Enhancing the Participation of Children in Family Proceedings

By Nicholas Crichton, District Judge, sitting at the Inner London Family Proceedings Court
(Article courtesy of http://www.barristermagazine.com)

Would you want important decisions to be taken in your life without being consulted? Even if somebody talked to you beforehand and undertook to report your wishes and feelings to the person charged with the responsibility for making the decision, might you want to meet that person to make sure that they truly understand how you are feeling? Children have views about what they want to happen in their lives why should we not give them the opportunity to make a connection with the person who will be making important decisions for them?

Put simply, Article 12 of the United Nations Convention on the Rights of the Child states that a child has a right to have an opinion, to have that opinion listened to, and to have it taken seriously; and specifically to be provided the opportunity to be heard in any judicial proceedings affecting him, directly or through a representative.

The issue of whether or not children should have the opportunity to play a greater part in proceedings where decisions will be made which will affect the rest of their lives is becoming the subject of increasing debate. In their research published in Your Shout and Your Shout Too the NSPCC established that a significant number of children involved in public law proceedings would like to have had an opportunity to go to court; and that of those who did in fact go to court an even greater number felt that they received insufficient support and were not listened to; and that a larger number of children involved in private law proceedings would have liked an opportunity to go to court and speak to the judge. One of the most concerning findings was that some children had not felt listened to properly by Cafcass.

In Mabon v Mabon [2005] 2 FLR 1011 Lord Justice Thorpe and Lord Justice Wall reviewed and referred to the benefit of the tandem model of representation of children in the English courts. Lord Justice Thorpe went on to say that

it was simply unthinkable to exclude young men aged [17, 15 and 13] from knowledge of and participation in legal proceedings that affected them so fundamentally.

Lord Justice Wall referred to the reluctance of the English Judge to talk to children in private and said that

from the boys perspective it was simply impossible for the guardian to advance their views or represent them in the proceedings. He would, no doubt, faithfully report to the judge what the boys were saying, but the case he would be advancing to the judge on their behalf would be (or was likely to be) directly opposed to what the boys were actually saying.

In Re W (Leave to Remove) [2008] 2 FLR 1170 Lord Justice Thorpe spoke of the participation of children as being a matter of particular topical concern. The three judges of the Court of Appeal in that case had differing views about whether the children in that case should have met with the judge who decided their case, and at what point.

In his address to the UK Association of Women Judges at their Annual Conference in March 2006 the President said -

The question of the involvement of children in decision making and the representation of their rights and interests in both public and private law proceedings enjoys a higher policy and public profile that at almost any other time in our recent history.

He went on to say

… it is my view that, in an effort to ensure the welfare and happiness of children, and to listen to their voice first hand, we should be encouraging judges to talk in private to children who wish to do so, trusting the judge to retail the burden of his concerns or any changed perception having heard the child, whilst respecting the confidence of the child in sensitive areas.

In the May 2008 edition of Family Law the Voice of the Child Sub-Group of the Family Justice Council published a paper Enhancing the Participation of Children and Young People in Family Proceedings - Starting the Debate. In fact, the debate was started at an event held at Inner Temple Hall on 20th October. Approximately 150 attended. The event was chaired by the President, Sir Mark Potter. There were presentations from two young people, one who had experienced public law proceedings and one who had experienced private law proceedings. Mr Justice Hedley and Anthony Douglas (Chief Executive of Cafcass) spoke for greater involvement of young people. Anthony Hayden QC and Alistair Paddle, (former chair of NAGLRO) argued for a more cautious approach. A distinguished panel which included Mr Justice McFarlane and Lucy Theis QC, Chair of the FLBA, then took questions from the floor. Highlights of the debate can be heard on a pod cast which can be found on the FJC website at www.family-justice-council.org.uk. An edited typescript of the debate is also available on the Councils website. The FJC has received some extremely helpful responses from various quarters. It is hoped to publish a summary of those responses in early in 2009.

The Voice of the Child Sub-Group does not suggest that all children should attend court. Nor do they suggest that those who do attend court should be giving evidence, except in very rare cases. Their wishes and feelings are properly established by trained and skilled professionals away from the court and presented to the court in written form. However, as the NSPCC research demonstrates, there are a significant number of children who feel excluded from the decision-making process and who would like to have a greater connection with that process. In order to establish that connection they need to be provided with age-appropriate information to enable them to understand the process and the role which they might play. They need to have it explained that whilst their wishes and feelings are important, they are not necessarily determinative. When I see children in my court I make it clear that we cannot have secrets from their parents and the other parties in court; and that judges have rules they are required to take a number of different things into account, just one of which is their wishes and feelings. It is my experience that children have little difficulty in understanding such basic rules.

Of course there are challenges

• we have constantly to balance the Human Rights issues against welfare issues;
• there is a significant difference in assessing the needs and assessing the wishes and feelings of children in private law compared with public law;
• if a child expresses an interest in seeing the judge, there needs to be discussion as to how this need may be met the Enhancement paper already referred to raises various possibilities.

It is my personal belief that Cafcass officers should routinely discuss with children and young people of an appropriate age and understanding whether or not they would wish to meet with the judge, at the same time explaining that not all judges will be willing to see them. In my view, and in the view of the Sub-Group, judges should not be reluctant to meet them. Many judges like to have a photograph of the child in order to give a face to the person for whom they are making a decision better still, surely, to meet in person? It needs to be stressed that the object of the child meeting the judge is not to assist the judge but rather to assist the child. There are many ways in which this can be achieved. It is rarely appropriate for the judge to see the child in the presence of parents or other parties. He can see the child in his chambers or in the courtroom. He should do so in the presence of another professional such as the Cafcass Officer, the childs solicitor, the court associate or legal adviser. It is my practice to agree a note of what was said which can then be shared with the other parties.

Some will find it easier than others to talk to children. Guidance and training needs to be introduced to assist judges in communicating appropriately with children, which would be of benefit to all. The members of the sub-group would like to think that ten or fifteen years from now judges will be routinely seeing those children who wish to see them. Of course, some children may prefer the decision to be made without meeting the judge. What is important is that the alternatives are discussed with the child and that he should be given the choice. This means providing the child with the information to enable him to understand the whole process and then discussing it with him in order to establish how best to meet his individual needs. Involvement is empowering, even if it results in the child declining to take part. Empowerment increases confidence and self-esteem. Refusal to meet a child who wants to meet the judge lowers confidence and self-esteem.

I started this article by posing some questions. I conclude by posing another should judges be making these sorts of decisions if they are unwilling to meet the people they most affect and sometimes, in appropriate circumstances, to explain their decisions to them?

Note: in this article children should be taken to include young people; and judges should be taken to include magistrates sitting in the family proceedings court.

Nicholas Crichton is a District Judge, sitting at the Inner London Family Proceedings Court, a member of the Family Justice Council and the Chair of the Councils Voice of the Child Sub-Group.