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….

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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

 

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

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

 

A child’s rights to express a view

 

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

 

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

 

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

 

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

 

UN Convention rights

 

The UN Convention Art 12 says the following:

 

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

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

 

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

 

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

 

Mature child in court proceedings

 

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

 

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

 

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

 

(1)        Public law proceedings

 

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

 

(2)        Private law proceedings: parents’ application

 

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

 

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

 

(3)        Child’s private law application

 

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

 

(4)        Child joining in proceedings

 

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

 

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

 

(5)        Child abduction proceedings

 

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

 

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

 

Court procedure

 

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

 

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

 

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

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

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

 

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

 

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

 

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

 

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

 

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

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

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

 

Children’s views, according to age and maturity

 

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

 

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

 

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

 

‘Right to participate’ in proceedings about the child

 

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

 

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

 

(3) [When the court is considering making an order about a child it] shall have regard in particular to –

(a)the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);

 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

[57]… Until the case reached this House, no defence based on the child’s objections was raised…. As any parent who has ever asked a child what he wants for tea knows, there is a large difference between taking account of a child’s views and doing what he wants…. It is the child, more than anyone else, who will have to live with what the court decides. Those who do listen to children understand that they often have a point of view which is quite distinct from that of the person looking after them. They are quite capable of being moral actors in their own right. Just as the adults may have to do what the court decides whether they like it or not, so may the child. But that is no more a reason for failing to hear what the child has to say than it is for refusing to hear the parents’ views.

 

All of this – from Art 24 to Lady Hale’s views in Re D [2007] speak for a child’s right – emphasis on ‘right’ – to be heard. Just as the English judiciary have done so far, the wording of Children Act 1989 s 1(3)(a), as I read it, comes well short of a right. As the ‘guidelines’ say, it is up to the judge to decide: no question of a child’s ‘right’. By contrast the Charter of Fundamental Rights of the European Union (2000/C 364/01) Art 24 and Council Regulation (EC) No 2201/2003 of 27 November 2003 Concerning Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters and in Matters of Parental Responsibility (‘Brussels IIA’) eg Art 23 each guarantee rights and participation. That will go with EU withdrawal unless it is reproduced in UK legislation. (And this is before we look at what will be lost to children and others involved with EU withdrawal with the loss of the reciprocal arrangements in Brussels IIA.)

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

Child welfare, contact – and a practice direction

 

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

 

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

 

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

 

Children’s fundamental rights

 

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

 

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

 

  1. Children shall have the right to such protection and care as is necessary for their well-being. They may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity.
  2. In all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration.
  3. Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests.

 

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

 

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

 

Amendments to Children Act 1989 s 1

 

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

 

1 Welfare of the child 

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

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

(2A) A court, in the circumstances mentioned in subsection (4)(a)…, is as respects each parent within subsection (6)(a) to presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child’s welfare.

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

 

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

 

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

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

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

 

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

 

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

 

PD12J contact and domestic violence

 

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

 

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

 

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

 

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

 

A footnote to this paragraph explains:

 

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

 

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

 

Practice direction and law

 

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

 

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

 

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

 

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

 

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

 

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

 

Further abuse by cross-examination

 

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

 

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

 

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

 

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

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

 

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

 

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

 

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

 

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

 

Cross-examination of the child

 

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

 

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

 

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

(a)in connection with that offence, or

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

Child’s rights: contact and domestic violence

 

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

 

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

 

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

 

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

 

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

 

Call for law reform

 

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

 

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

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?

Vulnerable witnesses and children: human rights and legal aid

Cross-examination of victims of domestic violence

 

Women’s Aid and the Guardian are concerned about the lack of protection for victims of domestic violence in family courts where their alleged abuser is permitted to cross-examine them. This article develops some of the ideas touched on in my earlier Vulnerable witnesses, parties and children in family proceedings at https://dbfamilylaw.wordpress.com/2017/01/05/vulnerable-witnesses-parties-and-children-in-family-proceedings/. The wider problems of vulnerable witnesses and of children in family cases go much deeper than this, as will be explained. The question to be addressed here is: can these problems be helped by legal aid under the existing statute and common law? Sir James Munby P (or his Ministry of Justice draftsperson) thinks not. I think he – or the Ministry – may be wrong.

