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The Participation and Involvement of Children in Family Proceedings

Rachel Langdale QC and James Robottom of 7 Bedford Row consider the jurisprudence and practical realities concerning the participation and involvement of children in proceedings relating to them.

Rachel Langdale QC, 7 Bedford RowJames Robottom, 7 Bedford Row, barrister



 









Rachel Langdale QC
and James Robottom of 7 Bedford Row


Introduction
English law has conventionally adopted a paternalistic approach towards children.

Historically, wardship decisions were (and still are) made in the "best interests" of children; public law Children Act proceedings are protective in nature.   Article 3 of the United Nations Convention of the Rights of the Child ("CRC") states that:

"In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration."

Echoes of John Stuart Mill's 19th century perspective that children lack the "maturity of faculties" to fall within his theory of a right to autonomy1  can be heard in Dame Elizabeth Butler-Sloss' 2001 judgment in Re W (Contact: Joining Child as a Party) 2003 1 FLR 681:

"The child has a right to a relationship with his father even if he does not want it. The child's welfare demands that efforts should be made to make it possible that it can be."

How is the paternalistic approach of taking decisions in a child's best interests (and sometimes against their will) to be reconciled with a child's autonomy and rights to participate in society?2  Article 12 of the CRC provides that:

"(i) 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.

(ii) 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."

Attendance at court
The issue of a child's attendance at court was revisited by the High Court in the recent case of Re K (A Child) [2011] EWHC 1082, reported sub nom A City Council v T, J & K [2011] 2 FLR 803. The case concerned a local authority's application to keep K, a 13 year old girl, in secure accommodation for three months.  K did  not want to be in care, or secure accommodation. Peter Jackson J described her  as 'an angry and damaged girl who is determined to fight the system until she is allowed to go home.'  At an initial hearing that K did not attend,  a circuit judge granted an interim secure accommodation order. Prior to the hearing of the full application, K made it clear to her guardian that she wanted to attend on the next occasion. The judge referred the matter to the High Court for a preliminary decision on this issue.

Peter Jackson J referred to Re W (Secure Accommodation Order: Attendance at Court) [1994] 2 FLR 1092 which concerned a younger child (aged 10), but was otherwise factually similar. In Re W, Ewbank J concluded that:

"… the court must always bear in mind that attendance at court is likely to be harmful to the child, and the court should only allow the child to attend if it is satisfied that attendance is in the interests of the child…"

Peter Jackson J observed, however, that 'In the generation that has passed since the decision in Re W… thinking about these issues has undoubtedly evolved… It can no longer be presumed that attendance in court is likely to be harmful…'   

Peter Jackson J commented that children should not be required to establish that their attendance at court is in their best interests:

'The starting point should be an open evaluation of the consequences of attendance or non-attendance in terms of the welfare of the child and the court's ability to manage its proceedings fairly.'

Each case will depend on its own circumstances, but the following factors will generally be relevant:

i. The age and level of understanding of the child.

ii. The nature and strength of the child's wishes.

iii. The child's emotional and  psychological state.

iv. The effect of influence from others. The court should be on its guard against signs of manipulation of the child.

v. The matters to be discussed at the hearing, as required by Rule 12.14 FPR 2010.

vi. The evidence to be given.

vii. The child's behaviour.

viii. Practical and logistical considerations.

ix. The integrity of the proceedings. The court retains the power to manage proceedings in a way that achieves overall fairness.

The decision in A City Council v T, therefore, moves away from the protective stance which dominates the reasoning behind Re W.   Peter Jackson J explicitly referred to the moral authority provided by Article 12 of the CRC at the outset of his judgment (para.5), and  also commented upon the effect that the Human Rights Act 1998 may have had upon the attitude of English courts towards the participation of children in proceedings (para.33). The emphasis on children's participatory rights in the judgment dovetails with the traditional emphasis on procedural rights and positive obligations from Strasbourg. 

Oral evidence
In what circumstances should children be called upon to give oral evidence (and therefore be cross-examined) in family proceedings? The traditional position advanced by Smith LJ in LM v Medway Council [2007] EWCA Civ 9, [2007] 1 FLR 1698 was:

"The correct starting point is that it is undesirable that a child should have to give evidence in care proceedings and that particular justification will be required before that course is taken.  There will be some cases in which it will be right to make an order.  In my view, they will be rare."

