David Burrows laments a lack of progress on the rights of children in the family courts as set out in the various conventions and charters to which the UK is a signatory.
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.
To secure this aim, it continues:
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.
But how, in English law, does a child secure this ‘opportunity to be heard in [court etc] proceedings’? In Welsh law, the position is clearer, though it is not reflected in procedural rules. If a child knows of their rights, Rights of Children and Young Persons (Wales) Measure 2011 (nawm 2) article 1 requires ministers, in the exercise of their functions, to have regard to the UNCRC. That and the ‘opportunity to be heard’ requirement have yet to find their way into the Family Procedure Rules 2010 SI No 2955 (FPR 2010). And if a child wants to enforce any right under article 12, how can this be done?
As English and Welsh law (together called ‘English’) now stand, there is no means for a child to enforce the UNCRC if the national government does not do so. By contrast, article 24 of the
Charter of Fundamental Rights of the European Union (CFREU) is enforceable in the Court of Justice of the European Union. Article 24 is in stronger terms than UNCRC article 12. It states:
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.
However, unless they are replicated in English statute or procedural law – for which there are no immediate plans – rights under article 24, like those in the rest of the CFREU, will disappear on EU withdrawal ‘exit day’ (see European Union (Withdrawal) Bill clause 5(4), which abolishes the CFREU). For children’s rights, Brexit is a backward step.
Children’s rights in English law
So how are a child’s rights reflected in English law? This involves considering procedural rules, mostly FPR 2010 Part 16. But first, a little history. The Children Act (CA) 1989 came into operation in October 1991, and was accompanied by the Family Proceedings Rules 1991 SI No 1247, which, in Part 9, added a fresh set of provisions. A radical departure of the new law was that children of ‘intelligence and understanding’ (per Lord Scarman in
Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112; [1986] 1 FLR 224) were accorded rights including, in what became known as private law (CA 1989 Part 2) proceedings, to make their own applications to the court (see, for example,
Re CT (A Minor) (Wardship: Representation) [1993] 2 FLR 278; [1994] Fam 49, CA).
Family proceedings had a fresh set of rules from April 2011 (FPR 2010), but for children proceedings the new rules were a rehash of the old: nothing had changed since 1991. Outside rule-making, the children law world has moved on since 1991, such that by 2016, in
Re W (Care Proceedings: Child’s Representation) [2016] EWCA Civ 1051; [2017] 1 WLR 1027, Black LJ (now Lady Black) could describe the Part 16 scheme as complex:
There was some divergence of view as to which precise part of Rule 16 FPR 2010 should be the focus of the court’s attention. This was explored during the hearing but I do not propose to go into the details because there was, in fact, agreement as to the ‘test’ that determined whether or not FW was entitled to be separately represented. I should make clear that when I speak of FW being separately represented, this is a loose term not entirely reflecting the complexity of the scheme under section 41 of the Children Act 1989 and Rule 16 FPR 2010. What I seek to convey by it is a situation in which FW separates from the children’s guardian appointed to represent her interests, and gives her own instructions to a solicitor, as occurred in the original care proceedings … (para 18).
In parallel with the CA 1989, legal aid for children was reformed (perhaps the last substantial extension of legal aid provision) so that those involved – parents, children and selected others – had legal aid regardless of the merit of their case or of their means. That scheme has survived the Legal Aid, Sentencing and Punishment of Offenders Act 2012, but its terminology has lost touch with the original children proceedings scheme: for example, ‘specified proceedings’ under CA 1989 s41(6) (where a child will normally have a children’s guardian) is not the same as a ‘special Children Act 1989 case’ (Civil Legal Aid (Merits Criteria) Regulations 2013 SI No 104 reg 2), and this distinction – and who is party to a CA 1989 application under FPR 2010 r12.3 (parties to children proceedings) – may have led the Court of Appeal to misunderstand the law in
Re W (above).
