportunity to be heard’. It is unlikely she will have been asked what she feels about contact and whether she will want to talk to the re-hearing judge – where magistrates’ had doubted the credibility of the mother, it was wrong for the judge hearing a child arrangements order application by the father substantially to ignore his later criminal conviction.

 

Egeneonu v Egeneonu [2017] EWHC 2451 (Fam) (30 August 2017), MacDonald J – A mother applied for committal for breach of orders in wardship by the respondent father (F) of their three children (now aged 15, 12 and 10, and retained by him in Nigeria for over 4 years). F applied to adjourn the committal (heard as Egeneonu v Egeneonu [2017] EWHC 2336 (Fam) (below)) to instruct yet further solicitors. On a committal application it was fundamental that a party – the father, in this case – be represented ([28], especially (c); and [32](b)). Unless there was evidence of extreme unreasonable behaviour in his further change of representation or any other reason the case should be adjourned ([29]).

 

In their absence, not surprisingly, the children seem not to have been join joined.

 

Re T (A Child) [2017] EWCA Civ 1889 (23 November 2017) was a local authority non-molestation order under Family Law Act 1996 Pt 4, for a child (aged 10) for her protection whilst with foster carers, and against her mother and cohabitant. She does not appear to have been formally a party in the Court of Appeal. These are not specified proceedings. The appeal established that it is beyond doubt that a local authority can apply for a non-molestation. Perhaps it can be assumed that T should not have been involved in the proceedings; and certainly this type of application is not specified (care/public law) proceedings under CA 1989 s 41.

 

Re M (Children) [2017] EWCA Civ 2164 (20 December 2017) – The Court of Appeal allowed the appeal of a transgender father from an ultra-orthodox Jewish community so, now as a woman, she could pursue contact with her children, who still lived with their mother in the orthodox community. The children are five children, whose ages now range from 13 to 3. The case was sent back to the Family Court for reconsideration by a different High Court judge. The children’s views were taken into account by the judge (Peter Jackson J); but neither before him or in the Court of Appeal was there any formal offer made to the children to speak to the judge – if they wanted to express a view in terms of the EU Charter or UN Convention.

 

A v B [2018] EWHC 328 (Fam) (6 February 2018), Theis J – was a mother’s appeal against a recorder’s refusal to allow her to take an 8-year child to Poland. The appeal was allowed and the case remitted to another circuit judge for hearing. Child not joined.

 

A v R & Anor [2018] EWHC 521 (Fam) (21 March 2018), MacDonald J – A father’s appeal was allowed on the ground that the judge had not properly considered his application for contact to his thirteen year old daughter. She was not joined; and does not appear to have been asked her views. That said, procedurally this case – in which the press reported the parties’ squabbling barristers and the father that they had ‘shouted over each other’ – was undistinguished. It will remain to be seen whether the judge hears the daughter’s views at any future hearing.

 

‘Administrative proceedings affecting the child’

 

Herefordshire Council v AB [2018] EWFC 10 (1 February 2018), Keehan J is included here only to recall that it is not only in court proceedings that a child’s views should be consulted; but also in ‘administrative proceedings’ which would include accommodation under CA 1989 s 20. Keehan J did not formally join either child.

 

The Herefordshire case concerned two children in separate cases had been accommodated for 8 and 10 years under CA 1989 s 20. Keehan J explained how that was a serious abuse of the way s 20 should be used, and of the way informed consent should be obtained from a parent – and of a mature child – if a s 20 placement was to continue. Keehan J started his judgment (in respect of a child who was seven when accommodated; and who remained in range for Art 12/24 purposes for all the period after that):

 

[1] This judgment concerns two unconnected young people who have been accommodated pursuant to the provisions of The Children Act 1989, section 20 (the 1989 Act) for a very considerable period of time.  Their treatment by Herefordshire Council (‘the local authority’) represents two of the most egregious abuses of section 20 accommodation it has yet been my misfortune to encounter as a judge.