In Re W (Children)(Family Proceedings: Evidence) [2010] UKSC 12, [2010] 1 FLR 1485 the Supreme Court re-visited the question of if and when children should be called upon to give live evidence in care proceedings.   The facts in Re W concerned the care of a 14 year old, who had made allegations of sexual abuse against her step-father. It had been agreed at a case management hearing that there should be a fact-finding in respect of the allegations, and that the girl would give live evidence by video-link. However, the judge asked for further argument on the issue. The local authority, having considered material received from the police, decided not to call the girl and sought to rely on her ABE interview instead. The judge then refused the father's application for her to be called. The father's appeals were heard in quick succession by the Court of Appeal and Supreme Court.

The Court of Appeal dismissed the father's appeal, adhering to LM v Medway and the other authorities on the point.  However, Wall LJ and Wilson LJ suggested that the time may have come for 'a wider consideration of the issue in relation to family proceedings than is possible in the light of the doctrine of precedent.'  Following referral from the Court of Appeal, a working party on the issue of children giving evidence in family proceedings was set up by the Family Justice Council. Guidelines were produced in December 2011, and are summarised below.

Re W, meanwhile, progressed to the Supreme Court. Baroness Hale, giving the court's judgment, set aside the long-standing presumption against children giving oral testimony in Children Act 1989 proceedings.  Baroness Hale concluded as follows:

"[22]   The existing law erects a presumption against a child giving evidence which requires to be rebutted by anyone seeking to put questions to the child. That cannot be reconciled with the approach of the European Court of Human Rights, which always aims to strike a fair balance between competing European Convention rights. Article 6 requires that the proceedings overall be fair and this normally entails an opportunity to challenge the evidence presented by the other side… Striking that balance in care proceedings may well mean that the child should not be called to give evidence in the great majority of cases, but that is a result and not a presumption or even a starting point.

[23]  The object of the proceedings is to achieve a fair trial in the determination of the rights of all the people involved. Children are harmed if they are taken away from their families for no good reason. Children are harmed if they are left in abusive families. This means that the court must admit all the evidence which bears upon the relevant questions: whether the threshold criteria justifying State intervention have been proved; if they have, what action if any will be in the best interests of the child? The court cannot ignore relevant evidence just because other evidence might have been better. It will have to do the best it can on what it has."

In each case the court will have to weigh the advantages that the child's oral evidence will bring to the determination of the truth against the damage it may do to the welfare of that, or any other, child (para.24).  In analysing the advantages the child's oral evidence will bring the court will have regard to the following factors (paras. 25 and 26):

(i) The issues necessary to determine the case;

(ii) Whether the child's oral evidence is necessary in order to determine those issues;

(iii) The quality of any available ABE interview;

(iv) The age and maturity of the child;

(v) The length of time since the relevant events occurred.

In analysing the potential damage it may do to the welfare of that or any other child, the court will consider:

(i) The age and maturity of the child;

(ii) The length of time since the events occurred;

(iii) The support (or lack of it) which the child has from family or other sources;

(iv) The child's own wishes and feelings about giving evidence ('an unwilling child should rarely, if ever, be obliged to give evidence', para.26);

(v) The views of the guardian and if appropriate those with parental responsibility;

(vi) The risk of delay to the proceedings if evidence is given;

(vii) Whether any concurrent criminal proceedings might increase the risk of harm to the child caused in the family courts.

Baroness Hale discussed techniques and technology which might be used by the court to maximise the advantage to be gained from the evidence whilst minimising the harm caused. For example, cross-examination via video link, and the use of intermediaries. In the authors' experience, the use of intermediaries is developing, and intermediaries can assist in securing the best available evidence.

Baroness Hale did not suggest that the same approach should apply when considering whether children should give evidence in private law proceedings:

"Allegations are not being made by a neutral and expert local authority which has nothing to gain by making them, but by a parent who is seeking to gain advantage in the battle against the other parent. This does not mean that they are false but it does increase the risk of misinterpretation, exaggeration or downright fabrication. On the other hand, the child will not routinely have the protection and support of a CAFCASS guardian. There are also many more litigants in person in private proceedings. So if the court does not reach the conclusion that justice cannot be done unless the child gives evidence, it will have to take very careful precautions to ensure that the child is not harmed by this."

