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Does the inclusion of families and children in family proceedings go far enough?

Adele Cameron-Douglas, barrister of 4 Paper Buildings, asks how children can continue to be involved in proceedings that concern them after their conclusion.

Adele Cameron-Douglas, barrister, 4 Paper Buildings

Adele Cameron-Douglas, barrister, 4 Paper Buildings

A feature of the modernisation of the family justice system has been the inclusion of children, young people and other vulnerable parties in proceedings. There has been a recognition that the family justice system has failed to ensure that children, the subjects of these most personally intrusive proceedings, understand and are afforded an opportunity to take an active role in a process to which they frequently neither choose nor wish to be a party. In so recognising the need for the inclusion of children in proceedings, attention has largely focused on whether, when and how children and vulnerable persons' voices should be heard.

These efforts champion the paramountcy principle of the Children Act 1989 and its aim to safeguard the welfare of children. Yet it is suggested that there has been an omission: in focussing efforts on the process up until the court has made a determination, a question remains: what does and should happen once proceedings have concluded? As the court makes a decision – just as they have been allowed to be heard, are children and families expected to be silent and cease to engage? Or should they be equally entitled and encouraged to remain involved after the judgment has been delivered? If so, particularly if they do not understand the decision, then how can they continue to be involved?

Current focus – to engage, but only until the judge retires
In the Family Justice Review, published in November 2011 under the 2010 to 2015 Conservative and Liberal Democrat coalition government, it is noted that

"Children and families often do not understand what is happening to them. As the availability of legal aid is limited in private law proceedings the number of people who represent themselves will increase and this issue will become more acute.

"More should be done to allow children to have a voice in proceedings. Even though a child's view may be different from the judgement of a professional on what is in their best interests, children need to understand what is happening, to have the opportunity to put their views forward and to know that, although decisions might be taken that are not what they want, their voices have been heard."1 (emphasis added)

The Family Justice Review recommended:

"Children and young people should be given age appropriate information to explain what is happening when they are involved in public and private law cases."2

From this it is clear that there is recognition that a child's voice is linked to the child being given the opportunity to understand and therefore, so far as it is possible, to have the ability to understand.

In response to the Family Justice Review, the Cafcass Young People's Board was extended, and the Family Justice Young People's Board (FJYPB) was formed. The FJYPB's Charter was updated in 2014 to outline eight guidelines, including:

"6. Children and young people should be kept informed about the court proceedings in an age appropriate manner […..]

"A follow up visit should be made by the Cafcass worker at the end of proceedings to share the judgement, enable understanding and signpost for the future."3

In February 2015 the Final Report of the Vulnerable Witnesses and Children Working Group set up by Sir James Munby, President of the Family Division, and chaired by Mr Justice Hayden and Ms Justice Russell was published. In setting out to consider guidelines on children meeting judges, and children and vulnerable parties giving evidence, the Working Group found these considerations are linked to the role of children and young people in family proceedings and how their voices can be brought to the fore in the family court. They were therefore a key feature of the Working Group's remit.4

The Working Group's Report stressed the need to give prominence to the treatment of children and families and encouraged their participation in the court process. In respect of support available, the Working Group concluded:

"In all family proceedings the lack of appropriate support and assistance for witnesses, whether they are parties, the children and young people or interveners would amount to a denial of justice."5

The Working Group recognised the need for a de-mystification of the family court and so recommended that Family Courts should hold open days.6  

Save for the FJYPB's aforementioned guideline, the focus on the modernisation of the family justice system has largely been increased transparency and improving the experience of children and vulnerable parties only during proceedings until the court has made a decision. There is then a troubling omission to consider what is ultimately, and also mutually, of concern for children, their families and professionals involved in each case: the court's decision.

More recently on 5th June 2017, speaking on the topic of "Are Children Human?" at the seventh World Congress of Family Law and Children's, Rights Baroness Hale said she had two "bees in her bonnet" about the treatment of children in legal proceedings: referring to children as "it" and referring to children by "soulless initials", suggesting that judges should refer to children by fictitious names as she does.7 If the family justice system is to treat children as "real human beings" as Baroness Hale rightly encourages, then it is suggested that the system must afford children and their families an opportunity to understand the decisions being made about them and to continue to have and to use their voices even after proceedings have concluded.

How then can children and families better understand decisions? And what are the benefits to be gained and the problems posed by approaches which depart from the inclusion of children and families in its traditional more common guise?

