On Monday 20 October 2008, President of the Family Division and Chair of the Family Justice Council, Sir Mark Potter, chaired a wide-ranging debate at the Inner Temple examining a key issue for the family courts - how far should the participation of children and young people in family proceedings be enhanced?
While no speaker argued that children should not be heard at all, there was lively discussion as to how far participation should be taken. Are young people entitled to be present in court if they wish to attend? And should judges see children in private during the course of proceedings?
In keeping with the Family Justice Council's interdisciplinary nature, the debate was attended by participants from across the family justice system. Speaking on the panel or from the floor were judges, barristers and solicitors, mediators, social workers, Guardians, psychiatrists and therapists.
The debate also featured the voices of young people who had been through the courts system themselves.
Speaking in favour of widening participation, Mr Justice Hedley conceded that judges should constantly ask themselves how far children were taking part freely in proceedings and how far they understood what it was that they were participating in. He warned against using children's evidence to switch responsibility for deciding the outcome of a case from adults to children. However, he emphasised the importance of allowing children a say in cases which fundamentally affect their lives. "These cases are about children," he said. "It's important to remember whose life is at stake."
Anthony Douglas, Chief Executive of CAFCASS, also offered support for enhanced participation. He noted that the family courts are a service for children and, given the increasing emphasis on choice and participation in adult social services, he claimed it was "perverse" not to offer children a say in their own cases.
He pointed out, however, that a large proportion of the children involved in public law cases are under the age of six, that many are deeply distressed, or can be suffering mental illness or dealing with language or other barriers which make their participation problematic. "Seeing a judge can be an important part of the process," he said. "There is a real importance in children feeling that they are being taken seriously - but they must be well prepared in advance."
Anthony Hayden QC, argued for a more cautious approach to children's participation.
"The court room is a professional environment where professionals step up to take decisions parents haven't been able to," he stated, insisting that it was difficult for lawyers, trained to evaluate points of law rather than the emotions of children, to incorporate children's evidence into their deliberations.
He suggested that the current clamour for increasing child participation was born out of a misunderstanding of the Human Rights Act, in which the sense of rights being used to "protect" had been forgotten.
Anthony Hayden said he believed that it would often be inappropriate and distressing for children to hear the details of their case in court, that their presence may infringe a frank airing of the issues, and that allowing children to speak to judges in private may both inhibit the parents' rights and compromise the judge. Finally, he argued, we best achieve effective participation of children by ensuring that they have good representation in court and for that reason cross-disciplinary support for children should be improved.
This last issue was forcefully taken up by the final speaker in the debate, former Chair of NAGALRO Alison Paddle, who drew on her long experience of working with children to make the point that the role of the Guardian in representing children was of fundamental importance in family court proceedings and should never be seen as second best to speaking to the judge. "Participation must be genuine," she argued. "It must be tailored to the needs of children and it must be properly resourced."