EU withdrawal and family law

Notes on speech of Lady Sherlock in House of Lords

20160419_173301

Extract from conclusion to speech of Lady Sherlock in House of Lords debate on EU withdrawal on 31 January 2017. The numbering is mine. Comments appear below each paragraph:

 

Procedure and European Court of Justice

1 What are the alternatives to the options in this Bill? There are not many. The first is to retain full reciprocity. That would almost certainly mean being bound by the CJEU and its decisions, which Ministers currently reject. It is worth noting that unlike other areas of law, here the CJEU is dealing only with procedural questions, not with substantive law. Every EU state keeps its own family law. The court can rule on questions of interpretation of laws, such as which country decides a case or the wording of enforcement orders. It does not change the law by which a country decides who gets divorced, what maintenance will be granted or how much contact there will be.

 

The procedural point cannot be stressed too strongly. Each EU country keeps its own cultural roots in family law. No one tells the UK it must change its primitive adoption laws; nor dictates to any EU catholic country which may have different bases for dissolution of marriage. UK money distribution remains its own.

 

That said the primacy of children’s welfare in any decisions is one adopted by EU law and re-enforced by the European Court Neulinger and Shuruk v Switzerland Application No 41615/07 [2011] 1 FLR 122, ECtHR).

 

A bespoke arrangement

2 Secondly, we could seek a bespoke arrangement. We could try to make a deal with the EU for a new framework for family law co-operation. That would be slow and difficult and certainly not possible by 2019. Even if we end up with no deal and even if we can get rid of the asymmetry, there is still no guarantee that the Hague conventions would apply, leaving us with an unacceptable void.

 

‘Slow and difficult’ is not an answer. We are here today with ‘exit day’ a matter of months away; so for the sake of the families and children concerned it must be dealt with by 2019. The opposing Brexit army abetted by MPs on both sides of the Commons, is advancing. Family lawyers cannot just say: ‘wait, we aren’t ready to fight’. We just have to work harder to prepare battle positions: ie a fresh Brussels IIA.

 

The ‘bespoke’ solution sounds a little like the second option put forward by family lawyers in reply to Brexit (October 2017). If nothing is ‘bespoken’, separating families and their children will fall off the famous Brexit cliff edge; and this is not for lack of warning. The problems families will suffer as outlined in the earlier part of the speech were predicted by the Supreme Court over a year ago in R (Miller & anor) v Secretary of State for Exiting the European Union [2017] UKSC 5, [2017] 2 WLR 583 at para [71].

 

The painful fact of the matter is that unless EU and the Tories agree to keep such instruments as 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’) on hold families like the one in the earlier part of Lady Sherlock’s will fall into a Brexit void where few hold will be barred between competing jurisdictions.

 

The Ministry of Justice and practising lawyers must get their heads together with individual jurisdictions to work out what reciprocity can be agreed following EU withdrawal and to agree how this is to be enforced. For the sake of the families and their children concerned, surely those who support EU withdrawal can agree that the European Court of Justice continue to have jurisdiction in those few cases where a neutral arbiter is needed?

3 I am very worried that Ministers appear to have given no attention to what they will do about this area. I have heard not a single thing telling us what they will do. By the time we get to Committee—where I intend to return to this—I very much hope that the Government are in a better position.

4 I have a final word on children. Children’s charities are deeply concerned about whether our law will be sufficiently robust and comprehensive to protect vulnerable children post Brexit. For example, not all the provisions of the EU anti-trafficking directive 2011 were brought into domestic law, which will leave real gaps in safeguards, for example for unaccompanied minors.

 

Children

 

The issues over children go must wider than anti-trafficking (crucial though this is). EU law is much more firm and clear – though still not always followed by UK law (as I explain ). UK is bound by eg Charter of Fundamental Rights of the European Union (2000/C 364/01), which the Government proposes to ditch. This gives children rights to express their views which still need clearer procedural expression in English and Welsh law. Outside EU there is a real risk that children’s rights will again suffer. The massive advances of Children Act 1989 twenty-five years later and without the impetus of EU law reform look tawdry in the area of children rights.