[2] CD was born in 2001.  A series of referrals were made to the local authority in respect of his parents’ allegedly abusive relationship in 2005 which led to CD being accommodated by the local authority in October 2009 when he was eight years of age.  He was not made the subject of public law care proceedings until September 2017, when he was 16 years of age; a period of eight years, subject to section 20 accommodation.

[3] On 8 December 2017, I made a special guardianship order in respect of him in favour of his long-term and very dedicated foster carers to whom he affectionately refers as Fossil and Grumpy.

 

If it is the child’s future which is in issue by whatever public body – courts, local authority, health department (see eg Gillick v West Norfolk and Wisbech AHA [1985] UKHL 7, [1986] 1 AC 112, [1986] 1 FLR 224) – then a child is entitled to ‘the opportunity to be heard’ (Art 12.2 (above)); and any child is surely entitled to look to court rules and procedure which is more clear and understandable to the child. Rights are not rights if they cannot be understood by those entitled to them.

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Hearing the child in family courts

Giving weight to the views of a child in family proceedings

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UK has agreed to be bound by conventions which guarantee to children a right to express views where the child – ‘who is capable of forming his or her own views’ – is affected by the outcome of any decision-making concerning the child. And of course this will include the outcome of court proceedings about the child. To what extent, however, are English and Welsh judges complying with their duties to hear a child’s views?

 

The short answer is: at best falteringly. There are only ‘guidelines’ on the subject for English courts. There is no clear law. Reported cases, even involving older children, suggest that no real attempt is made to elicit their views, still less to join them as parties where their own future is in issue (as was the case for example with Kate below). For children the law on their views and taking part in proceedings is lame.

 

United Nations Convention on the Rights of the Child 1989 Art 12 – by which UK has agreed to be bound – states:

 

‘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.’

 

The Charter of Fundamental Rights of the European Union – by which UK is bound – at Art 24 on this point is to much the same effect:

 

‘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.’

 

To emphasise the importance of taking account of views, the UN Convention requires that an ‘opportunity to be heard [be provided] in any judicial and administrative proceedings’. That is for example judge and social workers must make sure a child who wishes to express views can do so by whatever means is appropriate and in accordance with procedural rules. Art 12 continues:

 

‘2 … 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.’

 

Modern examples of views of children being heard

 

So to what extent are family courts taking account of children’s views? If judges are formally taking them into account it is difficult to deduce this from individual cases. Certainly there is no evidence in the rules for children proceedings – mostly in Family Procedure Rules 2010 Pt 16 – that children are being ‘provided the opportunity to be heard… in a manner consistent with court rules’.

 

This last point has two elements:

 

  • That a child must be positively told of his or her rights under Arts 12 and 24; and
  • That if a child wants to express a view this be set up in rules.

 

In our family courts rules the first element of these two – without which the second is only haphazardly applied – just is not there. At most the child – who is almost certainly not told about it – has the constitutionally lame Guidelines on Judges Meeting Children who are subject to Family Proceedings April 2010 [2010] 2 FLR 1872 – . These guidelines are not law; though they have been approved by judges at high level. Their ‘purpose’, it is said, is ‘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 positive ‘they shall in particular’ have views heard in the Guidelines.

 

Certainly there is nothing beyond Children Act 1989 s 10(8) (enables a child to ask if he or she can make an application in proceedings: not the same thing at all) in law which records how English judges should recognise Arts 12 and 24 and formally hear child’s views. Children Act 1989 s 1(3) passively records only that the wishes and feelings of a child is part of a court’s decision-making process. This provision and the Guidelines have been the subject of recent Court of Appeal comment.

 

It remains the position that, if recent judgments are considered, there is no obvious evidence that the views of a child – by appropriate means – are directly and routinely considered. Still less are there clear cases where children with an interest in the outcome are joined as parties.

 

Guidelines and how a child should be heard

 

In Re KP (Abduction: Child’s Objections) [2014] EWCA Civ 554, [2014] 2 FLR 660 the Court of Appeal was concerned with a 13 year-old Maltese girl who was wrongfully brought to the United Kingdom by her mother. When her father applied for her return the girl was seen by the High Court judge for over an hour. The mother appealled against the judge’s order that her daughter – Kate as she was later named; and when she was later joined as a party – should be returned to Malta. They allowed the appeal and ultimately Kate was allowed to remain in England.

