The Voice of the Child: How is the child heard in Public Law Proceedings?
“Children are not just the passive recipients of other peoples concerns for their best interests – they are moral actors in their own right, with a point of view of their own, which should be heard”
These are the words of Baroness Hale of Richmond contained within her inspiring talk entitled “Making Childrens Rights Real” the 2006 Inaugural Annual Lecture of the Childrens Law Centre.
Baroness Hale went on to explore how we see things from the point of view of the child rather than the adult and the next stage is from the point of view of an individual child. The child must be looked at as a person with a vital story to tell in the story of their whole family. They are real people not abstractions.
As a Solicitor who is instructed by NIGALA to represent children in Care Proceedings and Freeing for Adoption Proceedings, I know that it is not an easy task to ensure the child’s point of view remains at the core of the decision making process. It challenges your legal knowledge, practical skills and basic common sense. It raises a multitude of dilemmas which you would not normally face when acting for adults.
Children have rights
Children have rights and those rights are a well established feature of the Legal landscape. The United Nations Convention on the Rights of the Child 1989 is the principle international instrument defining children’s rights. It has been ratified by the UK but is not currently binding in Northern Ireland Courts. It is used as an interpretative tool when examining compliance with ECHR Rights. Articles 6 to 40 of the Convention set out many Rights beginning with the Right to Life and ending with the Rights of Children accused of crime.
The Rights enshrined reflect the ethos in the Convention that the parent, Court, or local authority, are expected to have the welfare of the child as their primary concern. Article 3 requires that “in all actions concerning children, where they are undertaken by public or private social institutions, Courts of Law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. The Convention also decrees that the primary responsibility for bringing up children lies with their families. The third theme is that children should be heard.
Article 12 requires that “the child who is capable of forming his or her own views be assured “the right to express these views freely in all matters effecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.” In particular this must include the opportunity to be heard in any Judicial and administrative Proceedings affecting the child.
The Human Rights Act 1998 came into force in Northern Ireland on the 2nd October 2000. This means that the rights under the European Convention on Human Rights are now part of our Law.
The Children (NI) Order 1995 is our primary legislation establishing the frame work for the management of Public Law Proceedings. It provides a careful balance between parents, children and the state. In every situation the needs and voice of the child should be heard and respected.
Competency of a Child to give Instructions
How is the child represented in Public Law Proceedings? How do their advocates ensure that their voice is heard in some cases directly?
Rule 13 of the Magistrates Court Rules governs the appointment of the Solicitor to represent the child. It states the Solicitor appointed shall represent the child in accordance with instructions received from the Guardian Ad Litem (unless the Solicitor considers having taken into account the views of the Guardian Ad Litem and any direction of the Court under Rule 4.12 (Family Proceedings Rules) that the child wishes to give instructions which conflict with those of the Guardian Ad Litem and he is able having regard to his understanding to give such instructions on his own behalf, in which case the Solicitor shall conduct the Proceedings in accordance with the instructions received from the child). In advance of the first meeting with the child the Solicitor will have spoken with the Guardian Ad Litem and been told the age and development stage of the child, the child’s experiences to date, the child’s emotional and psychological state, the external influences on the child, cultural issues within the family and any communication issues. The first meeting with the child should take place at a venue where the child feels as much at ease as possible. The child may already have met the Guardian Ad Litem and therefore received an explanation of the Solicitors role. If not the child should be told of the nature of the Solicitor’s role, the nature of the Proceedings, the reasons for those Proceedings, what will take place at Court, the views of the Social Workers and any other Experts involved in the Case and of course the legal framework for the proceedings.
