I’m not a great fan of live-tweeting from legal events, but a tweet on Monday from the Nagalro October 2017 Conference struck a chord with me.
For those who don’t know, Nagalro is, as its website tells us, “a professional association for social work practitioners who work in the children and families field and represent children in public and private court proceedings.” The theme of the conference, which was chaired by no less than the President of the Family Division Sir James Munby, was ‘But What about the Children?: Hearing the voice of children and young people in court proceedings’. This was explained in a little more detail in the conference information:
“Court proceedings involving the future of children are coming under increased strain as the numbers of applications increase and the requirements of the PLO [the Public Law Outline, which sets out the timetable within which public law (i.e. child care) cases should be dealt with] put pressure on timescales. There is a danger that the voice of the child becomes increasingly marginalized in the process. It is imperative that child welfare professionals remain vigilant in ensuring that children’s views are ascertained and included in reaching decisions that can affect the rest of the child’s life.”
The tweet that caught my eye was written by one of the good people at The Transparency Project, and referred to something the President said in the course of the proceedings. It read:
President: always struck me as curious that children are invisible in the family justice system. How often does judge even see a photo?
— transparency project (@seethrujustice) October 9, 2017
I suspect that I am far from unique amongst family lawyers, but this was precisely the thought that often occurred to me during the years that I was practising. How could judges make life-changing decisions for children without even knowing what they look like?
We all know about the requirement in the welfare checklist for courts, when considering whether to make, vary or discharge an order relating to a child, to have particular regard to the ascertainable wishes and feelings of the child concerned (amongst other matters). The courts certainly do comply with the requirement, but I suspect many non-lawyers would be surprised to learn that judges usually don’t even know what the children they are dealing with look like. They very rarely speak to the children themselves and, as the tweet suggested, hardly ever even see a photograph of them.
There are, of course, reasons why the family justice system marginalises children in this way.
For a start, the child’s wishes and feelings should of course be considered in the light of their age and understanding. This has the obvious consequence that the views of younger children are not given much weight, and are possibly not considered at all. The children are of course seen by welfare officers, who report back to the court, but in practice that often means that the views of each child merits only a couple of lines in a welfare report (no disrespect intended to busy welfare officers).
The primary reason for the marginalisation of children, however, is that bringing them into the process is fraught with difficulties. It is not hard, for example, to see the potential problems involved in judges routinely interviewing children. They may be coached by one of the parents, they may have a limited understanding of what is happening to them and, above all, they may find the experience traumatic. There is also the issue of judges needing proper training, not to mention the simple problem of judges finding the time to speak to children.
Despite these difficulties, however, there are growing calls for children to be brought more closely into the process, as the topic of the conference suggests. I’m not going to come up with any answers myself, as the whole issue is wrought with complications that I could not possibly discuss here, even if I was qualified to do so. In any event, I find myself in the illogical position of agreeing with the situation as it stands, whilst simultaneously feeling a subconscious unease that judges know so little about most of the children that their decisions are so profoundly affecting.
Photo by Roger Meyer via Flickr