Guidelines in relation to children giving evidence in family proceedings
For  guidelines relevant to the consideration of whether or not a child should be further questioned or give evidence in family proceedings, see the Working Party of the Family Justice Council; Guidelines in relation to children giving evidence in family proceedings, December 2011. In carrying out the balancing exercise referred to at paragraph 11 above, the Court should have regard to:

(a) the child's wishes and feelings; in particular their willingness to give evidence; as an unwilling child should rarely if ever be obliged to give evidence;
(b) the child's particular needs and abilities;
(c) the issues that need to be determined;
(d) the nature and gravity of the allegations;
(e) the source of the allegations;
(f) whether the case depends on the child's allegations alone;
(g) corroborative evidence;
(h) the quality and reliability of the existing evidence;
(i) the quality and reliability of any ABE interview;
(j) whether the child has retracted allegations;
(k) the nature of any challenge a party wishes to make;
(l) the age of the child; generally the older the child the better; 
(m) the maturity, vulnerability and understanding, capacity and competence of the child;
(n) the length of time since the events in question;
(o) the support or lack of support the child has;
(p) the quality and importance of the child's evidence;
(q) the right to challenge evidence;
(r) whether justice can be done without further questioning;
(s) the risk of further delay;
(t) the views of the guardian;
(u) specific risks from the child giving evidence twice in criminal or other and family proceedings;
(v) the serious consequences of the allegations ie whether the findings impact upon care and contact decisions.

On a practical level, we suggest that apart from cases involving allegations of sexual abuse, it is likely to remain unusual for children to give oral evidence in family proceedings. See in this context the decision of Re H (A Child) [2012] 1 F.L.R. 186, where the Court of Appeal dismissed the father's appeal, despite recognising that the trial judge had erred in applying the old presumption in LM v Medway as opposed to that in Re W, on the basis that the guidance in the latter 'does not turn the world on its head' and that the discretion was likely to have been exercised in the negative in any case.

Wishes and feelings
Section 1(3) Children Act 1989 requires a court, when considering whether to make a public or private law order in respect of a child, to have regard to 'the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding)'. Wishes and feelings remain but a single limb of the welfare checklist: the court has a discretion as to which factors on the list are given more weight in any given decisions. Furthermore, as the flexible concept of 'welfare' remains paramount under s.1(1) a court may override the wishes even of an older child, if to act in accordance with them would seriously compromise his or her long-term welfare – see Re W (A Minor)(Medical Treatment: Court's Jurisdiction) [1993] Fam 64; Re R (A Minor) (Wardship: Medical Treatment) [1992] Fam 11.  The case law on the importance of wishes and feelings is sometimes difficult to reconcile. In Re R (Residence Order) [2009] EWCA Civ 445, [2010] 1 FLR 509, for example, the Court of Appeal emphasised that courts must be careful not to discount the wishes and feelings (and the reasons behind them) of mature children as against other welfare factors. As far as age was concerned, Rix LJ reiterated the views of Dame Elizabeth Butler-Sloss P in Re L (A Child) (Contact: Domestic Violence) [2000] 2 FLR 334, where she quoted approvingly the following words from Contact and Domestic Violence – The Expert's Court Report [2000] Fam Law 615:

"… the older the child the more seriously they should be viewed and the more insulting and discrediting to the child to have them ignored. As a rough rule we would see these as needing to be taken account of at any age; above 10 we see these as carrying considerable weight with 6–10 as an intermediate stage and at under 6 as often indistinguishable in many ways from the wishes of the main carer (assuming normal development). In domestic violence, where the child has memories of that violence we would see their wishes as warranting much more weight than in situations where no real reason for the child's resistance appears to exist."

Re R contrasts with the position taken in Re S (Contact: Intractable Dispute) [2010] 2 FLR 1517, where the Court of Appeal held that the judge had erred in attaching a proviso to a contact order which entitled children aged 12 and 13 to decide whether or not to take up each contact session with their father or not. Thorpe LJ stated as follows (at para.7):

"Miss Gibbons has said, well, what about his wishes and feelings? My response to that is that they are trumped by his welfare.  Looking on in the attendance note he says to the guardian:

'I want to leave [H School]. It's much more strict than it used to be. Me and my friends get picked on for things that never used to matter.'

Well, if wishes and feelings rule he would be walking away from H School. But fortunately they do not and children of his age have to have their lives regulated by adult judgment."

Much will depend on the circumstances of the individual case, and the discretion conferred by the checklist is inherently wide. The position is slightly different under the Hague Convention.  Article 13 has led to English courts adopting a more strenuous approach towards wishes and feelings in abduction cases. Article 13 of the Convention, states, inter alia, that:

"The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views."

