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Should children be seen as well as heard?

Baroness Hale’s speech to the Association of Lawyers for Children Annual Conference 2015

It is a recurring topic in family law: should children involved in cases which affect their future be given the opportunity to directly take part in the proceedings? Since the Children Act 1989 it has, of course, been the case that, when considering whether to make a child arrangements order (amongst other types of orders), the court should have regard to the ascertainable wishes and feelings of the child concerned, considered in the light of the child’s age and understanding. However, that provision does not include a requirement to allow the child to take part directly in the proceedings: the child’s views will usually be ascertained independently by a court welfare officer, who will then report them back to the court.

Whether this ‘default position’ regarding the child’s voice should change was the subject of Baroness Hale’s speech Are we nearly there yet?, which she gave to the Association of Lawyers for Children Annual Conference 2015 in Manchester on 20 November.

This was not, in fact, the first time that Lady Hale had spoken to the association on the subject of the child’s voice. She also did so twelve years ago. Then, she gave four reasons why children’s voices should be heard in cases affecting their futures:

  1. Firstly, children want to communicate.
  2. Secondly, children have a right to know what is going on around them and to understand important matters about themselves.
  3. Thirdly, children need protection from present or likely harm, so they need to be able to tell people about this, and people need to be able to pick up on the signs and ask them about it.
  4. Lastly, children need protection from the harm which may come to them in future if they are kept in ignorance of or are unable to talk about important matters in their lives.

In the light of these (particularly points 2 and 3) Lady Hale said, the courts cannot just think of children as the object of the proceedings – they have to think of children both as witnesses to the facts and as participants in the decision-making process about their own futures.

Lady Hale then looked at the attitude towards children participating in the proceedings, in either capacity. She observed that we do not like having the child in court, despite the fact that this does happen in other countries, including our neighbours Scotland. One of the reasons for this, she said, was that our rules of evidence and the adversarial mode of trial demand that if we see the child in private, we cannot give them a guarantee of confidentiality. However, she said that these problems apply just as much to professionals’ seeing the child in private as they do to the court doing so – the professionals cannot give the child a guarantee of confidentiality any more than the court can.

Lady Hale’s next point was that another problem with judges seeing children is that some judges may simply not be suited to direct communication with children. For example, they may not see how terrifying the process can be for children. This was seen as another reason why children should not participate in the proceedings.

However, said Lady Hale, in recent times this reluctance began to be questioned. One of those who questioned it was Lady Hale herself in her earlier speech. Then, she had argued that there were at least five advantages in judges seeing children: the judge will then see the child as a real person, rather than as the object of other people’s disputes; the court may learn more about the child’s wishes and feelings than is possible at second or third hand; the child will feel respected, valued and involved; it presents an opportunity to help the child understand the rules; and parents too may be reassured that the court has been actively involved rather than simply rubber-stamping the professionals’ opinions.

Lady Hale then spent the rest of her speech looking at how things have changed in practice as a result of this new attitude. She mentioned in particular the 2010 Guidelines for Judges Meeting Children who are subject to family proceedings and the 2011 Guidelines in relation to Children giving Evidence in Family Proceedings, both issued by the Family Justice Council.

However, neither of these was particularly radical, unlike the Final Report of the Vulnerable Witnesses and Children Working Group, chaired by Mr Justice Hayden and Ms Justice Russell, which was published in February this year. Simply meeting the judge, it said, ‘will not provide the increased role that should be played by young people and children now the family courts have entered the 21st century’. ‘It is their wish to be included and listened to and to know that that was part of what happened in their case.’ ‘To hear a child must mean to hear his or her evidence and if the child/young person is not going to give oral evidence there must be provision for their evidence to be heard as directly as possible without interpretation by court appointed officers or others.’

The Working Group recommended new Rules and Practice Directions to ‘give prominence and emphasis to the treatment of children and parties in family proceedings; to emphasise the importance of the role of the child and the need to identify the necessary support/special measures for vulnerable witnesses and/or parties from the outset of any proceedings or at the earliest opportunity’. The Group said that there should be added (to Rule 1.2) an obligation to make provision for vulnerable parties and witnesses and children to assist them in improving the quality of their evidence and to participate fully in the proceedings.

Bringing matters up to date, Lady Hale mentioned that the Family Procedure Rules Committee had now consulted on a new draft Part 3A to the rules, dealing with the participation in proceedings of children and vulnerable persons. It does not include any addition to Rule 1 but the draft Part 3A does require the court to consider whether a child party, or subject or affected, should participate in the proceedings, considering any views the child has expressed about taking part. If the court decides the child should take part it must consider how and whether to make directions about how they should do so.

In conclusion, Lady Hale was glad to see that the subject of the child’s participation in proceedings is now firmly on the agenda, but she was “less than clear about exactly where we are heading and whether it is in the right direction.”

Her full speech can be read (in PDF form) here.

The blog team at Stowe is a group of writers based across our family law offices who share their advice on the wellbeing and emotional aspects of divorce or separation from personal experience. As well as pieces from our family law solicitors, guest contributors also regularly contribute to share their knowledge.

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