Child law

        In addition, the current position on children bringing their own actions to court in the absence of the Guardian in their own right, and through the solicitor themselves demonstrates the access of children to the court in family proceedings. In Mabon v Mabon and Others (2005), the child asked the court for the Guardian, an officer of CAFCASS, to be removed so that he could give instructions to the solicitor on his own behalf. The court granted leave and removed the Guardian as it considered that the child concerned had sufficient understanding to participate in the proceedings without the guardian, followed the rules applied to family proceedings under the Children Act 1989. Countering this, in the case of Re W (Contact: Joining Child as Party) [2001] EWCA Civ 1830, [2003] 1 FLR 681, the district judge ordered that the child, a 7-year-old boy, who had expressed concern about staying in contact with his father), be joined as party to the contact proceedings, and that a solicitor be appointed to represent him and an independent social worker be instructed to report. The social worker agreed to the boy’s increasing reluctance to see his father and, on the social worker’s advice, this district judge made an order for no contact. The father appealed, and the Court of Appeal allowed his appeal, to the extent of allowing CAFCASS High Court team to be invited to act on the child’s behalf, and held that the child had a right to a relationship with his father, even if he did not want it, and that his welfare demanded that efforts be made to make contact possible.

In the case of Re N (Contact: Minor Seeking Leave to Defend and Removal of Guardian) Coleridge J held than an 11-year-old boy who wished to defend the contact proceedings did not have sufficient understanding to participate and give instructions on his own behalf without a guardian. Again, this has evidently portrayed how maturity, rather than age, has a substantial impact on ensuring how adequate the child can be represented. This has its drawbacks as when the information from the child is transmitted through the guardian, to the court, it can filter out imperative authenticity of the child’s implications.

        In considering whether to grant leave, the court will consider various factors including whether or not he matter is serious enough to justify a court hearing. In Re C (A Minor)(Leave to Seek in Section 8 Order) a 14-year-old wanted to go on holiday with her friend’s family to Bulgaria. Her parents opposed to this and she applied for a specific issue order that she be permitted to go on the holiday. Johnson J refused to grant leave, claiming that the issue was too trivial an issue to be suitable for resolution by the courts. If this issue is too trivial, it is likely that many other issues which children have tried to raise before court would also be too trivial, for example, the time which they go to bed. However, it is also important to consider, that issues that may appear too trivial to trivial to an adult may appear to be hugely important from a child’s perspective. As Freeman has forcefully argued that, ‘where a child has instituted proceedings, this is an indication that, to the child, this is an important issue and that therefore there is a need for some kind of intervention for the child’s benefit.’

        Another factor in which the court has to consider whether to grant leave is the maturity of the child. In Re S (A Minor) (Independent Representation) it was stressed that the real issue was not the child’s age but her understanding. The fact that the 9-year-old had applied to the court indicated maturity and was granted leave for a contact order with her half-brother. In Re O (Care Proceedings: Evidence), a teenage boy had given leave to be separately represented, having by the court as having sufficient understanding to participate as a party in the proceeding. However, the boy’s views were not considered in the proceedings as the court exercised its discretion and refused to hear oral evidence from the boy, fearing the potentially harmful impact of court attendance on a child. They had to balance the rights of children to participate and be heard against their need to be protected from exposure to material that might be damaging. The Children’s Guardian will continue with their duty to safeguard the interests of the child and provision is made under the Family Proceedings Rules 1991 for the Children’s Guardian to be separately represented. 

        The access to the child in court is additionally conducted when the court wishes to examine the basis of the child’s views. In Re S (Change of Surname) the views of a Gillick-competent child over a surname dispute was given full priority. However, in most cases, the child’s views will still be important, but is not the sole consideration in family proceedings. In Re B (Change of Surname), Wilson J ordered that three children, (two teenagers) keep their fathers surname, despite their opposition, in order to maintain the link with their father.  The outcome of this case contradicts Article 8 of the United Nations convention on the Right’s of the Child, which states that Governments must protect the child’s right to a name.

