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Children's Involvement in Court

Date:25 JAN 2006

At the Children Law UK conference in December 2005, the President of the Family Division, Sir Mark Potter stated:

'I would like to finish with a thought which may provoke discussion, and that is whether we should review the reluctance of the English judge to talk to children in private. This regularly occurs on the continent of Europe. Wall LJ notes in Mabon v Mabon that this reluctance is rooted in the rules of evidence and the adversarial mode of trial; that what is said in private by the child to the judge cannot be tested in evidence or in cross-examination; and that the judge cannot therefore promise confidentiality. In an effort to ensure the welfare and happiness of the children, and to listen to their voice first-hand should we not be encouraging judges to talk to the children in private, trusting the judge who has done so to retail the burden of his concerns as a result, whilst respecting the confidence of the child in sensitive areas.'

In Every Child Matters (Department of Health, 2003) the Government stressed the importance of involving children and young people and listening to their views.

District Judge Nicholas Crichton says there is a growing feeling that courts need to accommodate the wishes of children to be heard or to take ownership of some part of the proceedings, in which decisions will be taken which will have an important bearing on their lives. Some children may want only to meet the judge who will make the decision, either before the hearing to make sure that the judge has understood their wishes and feelings; or after the hearing to have the decision explained to them. Some may want to give evidence. Some may prefer not to take any part and to leave the decision to the court. What is important is that the alternatives are discussed with the child and that he/she should be given the choice. This means providing the child with the information to enable him/her to understand the whole process, and then discussing it with him/her in order to establish how best to meet his/her individual needs in relation to a process which has the potential to affect the rest of his/her life.

See March [2006] Fam Law 170 for the full news article by District Judge Nicholas Crichton.

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The Court of Appeal's decision in Mabon v Mabon can be found in [2005] 2 FLR 1011.

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