Jake Richards, 9 Gough ChambersThis article argues that the suspension on prison visits during this period and the deficiency of measures to mitigate the impact of this on family life and to protect...
Stephen Sondheim in Children will listen wisely wrote;
'Careful the things you say Children will listen. Careful the things you do; Children will see and learn. Children may not obey, but children will listen. Children will look to you for which way to turn; To learn what to be. Careful before you say "Listen to me" Children will listen.'
Children do not always speak their mind: often they cannot put into words how they feel, however what is often overlooked is the adult’s duty to create an environment where the child feels safe to talk and is able to talk. It is interesting that the court must determine the ‘ascertainable wishes and feelings of the child’. The word ‘ascertainable’ is key and Ryder LJ is more emphatic in Re D (A Child) (International Recognition)  EWCA Civ 12,  2 FLR 347 when he speaks of ‘the right of a child to participate in a process about him or her’ and of Children Act 1989, s 1(3)(a) as ‘a fundamental principle’ of UK law.
The traditional manner in which children have been involved in proceedings is that Cafcass typically discuss wishes and feelings with children and reports to the court. It is of course entirely correct that children’s voices are heard within proceedings and the children feel they are a part of the process and that their wishes and feelings are heard in proceedings between parents, where sadly the best interests of the child can become lost amidst other concerns such as divorce proceedings and financial matters.
In Re D (Abduction: Rights of Custody)  UKHL 51,  1 FLR 961 Lady Hale spoke of the importance of a mature child’s views and of how these could be considered by the courts. In her speech to the Association of Lawyers for Children in November 2015 she explained the variable ways in which judges approach this task. With regard to children giving evidence in court, although McFarlane LJ’s 2016 criticism of the failure of the family court to abide by the principles of the 2010 decision Re W (Children) (Abuse: Oral Evidence) UKSC 12,  1 FLR 1485 had clearly had some impact in that ‘Re W assessments’ were on the increase, it did not seem that this was translating into more children actually giving evidence in court. Unfortunately there appears to be a sad lack of visibility of children within the system, which was ostensibly dedicated to promoting their welfare. There is no set system as to when a child meets with a judge at present, but in certain types of private law disputes, such as relocation and future child arrangements it can be invaluable for a child who holds views and wants to know that they are involved in the process. There is much more scope for further involvement for children. For some children, meeting with a judge will be invaluable so that the child feels their views have been seriously considered and heard in the proceedings.
When looking at the legal framework which attempts to ensure that children’s voices are heard, we must remember that it is the child more than anyone else who will have to live with the decisions of the court. There are a number of issues which need to be addressed in relation to the voice of the children in proceedings. For example a large number of children proceedings are heard by the magistrates’ court and there are as yet no proposals as to whether children should meet with the judge in these cases. The UN Convention on the Rights of the Child (UNCRC) is increasingly recognised by judges and other practitioners in the family justice system as valuable and persuasive. Article 12 of the Convention gives children the right to hold an opinion and for that opinion to be heard and weight attributed to it. The UNCRC highlights the need to assist children in being more heavily involved in proceedings and goes beyond what is prescribed in our domesticlaw. The case of Re E (A Child)  EWCA Civ 473,  1 FLR 1675, demonstrates that we cannot so easily discount what children say on the basis of their young age and apparent lack of understanding. We need to provide an environment where all children can be encouraged and supported to talk, not just with a legal framework that in theory allows access to the court, but within an entire system that in actuality makes this possible.
Sir Alan Ward’s made the opening remarks in Re A (Conjoined Twins: Medical Treatment)  1 FLR 1, that ‘this court is a court of law, not of morals, and our task has been to find, and our duty is then to apply, the relevant principles of law to the situation before us – a situation which is unique’. This view very much appears to be a ‘mechanistic’ view of law and leaves little room for judges’ own values and beliefs to creep into judgments. This view is that you go to court to find the right answer; there is only one outcome that can be arrived at if one correctly applies the law to the facts. However, this is not entirely correct as the family division judges do make moral choices, Lord Hoffmann in Piglowska v Piglowski  2 FLR 763 at FLR 783H states:
‘[T]hese guidelines, not expressly stated by Parliament, are derived by the courts from values about family life which it considers would be widely accepted in the community. But there are many cases which involve value judgments on which there are no such generally held views… These are value judgments on which reasonable people may differ. Since judges are also people, this means that some degree of diversity in their application of values is inevitable and, within limits, an acceptable price to pay for the flexibility of the discretion conferred by the Act of 1973. The appellate court must be willing to permit a degree of pluralism in these matters.’
In Re J (Child Returned Abroad: Convention Rights) UKHL 40,  2 FLR 802, Baroness Hale explains the fundamental importance of discretion in the family jurisdiction; that the balancing of factors 'relevant to the exercise of discretion is…a matter for the trial judge. Only if his decision is so plainly wrong that he must have given far too much weight to a particular factor is the appellate court entitled to interfere'.’ What this means is that judicial discretion can be an excellent means of dealing with family disputes but it can also be a matter for confusion, and thus of litigant’s bitterness.
Understanding how family law works is not easy and this has been made a little bit more difficult by the book written by Ian McEwan called The Children Act. It’s not about family law, it’s about children’s rights; it’s about a child who refuses a blood transfusion. The book does, however, deal with the dilemma facing courts and other decision makers, when a competent child refuses treatment necessary to keep him or her alive or prevent a serious deterioration in health. The Children Act's Fiona Maye is a High Court Judge. Fiona is asked for an emergency court order: a teenage Jehovah's Witness is refusing the blood transfusion that would save his life. Visiting him in hospital, she is touched by the boy's intelligence and the fact that he reads poetry and plays the violin for her, while she sings along. Fiona Maye makes her judgment; "this has been no easy matter to resolve. I have given due weight to A's age, to the respect due to faith, and to the dignity of the individual embedded in the right to refuse treatment … “ As the Children Act of 1989 demands, she must rule in the interests of Adam’s welfare. Nevertheless should a teenager who is still a minor, and raised within a closed religious system choose to risk and probably end his own life? Fiona Maye decides to permit the transfusion and so define “welfare” against the will of the patient, his parents and his faith. McEwan argues so persuasively for science and reasons against such religious strictness, but the Children Act is also a novel that is forged in discussions and the friendship of these two super-intelligent “innocents”, essentially the nearly 60 year old judge and the unwell, headstrong teenager which perhaps one could argue leads does not lead child rights into light but rather into darkness.
What the book does capture is that judges make decisions about the law and its consequences that will have profound effects on the lives of individuals and communities. At the same time, we want our judges to be both human and engaged, yet fair and impartial. The friendship of these two different ‘’innocents’’ encapsulates the need to view children as real human beings when speaking to them in private and similarly for the child to perhaps get the chance to meet the judge and realise that the judge is also a real human being. Although any suggestion of reform would have an enormous impact on the courts which are already stretched in an era of reduced funding for the court system, there needs to be further consideration when it comes to children wanting to give evidence in a family law case, judges should not be so reluctant to let them. Any reform in the law, however, needs to take account of the age of the child, the context of each case and address broader issues around which section of the judiciary hears or indeed sees the children to decide such cases. In the courts children should be front and centre, and their wishes and feelings taken into account.