The Child’s Advocate must assess the child’s competency to give instructions. It is generally accepted that the competent child should be able to communicate their wishes and feelings, views on the background events leading to Proceedings, a perception of the reasons why he/she is in care and their perception of length of time of stay in care. The child should also be able to demonstrate an understanding of the Orders that the Court may make and his or her own views on their future. It is very important to remember that it is possible for a child to be competent about some issues but not others and the age of the child whilst relevant is not conclusive of competence in itself. The case of ReS (a Minor) (Independent Representation) 1993 2 FLR 347 cautions that understanding is not an absolute in assessing competency. It has to be assessed relatively to the issues in the Proceedings and where any sound judgement on the issues calls for insight and recognition which only maturity and experience can bring, both the Court and the Solicitor must be slow to conclude that the child’s understanding is sufficient. The child may be compliant wanting to impress or open to suggestibility. A further consideration is the need to factor in trauma, anger, mistrust, stress and pressure from others. All of this will impact upon the child’s understanding.
The establishment of competency is important, but the Solicitor must decide whether or not there is a conflict of instructions before considering the competency issue. The child is entitled to a proper explanation of events to date, and must be listened to carefully to ensure that their wishes and feelings are taken into consideration. Where a competent child’s instructions conflict with the Guardian Ad Litem, the Solicitor must conduct the Proceedings in accordance with those instructions and continue to represent the child. The Guardian Ad Litem also continues to represent that child but with a different Solicitor. The issue of competency must be kept under review throughout the Proceedings.
Participation in the Proceedings
I turn now to the question of how a child participates in Public Law Proceedings. I have borrowed MacDonald’s (2008) interpretation of ‘the voice of the child’ to mean ‘participation’ – ‘the opportunity for children both to articulate and express directly their own wishes and feelings in all matters affecting them and to have their interests adequately and independently represented in those matters’ (MacDonald, 2008, p37).
The child is automatically a party. The question of active participation should be at the forefront of all discussions with children and it is important that their views are taken seriously and afforded due weight. The non-verbal child will not participate but their rights will be upheld and advocated through the Guardian Ad Litem and their Solicitor. Participation can take the form of letters to the Judge or requests for a meeting with the Judge. Where appropriate children should be involved in consultations and drawing up of their care plans. Participation means checking the child’s understanding from time to time, working at the child’s pace as far as possible, taking account how the child likes to communicate, finding imaginative ways to communicate with children etc. Having a knowledge base of what constitutes meaningful participation is extremely important and arguably indispensable to ensure that the participation is not tokenistic.
Participation can take the form of letters to the Judge or requests for a meeting with the Judge, the parents have a right to file Statements of Evidence. Children should also be afforded this opportunity. Baroness Hale in the Hague Convention Case of Re: D (a child) (Abduction; Foreign Custody Rights (2006) UK HL 51) asserted that the principle of hearing the child unless it appears inappropriate having regard to his age and degree of maturity is of universal application and consistent with international obligations under Article 12 of the UNCRC. I quote “there is a growing understanding of the importance of listening to the children involved in children’s cases. It is the child more than anyone else who will have to live with what the Court decides. They are quite capable of being moral actors in their own right, just as the adults may have to do what the Courts decide whether they like it or not, so may the child.”
Indeed, the child who has an opportunity of meeting the decision maker enjoys an experience which they may not have had in their own family, being respected and listened to. Children can potentially suffer further harm if they are kept in isolation from or ignored about important matters in their lives.
The enforcement of a child’s right to participate may be in and of itself in the child’s best interests aside from any balance of harm exercise carried out by the Court. The Judge has an opportunity to see the child as a real person and an opportunity to find out exactly what the child wants as opposed to relying on anyone else’s accounts. The child will be left feeling respected, valued and involved and may be more inclined to accept a decision rather than one made when they feel they had no influence. Participation of a child should be encouraged even if a child is not deemed competent. There is a specific obligation to ascertain and give due weight to the wishes and feeling of the child in Adoption Proceedings under the Children Order and the Adoption (Northern Ireland) Order 1987.
Article 9 of the Adoption Order 1987 provides “in deciding in any course of action in relation to the adoption of a child the Court or Adoption Agency shall have regard to the Welfare of the child, as the most important consideration and shall have a regard to all the circumstances:
The need to be satisfied that Adoption or Adoption by a particular person/persons will be in the best interest of the child;
The need to safeguard and promote the welfare of the child throughout his childhood;
The importance of providing the child with a stable and harmonious home.