Thus, as Baker J observed in WF v FJ, BF & RF [2010] EWHC 2909 (Fam), [2011] 1 FLR 1153, it is a feature of the abduction jurisdiction that a child's wishes and feelings and objections to summary return are central to proceedings.  In Re W (Abduction: Child's Objections) [2010] EWCA Civ 520, [2010] 2 FLR 1165 Wilson LJ, as he then was, made the following observation (at para.17):

"Over the last thirty years the need to take decisions about much younger children not necessarily in accordance with their wishes but at any rate in the light of their wishes has taken hold: see Article 12 of the UN Convention on the Rights of the Child and note, for EU states, the subtle shift of emphasis given to Article 13 of the Hague Convention by Article 11(2) ... of Brussels II Revised.  Fortunately Article 13 was drawn in terms sufficiently flexible to accommodate this development in international thinking; and although her comment was obiter, I am clear that, in the context, the observation of Baroness Hale of Richmond in Re D (Abduction: Rights of Custody) [above] at para 59 that "children should be heard far more frequently in Hague Convention cases than has been the practice hitherto" related to the defence of a child's objections."

Article 11(2) of Brussels II Revised enshrines a presumption that in Article 12 and 13 Hague Convention proceedings 'it shall be ensured that the child is given the opportunity to be heard during the proceedings unless this appears inappropriate having regard to his or her age or degree of maturity.' 

In WF v FJ, BF & RF [2010] EWHC 2909 (Fam), [2011] 1 FLR 1153 Baker J sought to clarify the case law on children's wishes and objections to return and Article 13. He emphasised that there is no particular age where a child is to be considered as having attained sufficient maturity for his or her views to be taken into account (para.27), and that the gateway or threshold for taking into account a child's objections is 'fairly low', in accordance with the words used by Wilson LJ in Re W (para.30). It is

"well accepted that the consideration of the child's objections to the obligation to return under Article 12 involves considering three broad areas:

(a) that the particular child objected to being returned? If so,
(b) has the particular child attained an age and degree of maturity at which it is appropriate to take account of his views? If so,
(c) how should the court exercise its discretion?"

Representation of children at court
The general rule is that a child cannot make an application or be joined as a party to proceedings unless he has a guardian appointed to do so on his behalf (Children Act 1989 s.41(1)-(2)), but Rule 16.6 FPR 2010 provides an exception and permits a child independently to instruct a solicitor provided either that:

(a) The child has obtained the Court's permission to do so; or
(b) A solicitor:

(i) Considers that the child is able, having regard to the child's understanding, to give instructions in relation to the proceedings; and
(ii) Has accepted instructions from that child to act for that child in the proceedings and, if the proceedings have begun, the solicitor is already acting.

The tandem model of having both a guardian and solicitor in place to represent the child or children was referred to as the 'Rolls Royce' of children's representation and 'the envy of many other jurisdictions' by Thorpe LJ in Mabon v Mabon [2005] EWCA Civ 634, [2005] 2 FLR 011. The recently published final report of the Family Justice Review recommends keeping the tandem model in place in care proceedings, but it will be of concern to many practitioners that it asserts that it should be used 'in a more proportionate way',3  especially given the standard delay in the appointment of guardians in some areas of the country. The Review does, however, advocate that children should be given age appropriate information to explain the court process and why they are involved in it; further, they should as early as possible be supported to make their views known and older children should be offered a menu of options to lay out the ways in which they might do this.4  

In private law proceedings the court may make a child a party to proceedings if it considers that it is in his or her interests to do so (FPR 2010 R.16.2(1)). The practice direction 16A – Family Proceedings: Representation of Children, indicates, inter alia, that:

(a) Making the child a party to the proceedings is a step that will be taken only in cases which involve an issue of significant difficulty and consequently will occur in only a minority of cases.

(b) The decision to make the child a party will always be exclusively that of the court.

(c) It must be recognised that separate representation of the child may result in a delay in the resolution of the proceedings. When deciding whether to direct that a child be made a party, the court will take into account the risk of delay or other facts adverse to the welfare of the child.
 
(d) The court's primary consideration will be the best interests of the child.