 

Without Brussels IIA children in care will find themselves caught in a jurisdictional cross-fire where parents leave UK, and children are in care in England and Wales (Brussels IIA Art 15: there are a number of recent reported decisions on this see eg Redbridge LBC v D, E, F and G (Children : Art 15 – transfer of the proceedings) [2017] EWHC 3078 (Fam) (19 September 2017), HHJ Carol Atkinson as High Court judge).

 

Agenda for EU withdrawal

 

If EU withdrawal is to go ahead

 

  • Lawyers and the Ministry of Justice must urgently engage with EU judges (through a representative body, or in each state)
  • Children law and children’s rights to be heard must be made more clear preferably by statute.

 

Without this families and children will suffer.

Advertisements

Top twelve family law cases for 2017

 

Miller to Mental Capacity Act 2005

 

A review of my top twelve family law cases for 2017 must mention – no more – R (Miller & anor) v Secretary of State for Exiting the European Union [2017] UKSC 5, [2017] 2 WLR 583. It drew attention Brussels IIA (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) as being an example of legislation which any ‘Great Reform Bill’ (such a silly name, now European Union (Withdrawal) Bill)) could not replace. It requires co-operation from other EU legislatures and judiciary which may – or may not: we do not know yet – be forthcoming.

 

Lady Black must be congratulated for her promotion to the Supreme Court; but for clarity of law-making her brother McFarlane LJ remains the star. In the High Court it is hard to choose only a handful of cases when we have lawyers of the calibre of Peter Jackson (now LJ), Cobb, Keehan, MacDonald, Hayden and Baker JJ pushing out the judgments (I don’t mention Mostyn J, who is too self-indulgent; and he is too wobbly as a lawyer to be a good judge).

 

It is odd that it is the male judges who send in their judgments to BAILII. The common law (for it is reported, not unreported decisions which frame the law) – like other things in life, perhaps? – tends to be made by boys, even in family law. I have limited each Family Division judge to only one case. No women reach this cut, which may be very unfair: where are Parker or Theis, Russell or Roberts JJ, for example? Not even Lady Hale, whose judgements in her thirteen years in the Supreme Court have done so much to reform and define family law, makes it in Supreme Court judgments this year.

 

Nor have I found it possible to include in my dozen one judgement from the President, Sir James Munby. Perhaps in part this is because amongst his duties is work on obscure subjects like HRH Princess Margaret’s will and cases brought by the Queen’s Proctor such as Grasso v Naik (twenty-one irregular divorces) [2017] EWHC 2789 (Fam). Twenty-one divorce petitions issued from the same address by a struck-off barrister were revoked or set aside. After the initial explanation of the law and a scan of the evidence you could tell that Sir James was thoroughly bored by the whole thing. Neither case – the will and the QP application – add much to the use or ornament of the principles of family law.

 

The appellate courts

 

2017 began with all eleven Supreme Court Justices delivering their split (8:3) judgements in Miller. Birch v Birch [2017] UKSC 53, [2017] 2 FLR 1031 explained that an undertaking, pre-curial to a court order could be varied in narrow and appropriate circumstances (Birch by the way was ignored by Mostyn J in his administrative exercise of CH v WH (Power to order indemnity) [2017] EWHC 2379 (Fam) as explained here https://dbfamilylaw.wordpress.com/2017/12/18/when-is-a-financial-provision-order-not-an-order/). R (UNISON) v Lord Chancellor (Equality and Human Rights Commission and another intervening) [2017] UKSC 51, [2017] 3 WLR 409 makes the cut as a family law case. It is pervasive to all litigation. It elegantly and authoritatively defines rights to justice and the rule of law.

 

The star for me of Court of Appeal cases is Re T (A Child) [2017] EWCA Civ 1889 in which McFarlane LJ explains the breadth and utility to parties and children in family proceedings of the non-molestation order under Family Law Act 1996 s 42; in this case to protect a child who was in foster care. In so doing he refuses to define ‘molestation’ or ‘domestic abuse’ (see, by contrast, the effort to do so in the revised FPR 2010 PD12J para 3: for a pre-Re T discussion of PD12J see https://dbfamilylaw.wordpress.com/2017/11/18/lord-scarman-and-a-definition-of-domestic-abuse/). It depends on the circumstances and whether they come within the broad meaning of molestation in Family Law Act 1996 s 42.

