Friday, 22 March 2013

Child care proceedings ~ hearing the views of the child

P-S (Children)(Care Proceedings: Evidence) [2013] EWCA Civ 223 is an interesting case - 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 law."

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 give evidence."

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.

Wales:  

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

13 comments:

  1. Thanks for this great post - I really look forward to reading the judgment (the link is down at present). This is an issue close to my heart - personally and as a researcher. As a child a judge once made a decision which had a massive impact on my childhood - which still has an impact on family relationships to this day - and yet I never met him. I spoke to a court welfare officer, whose report didn't convey my feelings especially accurately, and I can remember feeling very upset about this.

    Perhaps the judgment mentioned it, but children's rights to participate in family court proceedings are very different under the Children (Scotland) Act 1995 - where a court must 'give him an opportunity to indicate whether he wishes to express his views', 'if he does so wish, give him an opportunity to express them' and 'have regard to such views as he may express' (see s11). There are various means that might be employed to achieve this - -such as the judge meeting the child, or a written letter. Children also have legal capacity to instruct a solicitor in their own right for Children Act proceedings if they have sufficient understanding. There is a great research paper on how this is working out which might be of interest (Tisdall, E. K. M., Bray, R., Marshall, K. & Cleland, A. 2004. Children's Participation in Family Law Proceedings: A Step Too Far or a Step Too Small? Journal of Social Welfare and Family Law, 26, 17-33).

    There are also some interesting analogies with the Court of Protection, where judges do not routinely meet 'P'. In some cases they do, but it's pretty rare (see the case CC v KK (2012) for a fascinating example of when this did occur). The COP Rules do provide for P to hear P, but 'The court may proceed with a hearing in the absence of P if it considers that it would be appropriate to do so' (Rule 88). There appears to be no presumption that the court will hear P, or meet P, and consequently justification for *not* meeting P has not been considered anywhere.

    Interestingly, developments in the ECtHR may mean that we have to revisit practices around judges meeting P in relation to legal capacity. In Shtukaturov v Russia, X and Y v Croatia and (this year) Lashin v Russia, the court has been developing a 'rule of personal presence', which is expressed in X & Y v Croatia as 'The Court considers that judges adopting decisions with serious consequences for a person’s private life, such as those entailed by divesting someone of legal capacity, should in principle also have personal contact with those persons' (paragraph 84). This is for guardianship proceedings, and the closest analogy we have for that in E&W is deputyship - where not only does the judge not meet P, but it might not even be a judge who approves the order! And they typically do so 'on the papers'. This principle may well be read across to court welfare orders as well.

    I can see why the courts are worried about the resource strain of judges routinely meeting P/Children. Yet it seems such a grave injustice for a judge to refuse to do so - and really, what is the point of such courts if they cannot do justice, however efficient they are?

    Anyway, enough ramblings - thanks very much for posting on this case.

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  2. @Lucy Series - thank you for your detailed comment - much appreciated. There is no mention of Scottish practice in the P-S (Children) judgment. The following are links to some of the material to which you refer.

    Children (Scotland) Act 1995 section 16

    Material by Tisdall

    CC v KK 2012

    Lashin v Russia

    The Scottish Children's Hearing system has much to commend it and England / Wales could learn a great deal from it.



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  3. This is an interesting judgment but it is quite complex and the summary quoted here has over simplified the case. The impression is given that the judge did not meet or communicate directly with the young person, whereas it is clear in the CA judgment that she had. The Children's Rights Measure was indeed cited but this Measure (Welsh Government equivalent of an Act) does not apply to decisions made in courts in Wales as the justice system is not devolved. The Measure applies to Welsh Ministers so may in future affect policy in Cafcass Cymru whch is part of the Welsh Government but the judiciary are not.

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    Replies
    1. Julie - thank you.

      The Welsh Measure does indeed impose a duty upon the Welsh Ministers and the First Minister to have due regard to the rights and obligations in the United Nations Convention on the Rights of the Child (UNCRC) and its Optional Protocols, when making decisions of a strategic nature about how to exercise functions which are exercisable by them.

      My aim, when writing the post, was to highlight the point of law relating to the position of the child who, although a party to the proceedings, did not have the right to give evidence or be seen by the judge provided always that the child's views were somehow heard.

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    2. HHJ Parry did meet with M (along with his solicitor and guardian) but only to explain things - see full judgment at paragraph 6.

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  11. My aim, when writing the post, was to highlight the point of law relating to the position of the child who, although a party to the proceedings, did not have the right to give evidence or be seen by the judge provided always that the child's views were somehow heard.

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