 

On 20 December 2016 the Ministry of Justice published a statement by Sir James which articulated ‘the pressing need to reform the way in which vulnerable people give evidence in family proceedings’. Family justice ‘lags woefully behind the criminal justice system’, he said. The problem identified by Women’s Aid arises where an alleged abuser (‘B’: generally male, though not invariably) personally cross-examines the victim (‘A’) in (say) domestic violence proceedings; including, as the Guardian says, by ‘tormenting’ her in court.

 

Under press pressure the Justice Secretary, Lynn Truss, has ordered a review. In reality the problems, partly those of the women in A’s position, go much deeper than Truss’s review. In truth they are a feature of the unmet legal need faced by the real shortcomings in our family just system when it comes to protection of child witnesses and other vulnerable witnesses (as identified eg by Amnesty International: see eg Cuts that hurt (2016) Amnesty International (https://www.amnesty.org/en/documents/eur45/4936/2016/en/)).

 

‘Urgent attention’ judicially requested 10 years ago

 

The problem identified above is precisely illustrated by the facts in H v L and R [2006] EWHC 3099 (Fam) [2007] 2 FLR 162 where an alleged abuser (ie B) wanted to cross-examine the abused mother (A) of his child. Roderic Wood J said, in a judgment given over 10 years ago (7 December 2007):


[25]   I would invite urgent attention as to creating a new statutory provision which provides for representation in such circumstances, analogous to the existing statutory framework governing criminal proceedings as set out in the 1999 Act. Such a statutory provision should also provide that the costs of making available to the court an advocate should fall on public funds. I can see no distinction in policy terms between the criminal and the civil process.

 

The same can apply, in exactly the same way, to child or young adult victims of alleged abuse (see eg Re A (Sexual Abuse: Disclosure) [2012] UKSC 60). H v L and Re A are 10 and five years old respectively; yet the problem subsists. Judges think they are powerless to help, lawyers – it seems – can see no way through and the Ministry of Justice is impervious to the problems. This article question whether, in law, the judges are as powerless as they and the President seems to think.

 

Child and vulnerable witness protection in criminal proceedings

 

In criminal proceedings in the parallel situation, the child or other vulnerable witness (eg a party to alleged domestic abuse) cannot be put in this ‘tormented’ position. In relation to a child, s/he has automatic protection by the court having power to impose and order payment from public funds of an advocate to cross-examine a victim. YJCEA 1999 Part 2 Ch II (ss 34-40) is entitled ‘Protection of witnesses from cross-examination by accused in person’. By analogy in family proceedings this can be taken to include one allegedly abusive party of another, of a witness (as in Re A (above) or of a child. The tone is set by s 34 (a subject more widely explained by Lady Hale in R (D (a minor)) v Camberwell Green Youth Court [2005] UKHL 4, [2005] 1 WLR 393; and see Evidence in family proceedings by David Burrows (2016, Family Law/LexisNexis) at Chs 8 and 19):

 

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

(a)in connection with that offence, or

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

 

YJCEA 1999 Part 1 Ch II widens the spectrum of offences to deal with other forms of abusive allegations. Section 38(4) provides that and advocate ‘must’ be appointed to cross examine (as mentioned in the otherwise unhelpful Re K & H (Children) [2015] EWCA Civ 543)) to protect a victim, where ss 34-36 apply:

 

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

 

The advocate has no ‘responsibility’ to the accused (s 38(5)). Procedure for appointment, which could be adapted for use in family courts is fully set out in Criminal Procedure Rules 2015 (‘CrPR 2015’) Part 23.

 

Resources implications; legal aid

 

Sir James’s statement (or the MoJ draftsperson) continues: the family courts judiciary cannot act because ‘it requires primary legislation and would involve public expenditure. It is therefore a matter for ministers’. This is unlikely to be the law. Yes, public expenditure is involved; but much of this can be provided under judges existing common law and statutory powers (including use of YJCEA 1999 ‘special measures’ by analogy) and with full use being made of exceptional case funding (LASPOA 2012 s 10(3))).

 

In Re W (Children) (Abuse: Oral Evidence) [2010] UKSC 12 (a case involving evidence from a child witness) Lady Hale spoke of existing measures and of family court judges’ reticence to use them (emphasis added):

 

[28] The family court will have to be realistic in evaluating how effective it can be in maximising the advantage while minimising the harm. 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…. One possibility is an early video’d cross examination…. Another is cross-examination via video link [or] putting the required questions to her through an intermediary. This could be the court itself, as would be common in continental Europe and used to be much more common than it is now in the courts of this country.