The right of active participation at the Hearing is much more problematic. Hearing at first hand the evidence of harm and allegations made against their parents is in itself a potentially damaging experience for the child. The meeting with the Judge can be discrete and arranged on a day when the Proceedings are not before the Court.
Promotion of Children’s Rights Throughout Proceedings – Article 8 Rights
How is a child’s rights realised and promoted throughout every stage of the Trust Care Planning, the Care Proceedings and Adoption Proceedings? The challenge to us all as practitioners in this field is to ensure that the children’s rights are not simply spliced onto the parents’ right as if they were identical. In Child Protection Cases when the child’s interest may be completely opposed to those of their parents this is particularly inappropriate. Furthermore an assumption that the child’s position is allied to that of the parents precludes any analysis of the child’s own rights under the European Convention.
Convention principles have been implicit in Care Proceedings since the implementation of the Human Rights Act. The question is how is this recognised by the Court and what are the remedial options. The Court must carry out a careful balancing exercise. The ultimate goal for the parents is reunification. They see this to be the prize but how does this uphold the rights of the child and the needs of the child?
Children have a right to have certainty and stability in their lives as early as possible and have a right to be brought up within a consistent, sensitive and predictable care routine. This is of central importance to the wellbeing and security of a child. I refer to Lord Scott’s Judgment in Re: G (a minor) Interim Care Order Residential Assessment 2005 UK HL 68 2006 1FLR 601 “There is no Article 8 right to be made a better parent at public expenses”. There is considerable research to show that whilst reunification is the primary goal, very young children with a background of neglect and abuse whose mothers for example have entrenched alcohol and/or drug problems are unlikely to be reunited permanently with them within a realistic time. The Courts are often asked to allow a parent of a child in Care Proceedings another chance to demonstrate real change, but the question is what effect would this have on the child. The research on outcomes and the effects on children both of abuse and neglect and of delay and uncertainty suggest that the factors to be considered by Courts and Trusts should be:
the likely outcome of rehabilitation;
the age and state of the child;
the parental problems that need to be addressed;
the likely effect on the child of delay while problems are addressed;
the likelihood of an improved situation for the child;
availability of services for the children.
There is a considerable likelihood that some parental problems will be difficult to treat and if a line is to be drawn under the possibility of reunification this should be done as early as possible to serve the child’s best interest and the possibility of a family life outside of the biological family.
Lord Chief Justice Kerr in this jurisdiction in the case of AR v Home First Community Trust  NICA8 stated in the course of his Judgement: “it is unsurprising that research into the subject discloses that it is desirable for permanent arrangements be made for a child as soon as possible. Uncertainty as to his future even for a very young child can be clearly upsetting.
Where possible of course children should be brought up within their own family. One could question how it could be in the best interests of a child to be placed in a stranger placement whilst their parents are afforded in some cases considerable periods of time to undergo multiple assessments and be seen by multiple experts. During this time the child forms attachments in their placement and become used to having only time limited contact sessions with their parents and sometimes in a supervised environment.
The Court must take cognisance of Article 8 of the European Convention on Human Rights, the right to respect for family and private life. If there is an actual or likely interference of that right, the removal of the child or separation of the parent and child, it is the State’s obligation to provide under Article 8.2 proper justification to a degree which case law in the European Court of Human Rights demands. The primary obligation placed on the Courts by Article 8 is negative i.e. not to interfere in the respected rights unless it is justified in so doing. To remove or to separate a child from its parents will almost inevitably engage the right to respect for family life and the contested issue will relate to Article 8.2 to justification.
Article 8 may also impose positive obligations which require to take all reasonable steps to permit and establish family life to continue. We must remember that this is not only the right of the parents but also the right of the child. Article 8 includes a right for the parent to have measures taken with a view to him or her being reunited with the child and an obligation for the Trust to take such action. There may indeed be a guiding line in cases between supporting and assisting in existing rights for respect for family life and intervening to allow formation of family life or providing services to improve family life or make it as successful as possible. However the child’s right is to have a family life which is risk free.