Likewise, a similar case whereby the views of the child were considered but overridden is in the case of Re M (Child’s Upbringing). The Court of Appeal had to consider what should happen to a 10-year-old Zulu boy who had been handed over by his parents to a white couple and raised in England for four years. The child had settled into life in England and expressed a strong wish to stay with the white couple. There was expert evidence that his immediate return to South Africa would cause psychological harm. However, his parents successfully applied for his return and Neill LJ in the court of appeal stated “in the child’s best interest, he should be brought up with his natural parents.” The Court of Appeal therefore ordered his immediate return to the natural parents. The boy was forcefully returned to South Africa, however failed to settle there and his family later consented to him being returned to the couple in England. This evidently shows how the child’s best interests were clearly not the crucial priority on the outcome of the case as stated in article 12 of the United Nations convention on the Right’s of the Child which articulates that every child has the right to express his or her own views and these views must be taken seriously in proceedings.

Contrary to this, the views of the child in the case of Re P (A Minor) (Education: Child’s Wishes) were taken in full precedence. The Court of Appeal listened to and paid respect to the view’s of a 14-year-old boy with regards to his choice of school. Butler Sloss LJ indicated that had the boy been 11, his views would not have carried so much weight. This shows that clearly, the age of the child is likely to be crucial factor in determining how much weight should be given to the child’s wishes.

Two general principles in section 1 of the Children Act, non-intervention (s1.5) and the disapproval of delay (s1.2) can also be viewed in terms of listening to a child’s voice. The non-intervention principle ensures that no order is made unless it is shown to be the best for the child and tends to prioritise adults’ views. Thus, there is a certain amount of tension between the two in that the court may fail to consider the child’s wishes to listen to their voice. If for example, in care proceedings, an agreement is prolonging, then the ‘delay is harmful’ principle recognises that a child’s sense of time is more acute than that of an adult.

A final example of attention being paid to the views of children considered in proceedings is s.22 of the act which requires a local authority to ascertain the wishes and feelings of a child being looked after and to give due consideration to them, depending on his age and understanding, before taking a decision which affects them. In addition, the child’s religion, origin, cultural and linguistic background must also be considered. Local authorities must give the child information and explanations so that the child can make an informed choice. The child must know their rights and what is available and feel that what they are saying is not being ignored, (Re P (A Minor) (Education: Child’s Wishes)). Each local authority has to establish a procedure for considering complaints and representations which must be publicised and should be ‘user friendly,’ as quoted from s.26.  Under this provision, a child has the right to complain. According to James et al (2003), children’s voices are not being heard sufficiently in private and public family law proceedings, but in the findings of The Victoria Climbié Inquiry, Cm.5730 (2003), it has resulted in the position to allow children and young people to be heard properly. 

Finally, on an optimistic account, the position to improve to allow the child to be heard properly is furthermore supported by the proposals in the Children’s Bill 2004, which deals with, among other matters, the introduction of a Children’s Commissioner, (who will carry out investigations at the level of a government minister) and a duty of co-operation among agencies working with children. With this scheme, evidence has provided that the commitment to children will go beyond merely listening to them and giving them a voice, but children will be invited to sit on the selection panel for the appointment of the Children’s Commissioner. Subsequent to this process, the child’s voice will be considered with more magnitude.

Our current system in ensuring that children are represented adequately in family proceedings depends on whether the case arises in public law or private law. In public law cases, for those such as care and supervision orders, a child has an automatic right to representation and a children’s guardian (an officer of CAFCASS) and solicitor would work in progression with the child. On the other hand, in private law proceedings, for example residence and contact orders, the child has no ‘automatic’ right to representation. However, it is more likely the child has a greater participation with the proceedings in a case raised within private law.

As a general rule, a child cannot bring proceedings themselves, only those through the children’s guardian. However, it is possible for the child to conduct the litigation themselves, in the absence of the children’s guardian, provided they are mature and competent enough to do so. A child can apply for a s.8 order, under the Children Act, provided the court has granted leave to the child, and that they have sufficient understanding to make the application. Although the test of sufficient understanding is that of the Gillick Competence, only older teenagers are likely to be held to have the required sufficiency of understanding, Re T (A Minor) (Child Representation) [1994] Fam 49. Rule 9.5 of the Family Proceedings rules 1991, permits a child to be joined as a party to private law proceedings in the court, and for the court to appoint a guardian for the child. The President’s Direction (Representation of Children in Family Proceedings Pursuant to Family Proceedings Rules1991, Rule 9.5) [2004] 1 FLR 1188, states that making a child party to proceedings is a step to be taken only in cases which involve a significant degree of difficulty.