 

The Court of Appeal considered the Guidelines and emphasised that they were ‘no more than they purport to be, namely guidelines’. They were, they said, ‘feeling their way forward’. The court continued went on, in the same paragraph:

 

[52] … In like manner nothing that we may say in this judgment should be taken as more than a description of the approach to hearing the voice of a child in such cases that is currently endorsed by judicial authority. Our collective understanding of these matters and how best to ‘hear’ a young person within the court setting, is developing and is still, to an extent, in its infancy. It is not our aim to say anything that may set current practice in concrete or otherwise prevent discussion, thought and the further development of good practice.

 

Child’s views: a ‘fundamental principle’

 

In Re D (A Child) (International Recognition) [2016] EWCA Civ 12, [2016] 2 FLR 347 Art 24 of the Charter was considered by Ryder LJ in the Court of Appeal. Had a child, David, been given an opportunity to be heard in Romania, where it was sought for him to be returned? The court was concerned with a Romanian court order, and the question of whether this 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.

 

The question for the Court of Appeal was how to deal with opportunity to be heard as a ‘fundamental principle of procedure’ in English procedural law. Ryder LJ dealt with this first by setting out ‘general principles’.

 

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) which 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);

 

 

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’. The child’s right to an opportunity to be heard is a ‘child-centred issue’ said the judge. It ‘ensures that the child is engaged in the process and is accorded due respect in that process’ (para [36]). It is thus part of the rule of law in England and Wales that a child has the right to participate in the process about the child (emphasis added):

 

[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.

 

So says Ryder LJ, the ‘principle of procedure’ is there; but to what extent is it being applied by judges and magistrates (and how applied by magistrates?) in 2018?

Child’s views and court proceedings

EU Charter of fundamental rights and children

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

 

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

 

1 Children… may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity.

2 In all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration….

 

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

 

‘Procedural rules of national law’ and UN Convention

 

The UN Convention Art 12 says:

 

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

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

[44] … the rule of law in England and Wales includes the right of the child to participate in the process that is about him or her. That is the fundamental principle that is reflected in our legislation, our rules and practice directions and our jurisprudence. At its most basic level it involves asking at an early stage in family proceedings whether and how that child is going to be given the opportunity to be heard. The qualification in s 1(3)(a) of the CA 1989…relates to the weight to be put upon a child’s wishes and feelings, not their participation.

 

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

 

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

 

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

 

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

 

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

EU Charter of rights and children

A child’s Charter rights which will be lost

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

1 Children shall have the right to such protection and care as is necessary for their well-being. They may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity.

2 In all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration.

3 Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests.

 

EU Charter Art 24: children to express views freely

 

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

 

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

 

Child’s views, according to age and maturity

 

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

 

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

 

The terminology ‘opportunity to be heard’ derives from EU legislation – Council Regulation (EC) No 2201/2003 of 27 November 2003 Concerning Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters and in Matters of Parental Responsibility – to give it its full title; generally known as ‘Brussels IIA’, or Brussels IIR. That legislation will also go with EU withdrawal, a fact which was noted (at para [71]) by the Supreme Court in the Gina Miller case (R (Miller & anor) v Secretary of State for Exiting the European Union [2017] UKSC 5, [2017] 2 WLR 583).

 

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

 

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

 

Views: an opportunity to be heard

 

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

 

[44]  … That is the fundamental principle that is reflected in our legislation, our rules and practice directions and our jurisprudence. At its most basic level it involves asking at an early stage in family proceedings whether and how that child is going to be given the opportunity to be heard. The qualification in s 1(3)(a) of the CA 1989 like that in Art 12(1) of the UNCRC 1989 relates to the weight to be put upon a child’s wishes and feelings, not their participation (my italics).

 

To me this issue turns on the two forms of legislation at 3 above. Childrens’ views shall be taken into consideration on matters which concern them in accordance with their age and maturity, is the EU Charter version. English law says that when making  a decision about a child’s future the court ‘shall have regard in particular to – (a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding)’.

 

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

 

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

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