Judges get it
In reality, members of the judiciary are recognising the value and need for children and families to understand their decision-making and are modelling different approaches accordingly. Before his appointment to the Court of Appeal Lord Justice Peter Jackson delivered two judgments for the subject child as the reader, and in doing so he shunned the conventional judgment.

In Lancashire County Council v M and Others [2016] EWFC 9 Mr Justice Peter Jackson (as he then was) explicitly set out to ensure that the subject children and mother could understand his judgment. The result is something which attracted acclaim for Lord Justice Jackson, from both legal commentators and across the spectrum of main stream media, and for which Lord Justice Jackson won an award from the Plain English Campaign. In the judgment legal jargon and complex sentences are shed in favour of a concise narrative which features emojis and which has a relaxed empathetic tenor – although the significance of the use of emojis should not be overstated. The emojis feature not as an alternative and novel way to portray judicial reasoning, but rather because they were contained in a piece of evidence before the court and the learned judge was simply recording his interpretation as to what the emoji portrayed.

In Re A (Letter to a Young Person) [2017] EWFC 48, refusing a father's application for permission to relocate to Scandinavia, Peter Jackson J gave his decision in the form of a letter to the subject child 'Sam'; he writes "This case is about you and your future, so I am writing this letter as a way of giving my decision to you and to your parents". The letter is crafted with a similarly empathetic and considerate tenor as the judgment in Lancashire County Council v M. The learned judge explains as a prelude to his letter that Sam had in fact made the original application for permission to relocate, being competent to instruct his own solicitor, and that the court had heard oral evidence from Sam.

Lord Justice Jackson's approaches are laudable. The judgments put the subject children at the centre not only of the court's decision as required by statute, but also at the centre of its delivery. Yet the judgments prompt questions about the extent to which children should and need to know the reasons for a judge's decision. For example, by explaining to Sam "when you gave your evidence I didn't get the feeling that you actually see your future in Scandinavia at all. Instead, what I saw was you doing your duty by your dad while trying not to be too unfair to your mum" is Sam going to feel responsible for the decision? Perhaps not because the judgment is balanced, but who is to know where Sam might focus his attention when reading the letter.

Further, the judgments should not be viewed as universally appropriate for all proceedings; not least because the facts in both Lancashire v M and Re A (Letter to a Young Person) lend themselves to a neat simplification, but also because simplification of a judgment will not necessarily be desirable where there has been complex and detailed evidence, for instance in respect of abuse inflicted through sexual assault or physical violence whether to or by the child. In such cases the account and analysis should be sufficiently detailed. 

A third approach which is likely to be more appropriate for such cases is one where a form of supplementary child friendly judgment or script, or letter explaining the judgment is provided – sometimes with the judge having had input from the children's guardian and the parties' representatives.

A reported example of this can be found in Re B (A Child by her Guardian) [2017] EWHC 488 (Fam). Ms Justice Russell recorded in her judgment that she would write a letter to the child, who was approaching nine years old, explaining her decision in respect of the child's 'psychological' mother's application for a child arrangements order – something Russell J said the child's guardian and the child's biological mother welcomed, and which the biological mother had said the child would be pleased to receive.

Such an approach has the benefit of not sacrificing genuine and fully reasoned judgments at the altar of simplicity, which may include not only complicated reasons but also discussion of facts which could be harmful or otherwise detrimental for the subject child to learn of. Yet it is not a wholly satisfactory approach either. Drafting a supplementary judgment or script adds to the already heavily burdened workload born by the judiciary, guardians and advocates. Further, substantive input from representatives would put the judiciary at risk of a rebuke for adopting the drafting of a party, such as that levelled by Mrs Justice Pauffley in Re NL (A Child) (Appeal: Interim Care Order: Facts and Reasons) [2014] EWHC 270 (Fam) citing the Court of Appeal judgment of Crinon and anor v IG Markets Ltd [2013] EWCA Civ 587. Ultimately, judgments must come from the court, not the representatives; this approach may risk blurring that boundary whilst also creating challenges regarding monitoring, and parties' article 6 rights.

What's the point?
The approaches identified prompt the question for whom and what purpose are judgments (as opposed to decisions) given? In addition to being necessary for administrative purposes, it is suggested that they can and should be accessible for the good of the children and families whom they concern.

Ultimately, lawyers, social workers, and other professionals work with these children and families for a finite period and, once their work is completed, it is the family who are left to process and manage the consequences of the court's decision. Is justice denied if the court's decision is not de-mystified for them?

Providing only a judgment littered with legal jargon relies on several assumptions about professionals. It assumes that professionals will be involved and that they will be involved after the decision; and that they will have the capacity and opportunity, and indeed can be trusted by the child and or family, to explain the decision.