For this reason, separate representation may occur, but this is only in the minority of cases. Before making a child a party, careful consideration is taken as to decide whether this approach is better. Judges are able to make an order regarding the separate representation of a child in cases where there is an intractable dispute over residence or contact. This can also happen in cases, where the child’s views cannot be adequately met by a report to the court, the child has interests incapable of being represented by any of the adult parties or when there are complex medical or mental health issues which constraint to separate representation of the child. However, with this alternative, there is the danger that separate representation may cause significant delay. In Re A (Contact: Separate representation) [2001] 1 FLR 715, the Court of Appeal held that there was no objection to a service such as the National Youth Advocacy Service (NYAS) representing a child in private proceedings, because they prolonged the judgement.

The representation of children’s interests is less effective than those of public law cases where an officer of CAFCASS ensures that the child’s interests are properly represented. In a private case, it is possible that the case proceed without the court ever hearing the child’s views. Many commentators have expressed concern that all too often this is what happens and that the children’s wishes and interests are not specifically addressed in a court proceeding. There has also been increasing concern in recent years about children’s lack of participation in private law proceedings and whether they are represented adequately, and discussion about whether there should be greater willingness to allow children to be joined as parties, and to be separately represented so that their views can he heard. Timms ([2004] Fam Law 855) says that ‘separate representation of children can be a valuable and often underestimated facilitator in resolving parental disputes, and can divert children and families away from bitter and expensive court proceedings.’ Fortin has arguably complained that ‘The most serious procedural weakness undermining the Children Act’s direction to the courts to consider the child’s wishes and feelings is that there is no guarantee that the court will receive any evidence indicating what those wishes are.’ The lack of a right to be involved in court proceedings, and to have separate representation, may breach the child’s rights under the European Convention on Human Rights in regard to art.6- right to a fair trail, art.8- right to family life, art.10- right to freedom of expression, and art.12- right to an effective remedy. In Re A (Contact: Separate Representation) [2002] Butler-Sloss P recognised that there were cases where children needed to be separately represented and cases where her Ladyship suspected that the voices of children had not always been sufficiently heard. She has said that the courts’ attitude to separate representation needed to change as a result of arts 6 and 8 of the ECHR.

The lack of separate representation may also breach art.12 of the UNCRC. The UN committee on the Rights of the Child in its report in October 2002 expressed concern about the lack of implementation of art.12 in respect of the failure of the domestic courts to allow the child to be represented in private law proceedings. A research report (Constructing Children’s Welfare: A Comparative study of Professional Practice, ESRC, 2003) found that children’s voices are not being heard in both private and public law family proceedings in the way intended by the Children Act or in line with the UNCRC. Piper (1999) claims that there is a ‘real danger that children’s interests cannot be promoted if we artificially limit our gaze by out presumptions about them’. 

Although there appears to be a greater willingness for children to participate in private family law proceedings, there is no presumption or expectation that children will be separately represented. However, the matter is not straightforward as it may be contrary to the welfare of some children to be allowed to appear in court, particularly where a parental residence or contact dispute, for example is a bitter and distressing one. In the case of Mabon v Mabon and Others, the application for the children to be represented separately was overruled, however, a change of approach arose when they appealed to the Court of Appeal, who then considered the issue of children’s right’s to representation in the context of a difficult and protracted parental dispute about the children’s residence. 

Furthermore, the Human Rights Act (HRA) 1998 has made significant impact to the adequacy in ensuring that children are represented in family proceedings. It states that ‘A child may have a right to be represented and heard in proceedings with which they are involved.’ In Re A (Contact: Separate Representation) accepted that a boy who wished to alert the judge to the damages his father posed to his young half-sister should have leave to do so. Therefore, the HRA is relevant to family proceedings as courts and public authorities have to abide by its provisions.