 

In Hart v Hart [2017] EWCA Civ 1306 Moylan LJ produced a master-class on the back-ground to the modern – ie post White v White [2000] 1 AC 596, [2000] 2 FLR 981, [2000] UKHL 54 – law on ancillary relief; and in particular in relation to ‘non-matrimonial assets’ (eg inherited, after acquired or earned by exceptional effort assets). Mrs Hart, much to the unbridled disgust of her own lawyers, Irwin Mitchell (who should have restrained their comments on the judgment) failed in her appeal. A judge has a wide discretion in these things. All lawyers, Irwin M included, must learn that discretion does not always fall the way you expect – or in the way you have advised your client to expect.

 

In AM (Afghanistan) v Secretary of State for the Home Department [2017] EWCA Civ 1123 Sir Ernest Ryder (as President of Appeals Tribunals) emphasised that care is needed by courts in how they treat the evidence of vulnerable witnesses (here in an immigration appeals tribunal). It is an important case for anyone acting for a vulnerable party or witness in any form of court proceedings: criminal, family, civil or administrative tribunal (as here). Two particular issues arose which are relevant also eg to children proceedings: the way in which the credibility of a child or other vulnerable witness should be assessed against other objective evidence in the particular case; and the importance of flexibility of procedure for the hearing of vulnerable and child witnesses (including taking account of recommendations of expert witnesses as to how this could be done) (please note authors of the recent FPR 2010 Pt 3A on vulnerable witnesses: and see David Burrows on ‘Evidence of children and vulnerable witnesses: Part 1’).

 

European cases

 

Maybe I’ve been a little biased in singling out EU regulation cases; but the hole being bored in our family justice system is still only present, for now, in its ignoral by most family lawyers. In B v B (Maintenance Regulation – Stay) [2017] EWHC 1029 (Fam) MacDonald J explained the background to the stay jurisdiction and why in this case the former wife and the English courts must await a decision from the Milan court. In FE v MR & Ors [2017] EWHC 2298 (Fam) Baker J considered whether Brussels IIA Art 15 enables the court of a member state (a requesting court, R) to request another to transfer a case from that member state’s court to R’s court. Were the children’s circumstances exceptional and would the requesting court ‘be better placed to hear the case’ (Art 15.1). Baker J considers the factors which should influence him in requesting a Spanish court to transfer a case to the English courts, where two children aged 14 and 11 of Spanish parents, were living in England, but had been subject to proceedings in Spain for four years.

 

One money, one ‘private law’ children case; and finally a ‘public law’ case, all under Brussels IIA. In Redbridge LBC v D, E, F and G (Children: Art 15 – transfer of the proceedings) [2017] EWFC B82, HHJ Carol Atkinson as High Court judge dealt with an application under Art 15 in respect of 4 Roma heritage children from Romania. An application for a transfer of the proceedings to Romania, pursuant to Art 15 was issued by the mother in April 2017. The English court had jurisdiction based on habitual residence. Judge Atkinson provides a text-book analysis of the law to determine this application, by reference to leading case law and concluded that it would not be in the ‘best interests’ of the children to transfer the children; at least not at this stage.

 

In the tragic case of Re Gard (A Child) [2017] EWHC 1909 (Fam) (and see ‘Lessons from Gard’), Francis J did what a Family Division judge sometimes has to do, and he did so with great dignity and care. Charlie suffered severe brain damage and could not see or hear or breathe because of a mitochondrial condition. Your heart bleeds for his parents, who – or on whose behalf – every legal and medical stone was turned. Spare a thought too for the Family Division judge who has to say a child must die.

 

In Wolverhampton City Council v JA & Ors [2017] EWFC 62, Keehan J – with enormous care, and attention to detail of the evidence – explained why children should go into care and why the ABE evidence adduced before him was admissible and credible. An oddity of the case remains that information which should have been covered by legal professional privilege – as I read the report (see eg here) – was compelled to be produced by a lawyer who took part in the early stages of the case.

 

Peter Jackson J (as he then was) would be the first to accept that Re A (Letter to a Young Person) (Rev 1) [2017] EWFC 48 broke no new ground, in law. It has to be included here as a very real attempt to open up to a ‘young person’ (a young boy who had, originally, made his own application to go to live with his father in a ‘Scandinavian’ country). When courts are being reminded daily that the views of those children mature enough to be consulted – if they want to be consulted – must be taken into consideration (see Charter of Fundamental Rights of the European Union Art 24: also proposed to go with EU withdrawal), for a judge to ensure that the traffic flows in both directions is surely a very good thing?