 

Scale of the problem in family courts

 

The problem is much wider than the Justice Secretary seems to understand. In 2014 a working group was set up by Sir James to consider the evidence of vulnerable witnesses where this might be ‘diminished’ by their attendance in court as witnesses, parties or other participants in family proceedings (considered further in http://www.familylaw.co.uk/news_and_comment/family-proceedings-common-law-and-vulnerable-witnesses).

 

The group produced draft rules in mid-2015. The draft took many leads from criminal proceedings under Youth Justice and Criminal Evidence Act 1999 (special measures to help children and vulnerable witnesses). Still no new rules have been formalised. The draft covers children and vulnerable individuals. It includes – but this is only one element – provision for those who are subjected to further abuse by being cross-examined in person by their alleged abuser. Victims include one of a former couple; a child who gives evidence proceedings; or any other witness in family proceedings.

 

The Ministry is aware that the rules amendments have resources implications; but so too have the 1999 adjustments in criminal proceedings. In family proceedings legal aid could be used in European Convention 1950 exceptional case funding for vulnerable parties and children; and many of the criminal proceedings measures are already available but not used, in family proceedings as Lady Hale has pointed out in Supreme Court (Re A (Sexual Abuse: Disclosure) [2012] UKSC 60, [2013] 1 FLR 948 at §[28]).

 

Exceptional case funding

 

Legal aid may be available as an ‘exceptional case’ (LASPOA 2012 s 10(1)) where funding is not otherwise available under the relatively narrow range of representation under the main civil legal aid provisions of LASPOA 2012 Part 1 Sch 1 (available civil legal services). Section 10(2) then goes on to provide that is the LAA considers the case appropriate for an exceptional case determination and an applicant is available on means, civil legal services can be provided. Section 10(3) defines an ‘exceptional case’:

 

(3)For the purposes of subsection (2), an exceptional case determination is a determination—

(a) that it is necessary to make the services available to the individual under this Part because failure to do so would be a breach of—

(i) the individual’s Convention rights (within the meaning of the Human Rights Act 1998), or

(ii) any rights of the individual to the provision of legal services that are enforceable EU rights, or

(b) that it is appropriate to do so, in the particular circumstances of the case, having regard to any risk that failure to do so would be such a breach.

 

In R (ota Gudanaviciene & Ors) v The Director of Legal Aid Casework & Ors [2014] EWCA Civ 1622 the Court of Appeal made clear that ‘Exceptionality [under s 10(3)] is not a test’ (§[29]), it is a descriptor of the legal aid to be granted. The court (at §§[31]-34]) explained how the Legal Aid Agency should treat and assess an application for exceptional case funding.

 

Resolution of resources questions

 

YJCEA 1999 ss 16 and 17 create three categories of witness who may be eligible for assistance by a special measures direction. A witness under 17 is automatically entitled to assistance (s 16(1)(a)). Secondly, s 16(1)(b) deals with incapacitated witnesses (as defined in s 16(2)); and  thirdly, s 17(1) with witnesses effected by “fear or distress”. In the last two cases the court must be satisfied that any evidence “is likely to be diminished” by the circumstances of evidence being given. In what follows “witness” by analogy will include a party in family proceedings.

 

If a witness comes within one of the categories in YJCEA 1999 ss 16 or 17 s/he may be eligible for special measures assistance (YJCEA 1999 ss 23-30), including: preventing a witness from seeing a party (YJCEA 1999 s 23); evidence by live link (s 24); hearing a witness’s evidence in private (s 25); video recorded evidence or cross-examination (ss 27 and 28); and questioning a witness through an intermediary (s 29) or device (s 30). In family proceedings, the measures available for a witness would be the same as for a party.

