Section 1 of the Children Act 1989 states that when a court determines any question with respect to the upbringing of a child the child’s welfare shall be the court’s paramount consideration.
There are seven statutory factors that the Court is directed to have regard in any Children Act proceedings, one of which is the wishes and feelings of the child. However, as Sir James Munby noted in a lecture on Human Rights of Children and Young People in June 2015, “the child is, by and large, completely invisible in court.” This is despite children often being at the centre of proceedings with their views and how they feel often not heard and vital decisions concerning their future left to the Court and third parties to decide upon.
In August 2014 the Rt. Hon Simon Hughes MP, established the Voice of the Child Dispute Resolution Advisory Group to ensure that necessary steps are taken to promote child inclusive practice in and out of court dispute resolution processes and that the voices of children and young people are heard in all private family law proceedings.
Careful consideration has been given by a Working Group set up by Sir James Munby and chaired by two of the Family Division judges, Hayden J and Russell J as to what changes to the Family Procedure Rules would need to be put in place to make the court system more child inclusive and appropriately child centred to ensure that the child’s wishes are heard.
In his lecture, Sir James Munby highlighted the need to ensure the practices of the English Family Courts abide by the obligations under Article 12 of the United Nations Convention of the Rights of the Child. In accordance with Article 12 of the Convention, State Parties should ensure that a ‘child who is capable of forming his or her own views (is given) the right to express those views freely in all matters affecting the child’, and that the child shall be ‘provided with the opportunity to be heard’ in any proceedings affecting them.
Sir James Munby suggests that this can be achieved by introducing special measures to enable children to attend court (physical participation) and to allow children to communicate their feelings and wishes to the court (intellectual participation).
To facilitate physical participation would involve allowing the child to visit the court room and/or to sit in and watch all or part of the proceedings and possibly to meet the judge, should they wish to do so. In order to facilitate intellectual participation consideration must be given to what the child wishes to communicate to the court and the best way to do this. In addition, to ensure that the child is informed as to the outcome of a case. Sir James Munby expects that the number of cases where a child will give evidence is likely to increase.
A great deal of change will be needed to practically implement any reforms. The layout of court rooms will need to be altered to ensure the child can sit in a suitable place so they can properly participate in proceedings instead of feeling like a mere spectator. Sir James Munby states that all family judges must be equipped with appropriate training. In addition, all those involved in the family justice system will similarly need training and support not least to enable them to directly communicate with children about sensitive matters. There will need to be more effective management of court time to accommodate those cases where children are present in court.
There have been pilot projects carried out in Leeds and York[1] seeking to make meetings between children and judges or magistrates more routine. Results from the project found that:
- a high proportion of children were deemed unsuitable for a meeting with the judiciary (due to age and other factors)
- of those deemed suitable quite a high proportion did not want to see the judge
- there was only limited feedback from the children themselves but most seemed to find it positive
- judges would welcome more guidance as to what the purpose of the meeting is.
The purpose of the proposed reforms is to allow for a more child inclusive system in family law proceedings. However, it is of crucial importance that consideration is given to what a child may want from the court process and ensure the reforms reflect this accordingly. We shall eagerly await publication of the proposed Practice Directions and Guidance.
Sir James Munby and the Government’s continued support for the principle of child inclusive practice will bring a key development in the way cases involving children are dealt with. It will give children a chance to explain their feelings personally to judges particularly when life changing decisions about that child’s future are to be made. However, we must all remain ever mindful and respectful of the challenges these reforms will involve.
Tania Derrett-Smith, Associate, Weightmans LLP, www.weightmans.com, 0121 632 6100.
[1] ‘Listening to Children: are we nearly there yet?’ Lady Hale, Address to the Association of Lawyers for Children Annual Conference 2015, Manchester.
(Source: Weightmans LLP)
