Full judgment and ICLR Report. It concerned care proceedings in which a 15 year old child (M) wished to attend court to give evidence in support of his case to return to the care of his Mother. M felt that the strength of his feelings were not fully understood and he wanted an opportunity to talk to the judge about his views. The judge (Her Honour Judge Parry) declined and M (and his younger brother A) were placed into care.
At para 22, Sir Alan Ward delivering the Court of Appeal's judgment, asked: "If an important decision was to be taken on the way you
had to live your life, would you regard it as a rank injustice if you
could not put your views before the person who has to take that
decision? Of course you would. Would it make any difference if you
were a child of sufficient maturity and understanding? I expect you
would answer, "Such a child should have the same right to be heard".
Would you feel the same
sense of injustice if your views were adequately
placed before the decision-maker but you are not allowed to give
evidence on oath, be examined and cross-examined as necessary? I
imagine you would say, "It all depends on the particular circumstances".
That, in essence, is what Judge Parry said. The question for us is
whether that instinctive answer is justified on the present state of the
At para 36 - " ... it should now be declared that the child does have .... a right to be heard
in the proceedings. It is apparent .... that the right to
be heard does not specify how the child is to be heard .... " and, later - ".... whilst the child must be
listened to, there is nothing ... which entitles the child
to give evidence to the judge. .... a child has no right to
In this case, the care judge and the Court of Appeal considered that there was ample information as to M's wishes and feelings.
At para 42 Sir Alan Ward said - "Article 6 requires a fair and public
hearing. Judges must, in my judgment, be very cautious when they see
children in the absence of the other parties. I would encourage them to
do so to explain the judgment that the judge is about to give or has
just or recently given in order to reassure the child that his wishes
have been given proper weight and respect by the court. If the judge
cannot accede to the child's wishes the judge can take that useful
opportunity to explain why. But that meeting should not be used to take
evidence from the child because if that evidence is given in the
absence of the other parties, they could legitimately claim that their
right to a fair trial had been invaded because a part of it was not
undertaken in public. Circumstances will vary infinitely and there can
be no hard and fast rules but judges must be alive to the possibility
that the adults who have been excluded from the meeting may feel that
injustice has been done to them. As in all these cases, sensitivity is a
vital attribute for the family judge."
Was there a rebuttable presumption that the mature child's wishes should prevail? NO was the Court of Appeal's answer. The welfare checklist - Children Act 1989 section 1(3) - sets out a range of factors to be taken into
account, only one of which is the wishes and feelings of the child
having regard to his age and understanding. The weight to be given to
that factor will vary from case to case. It may be a very weighty
factor, it may even be the determinative factor in a particular case but
s. 1(3) simply cannot be construed so as to read into it some hierarchy
of weight or presumptions of precedence over other factors. Each case
is fact sensitive.
This was a case where care orders were inevitable. Sir Alan Ward said - An appeal against the care order is utterly hopeless
.... The bleak fact is that this was a
feckless mother who put her own needs before those of her children.
Having found the threshold crossed, the judge was left with no
alternative but to make the care order.
The decision does not rule out children either being permitted to talk with the judge or even give evidence where it is considered appropriate in all the circumstances of a particular case.
Guidelines for judges meeting children who are subject to family proceedings - April 2010 (pdf)
Guidelines in relation to children giving evidence in family proceedings - June 2011 (pdf)
In February, MPs expressed a view that children in care cases should be given the chance to meet judges - (Marilyn Stowe blog). Marilyn Stowe - a specialist family law solicitor - wrote:
I do like the group’s recommendation that judges should – as a
matter of routine – ask to meet children involved in family law cases.
and talk to the youngsters about how they see their situation and what
they would like to happen. It’s a nice image and could only do good. But will it happen? I’m
afraid I doubt it. With many courts already struggling with ballooning
case loads and even the ‘aspirational’ 26 week timetable for family law cases proposed by Mr Justice Ryder, few will welcome further demands on their time, however much good such demands might do.
An important point is made at para 35 of the Court of Appeal's judgment.
The U.N. Convention on the Rights
of the Child has not been made a part of English law but the duty of the
court is nonetheless to have regard to it when considering matters relating to
it. The position may now be different in Wales because the United
Nations Convention on the Rights of the Child has become part of Welsh
legislation by reason of the Rights of Children and Young Persons
Measure (Wales) 2011 which came into force in May 2012. The Measure
will shape all future policy decisions taken by Welsh ministers.
See earlier post on Rights of Children 20th December 2011