 

My favourite case of 2017 is Re S (Child as Parent: Adoption: Consent) [2017] EWHC 2729 (Fam). In it Cobb J combines, with the typical sensitivity of a fine children lawyer, an understanding of how one of my favourite cases of all time – Gillick v West Norfolk and Wisbech AHA [1985] UKHL 7, [1986] 1 AC 112, [1986] 1 FLR 224 – with a subject which is essential to all family lawyers Mental Capacity Act 2005. He shows how these two subjects complement one another in relation to a child’s or other person’s understanding and ability to consent (see eg ‘Capacity to consent’).

 

Happy Christmas to any and all of my readers…

 

David Burrows

24 December 2017

 

Retained law and the EU Withdrawal Bill

‘Retained law’: defined

 

The concept of ‘retained law’ is essential to an understanding of how the EU withdrawal bill  cls 2 to 6 are intended to work. This will define what EU law is to stay in UK law and what laws are intended to develop from ‘exit day’? In what follows these clauses will be considered followed by a guide to the powers retained by ministers further to amend primary legislation by delegated powers (‘Henry VIII powers’) in cls 7-9. For the family lawyer the position under retained law must then be compared with each individual case with a EU component: that is where one or both parents are in another EU country and the children (with the other parent or looked after by a local authority) remain in UK or are in a EU country.

 

Clause 6 defines what forms of law will be retained according to the following definitions in cl 6(7):

 

  • ‘retained domestic case law’ means case law – ie principles laid down by, and any  decisions of, a UK court or tribunal – as they apply immediately before exit day.
  • ‘retained EU case law’ means any principles laid down by, and any
    decisions of, the CJEU, as they have effect in EU law immediately before exit day and subject to the relator provision in cl 5;
  • ‘retained EU law’ means anything which, on or after exit day, continues to be, or forms part of, domestic law by virtue of cls 2, 3 or 4 or sub-cls 5(3) or (6).
  • ‘retained general principles of EU law’ means the general principles of EU law, as they have effect in EU law immediately before exit day.

 

Cls 2 to 5 define how EU law is to be dealt with in UK courts. EU-derived domestic legislation continues to have effect in domestic law, as it has done before exit day (cl 2(1)). By cl 2(2) ‘EU-derived domestic legislation’ is defined as any legislation made under ECA 1972, any direct EU legislation (ie EU legislation as operative immediately before exit day (cl 3(1); eg Brussels IIA – so far as still enforceable); and so far as it is not exempted by later provisions in the bill. Clause 4 makes provision for preservation for UK individuals of:

 

(1) Any rights, powers, liabilities, obligations, restrictions, remedies and procedures which, immediately before exit day— (a) are recognised and available in domestic law by virtue of section 2(1) of the European Communities Act 1972,…

 

Cl 5 defined the intended status of retained EU law (see (3) above):

 

  • Cl 5(1) provides that the principle of supremacy of EU principle no longer applies to any enactment or rule made or passed on or after exit day.
  • Similarly, cl 5(2) provides that the EU supremacy principle does apply when questions arise after exit-day as to the interpretation, disapplication or quashing of pre-exit enactments and rules; and
  • Cl 5(3) says that the arrangement set out in clause 5(2) applies even if a relevant pre-exit enactment or rule is amended post-exit, provided that ‘the application of the principle is consistent with the intention of the modification’.

 

The effect of these provisions is that for retained EU law will the EU supremacy principle will apply to pre-exit day legislation, but not after exit day. Thus, if questions arise about the relative priority of pre-exit domestic legislation and retained EU law, retained EU law will prevail. It will therefore, for instance, be possible for a court to disapply pre-exit Acts of Parliament if they conflict with retained EU law. But when questions arise about the relative priority of post-exit domestic legislation and retained EU law, the EU supremacy principle will be disregarded, meaning, for instance, that post-exit Acts of Parliament will be capable of taking priority over retained EU law. As already mentions, cl 5(4) provides that the EU Charter of Fundamental Rights is not part of domestic law on or after exit day; though, for the avoidance of doubt, under cl 5(5) fundamental rights or principles that form part of EU law independently of the Charter are unaffected by the non-incorporation in domestic law of the Charter itself. To that extent it therefore remains part of domestic law.