 

If the tormenting or other in-court abuse of the witness/party denies her a fair trial, including because the value of her evidence is ‘diminished, it is not a fair trial fair for her or for the party for whom she is giving evidence. European Convention 1950 Art 6(1) rights are engaged. Means assessment permitting, and if legal aid is not already available, she may be entitled to legal aid as an exceptional case determination (LASPOA 2012 s 10(3)). If this is correct, resources questions can be addressed now, without changes to primary legislation. The law in this area – which Lady Hale’s comment in Re A [2012] above clarifies – could be represented by:

 

  • The list of special measures in YJCEA 1999 ss 23-28 as developed and explained by Lady Hale in Re W can be applied, by analogy or where otherwise already available, in family proceedings;
  • Regard being paid to the victim – ie A’s – right to a fair trial; and as to what is required to ensure she can give evidence of a quality which is not diminished (YJCEA 1999 ss 16 and 17); and
  • If rights are required to be protected by special measures and an intermediary (or cross-examination by an advocate in the same way as in YJCEA 1999 s 38(4)), then is her trial fair without this (if resources must be spent)?

 

If the answer to the final question above is ‘no’, then her fair trial rights, are engaged. If she has legal aid under a certificate within the terms of LASPOA 2012 Sch 1 paras 11-13 (domestic violence, children etc), then this needs amendment to secure intermediary or advocacy help (on analogy with YJCEA 1999 s 38(4)). If not, and fair trial rights are in issue, then s 10(3) exceptional case determination may be engaged.

 

Effective, imaginative and pro-active case management

 

The practical and resources issues which children and vulnerable witnesses raise fall into two main categories:

 

  • A as a victim or alleged abuse: that is, in the situation identified by the Guardian and Sir James Munby P (and dealt with in H v L and R (above) and (less satisfactorily) in Re K & H (Children) [2015] EWCA Civ 543 sub nom K and H (Private Law: Public Funding)[2016] 1 FLR 754
  • The child or other vulnerable individual (as eg defined by YJCEA 1999 s 16 and 17) – or a party, under the same pressures in family proceedings – who gives evidence, which may be diminished by the circumstances of the case, and where special measures are called for (see Lady Hale in Re W [2010] (above) and Re A (above)).

 

Given what was said by Lady Hale in Re W the second category of cases resolves itself by effective, imaginative and pro-active case management which, as Lady Hale asserts, judges can do, but fail to take on (things ‘the court can do but … that it is [not] used to doing at present’: Re W per citation of §[28] above). If a party has legal aid – and practitioners should be wary of any statutory charge issues if the certificate applies to other proceedings – then proactive case management and full use of court resources (eg video-link; live-link and screens) can deal most special measures. If particular intermediary support is needed and this has resources issues amendment of legal aid will be needed.

 

YJCEA 1999 s 38(4) (quoted above) – if this is taken as a model for now for what follows – deals with potentially abusive cross-examination, where B is unrepresented, by imposing on B an advocate (who is not ‘responsible’ to B). It requires him/her to assist the court and to ensure, in the circumstances, that B has a fair trial; and to do so by cross-examining A. This is funded by B cannot in law do so. How would that work in family proceedings? Under YJCEA 1999 s 40 payment from public funds is provided for (and the working of these payments is touched on by Justice denied? The experience of unrepresented defendants in the criminal courts April 2016, by Transform Justice at p 15 (http://www.transformjustice.org.uk/wp-content/uploads/2016/04/TJ-APRIL_Singles.pdf). If the Ministry of Justice can do this for victims in criminal proceedings, why not the same for those in a similar position – perhaps being cross-examined on the same facts as those in criminal proceedings – in family proceedings?

 

‘Special measures’ and legal aid

 

Category (1) (above) represents the Truss review problem. This can be funded – now – from an existing certificate (Sch 1 paras 11-13). If para 11-13 legal aid is not available, then if A’s evidence is ‘diminished’ and a fair trial threatened, Art 6(1) is engaged; and s 10(3) may bite. Either way, can YJCEA 1999 s 38(4) be applied by analogy in family proceedings? And, if so, can it be funded by legal aid?

 

With CrPR 2015 Part 23, s38(4) provides a model for court advocate appointment. B has a fair trial: his ‘accuser’ is professionally cross-examined. The following argument can be tested in the Family Division, alongside Lady Hale’s Re W§[28] comments:

 

  • a High Court judge has inherent jurisdiction to regulate the court’s procedure;
  • justice would be promoted (perhaps only made possible: operation of YJCEA 1999 Part 2 readily attests to this) by a ‘s38(4)’ appointment
  • this assistance cannot now be funded direct from public funds (cf YJCEA 1999 s40)
  • with pro-active case management this can be done on legal aid certificate (either under a conventional Sch 1, or a s10(3), certificate).