1Explained further in David Burrows, Children’s views and evidence, Bloomsbury, 2017, chapter 6.Representation in family proceedings
The main types of children proceedings with which FPR 2010 Part 16 is concerned are:
•where a child makes their own application to court, with the permission of the judge (CA 1989 s10(8));
•where a child is involved as the subject of their parents’ child arrangements (residence or contact, mostly) order proceedings (CA 1989 Part 2);
•care proceedings: where a local authority applies to take a child into care (CA 1989 Parts 4 and 5); and
The subject further divides into proceedings where a child wishes to exercise any right that the court recognises to express a view; and proceedings where a child may be required to give evidence. As the courts have made clear, at least since
Mabon v Mabon and others [2005] EWCA Civ 634; [2005] Fam 366, these are different roles. The first may involve the child giving information or expressing a view in a number of ways, from talking with a children’s guardian to seeing the judge in court; whereas giving evidence may involve (say) the child’s evidence as to abuse by a step-parent. The first involves an assessment of a child’s maturity and how they are to know that they have any rights; the second raises questions of compellability and of how the evidence is to be heard and challenged.
Alongside this are the questions of when a child is entitled to be represented and what the legal aid provisions are for an individual child – questions that are beyond the scope of this article.
Child’s views; child’s evidence
In Re D, Ryder LJ said that hearing a child’s views (David, the child at the centre of the case, was only seven) is a ‘fundamental principle’ of our law.
A child’s views and a child’s evidence, and how these shall be put before the court, have been the subject of a range of important case law and guidance over the past 10 years and more, for example, from Lady Hale in the House of Lords in
Re D (A Child) (Abduction: Rights of Custody) [2006] UKHL 51; [2007] 1 FLR 961 to Ryder LJ in
Re D (A Child) (International Recognition) [2016] EWCA Civ 12; [2016] 2 FLR 347. Hearing a child’s views (David in
Re D (International Recognition) was only seven) is a ‘fundamental principle’ of our law said Ryder LJ by reference to CFREU article 24 and CA 1989 s1(3)(a) (wishes and feelings of the child).
The Family Justice Council produced Guidelines for judges meeting children who are subject to family proceedings, April 2010, [2010] 2 FLR 1872. This is for judges, not children, and declares its aim as being ‘to encourage judges to enable children to feel more involved in proceedings’ that affect them and to ensure judges have understood their wishes and feelings. Lady Hale has stressed that there are a variety of ways in which children’s views can be heard.
Children’s evidence (as distinct from views) is another landscape that, in family proceedings, is crossed by confusing pathways. In
Re W (Children) (Abuse: Oral Evidence) [2010] UKSC 12; [2010] 1 FLR 1485, Lady Hale explained how family lawyers could deal with evidence from children. The Family Justice Council followed this with
Guidelines in relation to children giving evidence in family proceedings, December 2011, [2012] Fam Law 70.
The Court of Appeal still wobbles. For example, over a strong dissenting judgment from Gloster LJ, the court could still find, in
Re S (Care Proceedings: Case Management) [2016] EWCA Civ 83; [2017] 1 FLR 1476, that a 15-year-old child’s ‘evidence’ (which the police turned down as not sufficiently reliable in criminal proceedings) should be received as hearsay from two social workers and could not be challenged by or on behalf of a father who stood to lose contact with his child. That could never have happened in criminal proceedings under Youth Justice and Criminal Evidence Act 1999 Part 2, where the evidence of the ‘child’ would have been dealt with by special measures (as explained by Lady Hale in
Re A (Sexual Abuse: Disclosure) [2012] UKSC 60; [2013] 1 FLR 948; [2013] 2 AC 66 at para 36).
Still a long way to go
None of this creates procedural law that reflects children’s rights under modern CFREU and UNCRC principles. Still less does it explain how children who may have rights are to be told of those rights; and to be introduced to the court if they want to meet with the judge (and supposing the ‘judge’ is a bench of magistrates?). Over 10 years ago, Lady Hale said in a Hague Convention case (but the same applies in all children proceedings), Re D (Abduction) (above), echoing UNCRC article 12.2:
59. … children should be heard far more frequently … The only question is how this should be done …
60. There are three possible ways of doing this. They range from full scale legal representation of the child, through the report of an independent CAFCASS officer or other professional, to a face to face interview with the judge … In [other cases], and especially where the child has asked to see the judge, it may also be necessary for the judge to hear the child. Only in a few cases will full scale legal representation be necessary. But whenever it seems likely that the child’s views and interests may not be properly presented to the court, and in particular where there are legal arguments which the adult parties are not putting forward, then the child should be separately represented.
How far have the family courts come since 2006? Nowhere, if the rules are a judge of law reform since then.
Author’s note: This article was written the day after the death of Sir Henry Brooke, vice-chair of the Bach Commission. It is dedicated to Sir Henry, a great lawyer and supporter of legal aid and of the rights of the individual.