 

Interpretation of ‘retained EU law’

 

Cl 6 provides for ‘Interpretation of retained EU law’. Courts are no longer to be bound by decisions of the CJEU, from exit day; and no case or other matter can be referred to the European Court after that day (cl 6(1)). No court need ‘have regard to anything done on or after exit day by the European Court [unless] it considers it appropriate to do so’ (cl 6(2)). Thus decisions of the CJEU made after exit day will not be binding on UK courts and tribunals; domestic courts cannot refer cases to the CJEU on or after exit day; and UK courts are not required to have regard to anything done by the EU or an EU entity on or after exit day.

 

Cl 6(3) requires courts national courts to resolve questions regarding the validity, meaning or effect of retained EU law in accordance with the case law of the Court of Justice and general principles of Union law as both existed at the date of the UK’s departure from the EU. The ‘explanatory note’ to the bill expands on this: any question as to the meaning of retained EU law will be determined in UK courts in accordance with relevant pre‐exit CJEU case law and general principles. This includes, amongst other matters, taking a purposive approach to interpretation where the meaning of the measure is unclear (i.e. considering the purpose of the law from looking at other relevant documents such as the treaty legal base for a measure and where relevant the travaux preparatoires (the working papers) leading to the adoption of the measure, applying the interpretation that renders the provision of EU law compatible with the treaties and general principles of EU law).

 

After exit day UK courts will also no longer be able to refer questions concerning the interpretation of Union law to the CJEU. Clause 6(4) of the Withdrawal Bill substitutes the UK Supreme Court for the CJEU when it comes to issuing binding interpretations of retained Union law. Both national courts will also enjoy exclusive competence to depart from previous decisions of the EU Court where they consider it ‘right to do so’ – following established domestic rules on judicial precedent (cl 6(5)).

 

All that said, s 6(2) affords domestic courts – under the leadership of the Supreme Court – a discretion to develop, or at least to permit, continued links with the EU jurisprudence after exit day.

 

Henry VIII powers

 

Cls 7, 8 and 9 provides ministers with substantial powers by order or other delegated legislation to amend statutory provisions: that is by ‘Henry VIII powers’. First a Henry VIII power must be defined. This was done recently by Lord Neuberger in the Supreme Court in R (The Public Law Project) v Lord Chancellor [2016] UKSC 39, [2016] 1 AC 1531, [2016] 3 WLR 387 where he explained that the term, by reference to Craies on Legislation (10th ed (2015)), edited by Daniel Greenberg), para 1.3.9 as ‘commonly used to describe a delegated power under which subordinate legislation is enabled to amend primary legislation.’ He continued:

 

[25] … When a court is considering the validity of a statutory instrument made under a Henry VIII power, its role in upholding Parliamentary supremacy is particularly striking, as the statutory instrument will be purporting to vary primary legislation passed into law by Parliament.

[26] … In the case of an “amendment that is permitted under a Henry VIII power”, to quote again from Craies (above) para 1.3.11: ‘…as with all delegated powers the only rule for construction is to test each proposed exercise by reference to whether or not it is within the class of action that Parliament must have contemplated when delegating. Although Henry VIII powers are often cast in very wide terms, the more general the words by Parliament to delegate a power, the more likely it is that an exercise within the literal meaning of the words will nevertheless be outside the legislature’s contemplation.

 

Each of the three clauses provide a similar formula, first to deal with ‘deficiencies arising from withdrawal’, thus:

 

(1) A Minister of the Crown may by regulations make such provision as the
Minister considers appropriate to prevent, remedy or mitigate—

(a) any failure of retained EU law to operate effectively, or

(b) any other deficiency in retained EU law,

arising from the withdrawal of the United Kingdom from the EU.

 

Similar sub-clauses are included for complying with international agreements (cl 8) and for implementing withdrawal (cl 9); and all three clauses (7(4), 8(2) and 9(2)) add the henry VIII cover provision: that any ‘Regulations under this section may make any provision that could be made by an Act of Parliament’. And then, if that is challenged in the High Court the courts, says Lord Neuberger, must check whether the power was in truth ‘outside the legislature’s contemplation’ though subject to the fact that in each case the powers are not general, but are granted in each clause for specific purposes.