In Mabon v Mabon in 2005 the Court of Appeal held that the time had come to recognise the growing importance of the acknowledgement of autonomy and consequential rights of children both nationally and internationally, and particularly under the CRC and ECHR. It was held that Rule 9.2A FPR 1991 - the predecessor to R.16.6 above - was sufficiently widely drafted to comply with the two international instruments.  In reaching his judgment Thorpe LJ concluded as follows (at para.28):

"Unless we in this jurisdiction are to fall out of step with similar societies as they safeguard Art 12 rights, we must, in the case of articulate teenagers, accept that the right to freedom of expression and participation outweighs the paternalistic judgment of welfare."

There remains a need to ensure, however, at times when resources in general are extremely stretched, that the views of children are being sufficiently represented on the ground in individual cases.

Children meeting Judges: a good idea?
During times of strained resources, is there scope for a greater role for judges to determine the wishes and feelings of children first hand? In his judgment in Mabon v Mabon,  discussing the difficultly children find in participating  in family proceedings in England and Wales, Wall LJ stated as follows (at para.38):

"An example of this difficulty, and one which perplexes our colleagues on the continent of Europe, is the reluctance of the English judge to talk to children in private. This reluctance has several origins, but one of them is undoubtedly rooted in the rules of evidence and the adversarial mode of trial. What is said in private by the child to the judge cannot be tested in evidence or in cross-examination. As a consequence, a judge in England and Wales cannot promise a child that any conversation with the child will be entirely confidential. That fact may inhibit children from expressing their true wishes and feelings to the judge in such circumstances – see, for example, B v B (Minors) (Interviews and Listing Arrangements) [1994] 2 FLR 489."

More recently, Baroness Hale, speaking extra-judicially, advocated a greater role for the judiciary in meeting children who are involved in proceedings. She listed several advantages to doing so:

a. First, the court will see the child as a real person, rather than as the object of other people's disputes or concerns.

b. The court may understand the child's wishes and feelings better than is possible at second or third hand.

c. The child will feel respected, valued and involved, as long as he or she is not coerced or obliged to makes choices against their will.

d. It represents an opportunity to help the child to understand the court's rules.

e. Parents may be reassured that the court has been actively involved rather than simply rubber-stamping professional's opinions.5

A 2008 Family Justice Council paper on enhancing the participation of children in proceedings stated that 'it is not the task of the judge to ascertain the wishes and feelings of the child', and warned against judges meeting children as an alternative to the services normally provided by CAFCASS.6   More recently, in April 2010,  the Guidelines for Judges Meeting Children who are subject to Family Proceedings (issued by the Family Justice Council and approved by the President of the Family Division) emphasised that, although 'the purpose and proposed content of the meeting are a matter for the discretion of the judge, ....[i[t cannot be stressed too often that the child's meeting with the judge is not for the purpose of gathering evidence. That is the responsibility of the CAFCASS officer. The purpose is to enable the child to gain some understanding of what is going on, and to be reassured that the judge has understood him/her.'

This cautious approach is more comfortably in keeping with the traditional emphasis in English law on evidence emerging through the adversarial process. The Revised Private Law Programme asks at para.5.5.d. 'who will inform the child of the outcome of the case where appropriate?'  A judge exploring beyond the nature of the proceedings and/or their outcome with a child may lead to difficulty with Article 6 ECHR compliance. However, in private law proceedings, and with the parties' consent, we suggest there may be a greater role for the judge's direct involvement with children than previously contemplated.

Conclusion
We suggest that the case law discussed above highlights a developing jurisprudence   in which respect for childrens' participatory rights in proceedings about them is more readily acknowledged. In practice, the involvement of young people in court  decisions will inevitably be influenced  by the resources allocated to this issue. As Wall LJ said in Mabon v Mabon  "The common law adversarial mode of trial which still forms the basis of our civil family law proceedings, although modified and in continuous development, makes it difficult for all but the most confident and competent children to participate effectively".  Without the benefit of representation by those experienced in encouraging the involvement of children and young people, the rights afforded to children under Article 12 are in danger of slipping away.

______________________
Footnotes

[1] J.S. Mill, On Liberty, 1859.
[2] See, for instance, Fortin, Jane, at Childrens Rights and the Developing Law, Third Ed Cambridge University Press, 2009, pp.19-30.
[3] The Family Justice Review, Final Report, November 2011, p.126.
[4] Ibid, p.6.
[5] 'Can you hear me, Your Honour?', The Hershman Levy Memorial Lecture 2011, Rt Hon Lady Hale DBE, PC, pp14-15, http://www.alc.org.uk/  .
[6] Enhancing the Participation of Children and Young People in Family Proceedings: Starting the Debate, 2008, para.13.