Although the European Convention on Human Rights does not provide adequately for the rights of children (created amongst adults, rather than children), as there are no articles explicitly dealing with children, it is not to say that children receive no protection under the convention and the HRA. Children are entitled to the same rights under the convention as adults. Article 1 states; ‘The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms in this convention.’ The European Court has accepted that ‘everyone’ in art.1 includes children.

The HRA also has important implications in the procedures used by the local authority before taking a child into care and in the decision-making process once the child has been taken into care. Both art.6, the right to a fair trial (Airev v Ireland) and art.8 have an impact when deciding the extent to which parents of children should be involved in court processes involving their child. In Re M (Care Proceedings: Judicial Review) [2003] it was stated that it is inappropriate to seek to prevent a local authority from bringing substantive proceedings where it will be possible to challenge the authority’s approach in those very proceedings. This is in line with Re L (Care Proceedings: Human Rights claims) [2003] 2 FLR 160, where it was said that complaints about a proposed care plan should normally be raised in the substantive proceedings and not by way of action under ss. 7 or 8 of the HRA 1998. This view was reiterated in Re V (Care Proceedings: Human Rights Claims) [2004] 1 FLR 944. 

Apart from a declaration of incompatibility under s.4 of the HRA 1998, all family courts have the jurisdiction to take, and deal with, human rights arguments, including children. Applications for proceedings to be transferred to the High Court, so that separate human rights issues can be determined by a High Court judge, where to be strongly discouraged and could amount to an abuse of process. The Protocol for Judicial Case Management in Public Law Children Act cases (June2003) [2003] 2 FLR 719 ensures that these issues are not identified at the onset and dealt with in the court’s management of the proceedings. These are few of the examples to show how the HRA 1998 has had an impact on family proceedings involving children.

In conclusion, as a rule, children tend not to take cases themselves but rely on a close adult to do this for them. Although the HRA has made an advantageous difference, difficulties may therefore arise if their case is about their parent or carer. The European Commission has in the past refused to accept cases submitted on behalf of children except where the applicant is a parent with legal custody. One issue for consideration therefore is how children who are victims of human rights violations perpetrated by their parent/carer will manage to take an action under the Human Rights Act.

As for the current position of the access of children to the court in family proceedings, it is not surprising that it is rare for children to successfully bring applications before the court, or to find that research suggests that generally, judges are opposed to children even attending court hearings. It has been argued that the leave requirement illicitly infringes a child’s right to a fair hearing under article 6 of the European Convention, in a way which improperly discriminates on the basis of age, contrary to article 14. In response to that, it could be argued that children need protection from the rigours of the court procedures such as cross-examinations, and this would justify the obligation of the leave of the requirement. The ability of children to represent themselves would mean that a court could hear the child’s views in his or her own words, rather than mediated through the reports of welfare officers. As Dame Margaret Booth has argued that ‘children should not be required to seek leave from the high court before applying for a section 8 order.’ 

In addition to this, serious implications have weighed down CAFCASS, which has lead to divisions within the organisation. This has resulted to the resignation of its chief executive, and long delays in the preparation of reports. Many of these problems can be explained by inadequate funding of the service by the government. If more funding was bequeathed, then the access of the children to the court, their views and even their adequacy of children being represented would extensively be improved. Also, despite the acknowledgement that listening to and appreciating children’s wishes is important, there still seems to be weighty concerns over the way in which reports concerning children are prepared and the length of time taken to prepare them. The difficulty that still remains, as discussed above, is the issue of social workers and Children’s Guardians to determine and report the wishes of children accurately. Children may also feel intimidated and unable to say what they wish. Furthermore, the questions asked by the reporter may not necessarily reflect the way the problem is perceived by the child. The reporter therefore, unintentionally, deprives the child of the ability to express their views in their own terms.

There has been much dispute over whether or not the law should go further and encourage the active participation of children in court, as it could be said that simply having the views of a child in a report is inadequate. However, it still remains a general principle and evidence has proved that children should remain out of the court room as many children find it a traumatic experience to have to appear in court, especially when it resides if the child is having felt to be a making a choice between its parents.

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