Stowe Family Law recently dealt with a complex and interesting case that has served to highlight the evolving place of children in our society, both in terms of their legal status in the eyes of the courts in England and Wales and in terms of the importance, in line with their maturity, of their wishes and feelings.
The case involved a child of 16 who is a British citizen. The child has lived abroad for the last two years, and continues to do so. The courts of a number of countries might have had jurisdiction.
We acted for the child and her relative. The relative had applied for a residence order in her favour and for leave to remove the child from the UK. As the child was already in situ with the relative abroad, the court was being asked to formally approve the change in living arrangements.
The law relating to children is a complex system of rules and requirements, particularly when the children are not living in England and Wales. Even though a child may be English and speak only English they may not fall within the court’s jurisdiction and may instead be subject to a foreign court and law. Before making an order in a case the English court must first consider whether it is within their powers to make an order. The court will look at the habitual residence of the child, their current location and their ties with England and Wales.
When a case does come before the court they must take into consideration various factors to make the decision. First and foremost is the well-being of the child and a key part of that will be the child’s own opinion.
In this particular case, the court was persuaded to accept jurisdiction because the child is a British citizen and was present in the UK when the proceedings were issued. This shows the willingness of the courts in England and Wales to accept responsibility for assisting children with British passports in need in certain situations, even if they no longer live here.
At the First Directions Hearing we took an unusual step. We asked for the child to be granted permission to be present in the courtroom, and asked that the judge take evidence from them. This enabled the child’s wishes to be at the forefront of the court’s mind from the very beginning of the case. It also dispensed with the need for a CAFCASS report, which is usually how the judge would be made aware of what the child wanted. A 16-year-old’s wishes and feelings are an extremely important factor when the judge is making a decision, compared to the wishes and feelings of a much younger child.
In the past, judges have rarely had the experience of speaking directly to the children involved in particular cases. However attitudes are shifting. Sir Mark Potter, who heads the Family Division, supports the notion of children being in the court room to express their wishes, so long as the child is of suitable age and intelligence. Indeed it is not surprising that some children want to speak to the person who is going to decide their future. He encourages judges to be ready to speak to any child involved in a case, particularly if the child requests they do so or if CAFCASS or another party thinks it appropriate.
In this particular case, after hearing evidence from the child, the judge praised our client’s intelligence and maturity. Hearing from the child directly also meant that the court hearing was a lot shorter. The child’s wishes did not have to be heard via a third party.
This case is not meant to demonstrate that CAFCASS does not have a role to play. Indeed its role is extremely important and crucial to many cases, especially when the welfare of younger children and complex issues are involved. However, what this case does show is that a pragmatic and forward thinking approach sometimes works. It also shows that ascertaining the wishes and feelings of a child of a certain age is best done by talking to the child directly. I am pleased to say that in this case the judge took on board the wishes of the child and supported our case that the relative was able to provide a loving stable home environment.
Thus we attended court for a First Directions Hearing, but were successful in persuading the judge to get to the heart of the matter, and to reflect the reality of the situation by making the final Order there and then. The relocation was both in the child’s best interests, and clearly her desire.
It is heartening to see the shift in legal opinion, which has meant that the courts are willing to be flexible and recognise the changing roles in society. This highlights how we are moving from a culture in which children are “seen and not heard”, to an increased recognition of their very real feelings and concerns. We were pleased to have helped this child and relative to create a future. We look forward to the courts’ growing recognition of young people’s rights to be heard, as well as their responsibilities towards British citizens in an increasingly mobile society.
Eleanor Webster graduated with first class honours and won the Resolution prize for the Family Law Elective as a law student. She completed her training contract with a large national law firm in Manchester, and joined Stowe Family Law LLP upon qualifying in September 2009. She specialises in Children Law.