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 1: before and after EU withdrawal

Court of Appeal and hearing the child – or not…

In Re S (a Child) [2017] EWCA Civ 44, through a fog of imprecise chronology and unavailable evidence (or was it uncalled, in the case of the child?), the Court of Appeal were able to allow 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). She 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.) By the time of the hearing before the judge M had left United Kingdom to live with her husband in Ireland; but, after A was made a ward, she returned to UK to apply to the UK court to relocate.

The parents had a short relationship which had ended in August 2010. The appeal related to findings made by the judge before whom a series of contact applications (starting in the family proceedings court) had finally arrived. He had a schedule of 14 allegations made by the mother. He found three proved, the remainder he rejected. The first two were general, namely that F had behaved in a controlling way towards M throughout their relationship and that he was violent towards her, this being exacerbated by drink. The third proved allegation related to a specific event when the father assaulted the mother, grabbing her around the neck and throwing her to the floor. The last item on the schedule was a recital of cautions and convictions of the father, which the father accepted was accurate and the judge treated as a matter of record.

Evidence from the child: mother’s case rejected by the judge

Of the remaining ten sets of allegations made by M, all but one were rejected by the by the Court of Appeal. The judge had not accepted the ground which arose partly from what A had said. (The judge did not hear what the child had to say about it: this article returns later to the absolute right of the child to be heard.) On this ground the Court of Appeal allowed M’s appeal. It arose from what A had said to a family support worker (S), combined with the fact of a ‘conditional caution’ – for which there must be an admission by a suspect – that F had injured the children a later girlfriend.

Black LJ (who gave the main judgment) explained the factual back-ground when S had seen A, as follows. :

[27] … The judge had available to him [S’s] written report of what A said to her. In it, S explained that she had been working with the family since February 2013, helping to “manage their high levels of anxieties”. It seems that the visit during which the material conversation occurred was her third visit and took place around mid-July 2013. There is no suggestion in her report that the visit was in any way a response to A’s account of his father’s actions during contact. Ms Solway described how, during the visit, she spent some time with A in the kitchen and then in his bedroom. She said that he was enjoying a story book when he asked “unexpectedly” whether she was going to help him to get a particular person to stop hurting him, demonstrating to her how the person had grabbed his arm. He identified the person concerned by his forename only, the forename being the same as the father’s.

The judge had said that ‘the allegation was a serious one’; but then had rejected the allegation and not given it full consideration said the appeal court. Black LJ explained this:

[30] … It seems to me that his handling of the issue fell short in a number of ways. It was incumbent upon him, I think, to deal more fully with what was quite a graphic description by Ms Solway of A’s apparently spontaneous demonstration of events to her. The judge stated baldly that he was unable to rely upon what A had said and gave very little explanation as to why he took that view, except perhaps that there was no mark on A. As for the caution, he said in responding to the request for clarification that he “took no account of [the father’s] previous physical chastisement of children” (my emphasis). He might ultimately have concluded that the father’s actions in relation to the other children did not assist him particularly in his decision about what happened to A, but he did need, in my view, to consider the evidence about those actions specifically and to explain expressly how he dealt with it in making his decision. Furthermore, the judge should also, in my view, have given consideration to whether the findings that he had made about the father’s violence towards the mother contributed anything to the issue in relation to A.

Black LJ therefore set aside the finding that the assault on A did not take place. She remitted the allegation for hearing by another circuit judge (though no reference was made by her to Art 24 (below) or as to whether A will speak to the judge).

Modern questions of legal principle

These facts in relation to this particular case raise a number of live questions of law, both in relation to EU law and family proceedings; and as to other areas of changing family law. In summary these are as follows:

  • Child’s rights and Art 24 – This article looks at the appeal and asks how might the same case have been dealt with if Charter of Fundamental Rights of the European Union (2000/C 364/01) (‘the Charter’) Art 24 (and its expression of the rights of the child) been taken fully into account.
  • 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.
  • 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).
  • Relocation to Ireland and further hearings about A – And speculation for the future: how might contact be dealt with after EU withdrawal if A goes to Ireland (which will remain in EU) where the mother wants to live.

Rights of the child under EU Charter of Fundamental Rights

The Charter defines rights, some of which are replicated in European Convention 1950, for all EU member states. It is part of EU and UK law since the Lisbon Treaty of 2009. It is enforceable in the European Court of Justice. Presumably it will go with EU withdrawal.