Addressing the first assumption, this belies reality. In recent years, there has been an increase in litigants appearing in person, and as was highlighted by the Family Justice Review , the increase in litigants in person only intensifies the need to ensure that subject families understand the family justice system.

In circumstances where professionals are involved, since professionals are most likely to be present during proceedings and immediately after judgment, the use of legal jargon also prevents consideration about timing. From a therapeutic perspective, a judgment (in whatever guise) might have more value months or years later. But, even if it is decided that a judgment should be explained immediately, there is of course a further benefit to simplified judgments , scripts or letters: they assist the professional tasked with explaining them.

To assume that professionals (for example, lawyers, social workers or therapeutic providers) will be in a position and best-placed to explain the judgment to the child also overlooks the issue posed by increased transparency in family courts and judgments being reported. There are circumstances where it will not be desirable for a subject to read of or know every detail a court has considered; where knowledge could be harmful rather than therapeutic, yet a curious child might easily find the judgment online. Having access to a simplified judgment could then have an added advantage of quenching such curiosity, thereby acting as a protective measure for the child in the future.

Of course, that is not to suggest that it is in the interests of children and families simply to be given a judgment in a friendly guise without considering factors including the child's age, measures for delivering the judgment, and how it might be utilised as a therapeutic tool. Take for example a decision concerning a young child and facts which do not readily lend themselves to neat simplification: a letter might be appropriate. The decision could then be delivered in stages: the child is first told about the judge's decision, the child is then read the letter by a parent or guardian or the child reads the letter themselves in the parent or guardian's presence, and then the child is given the letter to keep. Indeed, in Re A (Letter to a Young Person) the judgment records that the letter was given to Sam's solicitors to give to Sam and to discuss with him. In respect of a simplified judgment or letter's therapeutic value, just as picture books are used to help children overcome traumatic events, so too could a letter or simplified judgment, or a simplified judgment with its summary of the findings of expert assessments be used to help the child understand what the outcome of those assessments meant. In failing to ensure that children and families have some means of understanding the court's decision on their own, or with limited assistance, what might be a critical opportunity for the judgment to be utilised as a therapeutic tool, immediately and in the future, is lost.

Whatever approach is adopted, ensuring that children understand decisions is clearly a process which requires forward planning, takes several stages, and ideally has the involvement and agreement of each party.

Some conclusions
It is generally agreed that the court process needs to be de-mystified and this is being addressed through organisations such as The Transparency Project which has produced a guidance note on the publication of family court judgments. However, a holistic approach needs to be taken when considering how and what needs de-mystification. Why de-mystify family courts if the outcomes the courts determine remain a mystery to those to whom they relate? It is suggested that judgments should also be de-mystified, otherwise justice risks being denied. If children and families do not understand the reasons for the decision, then do the measures in place to encourage the participation of children and families in their proceedings, though well intended, merely function in effect as lip service to the recognition for the need for greater involvement of children and families? Baroness Hale's plea for children to be treated as humans is compelling, but it needs to go further. Why make children seem more real without ensuring that the children themselves feel real? Inclusion should not stop as the judge considers their decision, or as children and families exit court rooms.

Judges who already challenge convention, therefore, and draft judgments for children and their families and not just for the lawyers, should be praised and encouraged. Certainly, this approach needs now to form part of a careful re-appraisal of how we as professionals 'do' law for subject children and families. It is hoped that this would enable the voices which we are seeking to promote to remain active and heard, even once the court has made its decision.

  Family Justice Review (2011), at paras. 2.13-2.14.
[2]  Ibid, at p. 48.
[3]  Similarly, the 2010 Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice at paragraph 75 recommend that the child's lawyer guardian ad litem or legal representative should communicate and explain the court's decision or judgment to the child. 
[4]  The Final Report (March 2015) Children and Vulnerable Witnesses Working Group, at para. 21.
[5]  Ibid, at para. 31.
[6]  Ibid, at para. 34.
[7]  F Garland,'Court chief criticises judgments noting children as 'soulless initials', The Irish Times (5 June 2017).
[8]  Family Justice Review, above n 1.
[9]  It could be argued that it is simply a matter of style: some judges' drafting style is more academic, others longer but in plainer English, and all that is needed is for judges to adopt the latter approach. Whilst this might be true for some cases, it will may not be for all and to suggest otherwise glosses over the need to consider for whom the judgment is for and think holistically about how subject children can understand and benefit from the delivery of the decision itself.