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.

So what were A’s rights in these proceedings; what light could he have shed on what happened; and what (if anything) will happen to those rights with EU withdrawal? The first thing to say is on children’s views and their evidence (dealt with more fully in Evidence in family proceedings by David Burrows (2016, Family Law/LexisNexis) Ch 19). A child’s evidence may be as to relevant facts, or as to expression of a view on outcome. Had A been permitted to ‘express a view’ in these proceedings (as Art 24(2) guarantees: it is not clear from the report whether the judge offered this) he could have spoken to the judge about both: what had happened during when he was ‘hurt’ by F and as to whether he had a view on the future of contact. He is competent to give evidence; but as to how would be for the judge.

These two aspects of hearing a child have been considered by Lady Hale. She explained giving of evidence by a child in Re W (Children) (Abuse: Oral Evidence) [2010] UKSC 12, [2010] 1 FLR 1485 (evidence from a 12 year old as to sexual abuse by her father) and the means by which this could be done (it seems the hearsay evidence of S was not accepted by the judge):

[28]   The family court will have to be realistic in evaluating how effective it can be in maximising the advantage [of the child giving evidence] while minimising the harm [to the individual child]. There are things that the 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. The important thing is that the questions which challenge the child’s account are fairly put to the child so that she can answer them, not that counsel should be able to question her directly. One possibility is an early videoed cross-examination as proposed by Pigot. Another is cross-examination via video-link. But another is 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.

From a reading only of the law report, it is difficult to see how harm to A would outweigh the longer-term advantage to his welfare of his giving live evidence, if he is indeed at risk from further ham from his father. And this is a question which a court must surely answer under Children Act 1989 s 1(6) (contact between child and parent, unless risk of harm: to be considered later in this series)?

As to a child’s views and their weight in children proceedings, in Re D (Abduction: Rights of Custody) [2006] UKHL 51, [2007] 1 FLR 961 the House of Lords was dealing with a child of the same age as A. 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]   There is evidence, both from the CAFCASS officer who interviewed him after the Court of Appeal refused him leave to intervene, and from the solicitor who represents him, that A is adamantly opposed to returning to Romania. Yet 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.

In neither instance is need the child be subjected to intense cross-examination as might be an adult; but it is the child’s right to be heard in way which was not obviously the case – certainly the child was given no role by Black LJ in the appeal – in this case.

Child having an ‘opportunity to be heard’

In Re D (A Child) (International Recognition) [2016] EWCA Civ 12, [2016] 2 FLR 347 Art 24 was expressly taken into consideration and the question of a child being heard was raised to a ‘fundamental principle’ of English child law (and see Evidence in family proceedings (above) at Ch 19 Pt 6). 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 – slightly younger than A – 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.)

In Re D Ryder LJ treated the child as having ‘the right … to participate in the process that is about him or her’ (§44). 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. This is supported also by United Nations Convention on the Rights of the Child 1989 Art 12:

(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.

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). Of the list in s 1(3) he held s 1(3)(a) – that the court shall consider the ascertainable wishes and feelings of a child – to be a ‘fundamental principle’ which no ‘parent can seek to avoid’ (§38). He concluded:

[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.

Children and EU law

And what of the child’s right to be heard in Europe? 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 23 of the Charter as to a child’s right to be heard in ‘judicial proceedings’, and where that child is capable of forming his or her own views (and see Ryder LJ in Re D [2016] (above)).

In UK law, the child’s wishes and feelings are considered by the court in the light of the child’ ‘age and understanding’ (a factor to be considered in Part 3). It may be a distinction without any real difference; but the Charter and UN Convention express these principles as a right. In UK it is permissive. The present Guidelines on Judges Meeting Children who are subject to Family Proceedings April 2010 [2010] 2 FLR 1872 set out their 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.

The Charter will go with EU withdrawal. It remains to be seen whether UK judges develop its concept of child’s rights (as distinct from their views being taken into account); or whether they will take the more passive approach implied by the UK sources referred to above. And then, as will be considered later in this series, it remains to be seen whether any of the rights now attaching in English proceedings, will be salvaged from the EU withdrawal wreckage; or will English and European courts brandish differing rights of issue and enforcement of proceedings?