The Article 8 rights of the child to family life were considered, albeit within the context of the parents’ right to family life in, the case of Yousef v The Netherlands 2003 1FLR 2010. In this case the Applicant an Egyptian National had obtained Netherlands nationality and had a child with a Netherlands National. They did not marry and later separated. The mother contracted a terminal illness and made a Will in which she expressed her wish that her brother should have guardianship of her daughter. The father sought recognition of the child in the local regional Court by way of a Deed of Recognition. The Court refused and he lodged an Appeal to the Supreme Court. The Supreme Court pointed out that as a result of a valid recognition family ties would be created between the child and the person who had recognised the child and this had far reaching consequences. It was stated that the recognition could affect the interests of the child adversely and that those interests were protected under Article 8 of the Convention.
The case went to the European Court who were asked to consider an alleged violation of Article 8. The father asserted that his right for respect for private and family life had been breached. The Court unanimously held there had been no violation of Article 8 of the Convention and reiterated that where the rights under Article 8 of parents and those of children are at stake the child’s rights must be the paramount consideration and must prevail. It was pointed out that the child’s family situation would have been disrupted and recognition would have had the impact of setting her apart from the members of the family with whom she was living to her detriment.
Commentators on this decision however have pointed out that in dealing with the Application, the ECHR did not articulate the child’s own convention rights at all. The child’s own interests were mentioned purely in passing and only in the context of qualifying the rights of the Claimant parent. For example there was no discussion of the child’s own religious rights and no mention of the child’s own right to retain a relationship with her father or indeed any discussion of her relationship with her paternal grandparents. It is clear therefore that a child’s right to claim the protection of the European Convention is fully acknowledged by the Court in some contexts but not in others. The Court shows a very clear appreciation of the child’s status as a person protected by those rights in the context of education and youth justice but not in Private and Public Law Proceedings.
Judges in applying Article 8 in our Domestic Courts do carry out the balancing exercise of weighing up harm and risk to the child in returning them to the birth family against the benefits to the child in being with their natural parents. Interference is deemed to be necessary and proportionate where the safety of the child is completely compromised. The Guardians are explicit in their Reporting that they considered the human rights of both parents and child in reaching their conclusions.
Due consideration must be afforded to the parents’ rights under Article 8 of the ECHR but also the rights of a child to “a family life”. Indeed this may sometimes only be done by following the path of adoption.
In summary the human rights of the child in Public Law Proceedings are promoted and realised through the following:
The verbal child’s participation either through direct meetings with the Judge or indirectly through letters and the Guardian Ad Litem;
The non-verbal child through their Guardian Ad Litem and advocate;
Wishes and feelings are ascertained and communicated to the Court and given due weight in the decision making process;
Right to a fair hearing under Article 6 of the Human Rights Act 1998 (Baroness Hale of Richmond pointed out that striking a balance between achieving a fair trial under Article 6 and respecting the Article 8 rights of the child including their rights to be protected from attacks on their psychological integrity “may well mean that the child should not be called to give evidence in the great majority of cases”.
The balancing exercise to be carried out by a Judge in determining whether the State should interfere with a child’s right to family life and is that interference justified.
This is a constantly evolving landscape and practitioners must ensure that the voice of the child is heard as loudly if not louder than those of the parents and other protagonists. The children cannot be left in limbo in short term foster placements without final plans for their future whilst the parents are afforded lengthy periods to be assessed by Experts and given an opportunity to engage in parenting courses and residential assessments. None of us want a care system where a child is subjected to further emotional harm as a result of the decision to intervene and remove them from their families.
The best interest principle is still the recognised gold standard and tool for ensuring that children’s welfare is the principal driver of decisions concerning them. There is no one formula, or course of action which can guarantee a child’s best interests, nor is there an interpretation of that best interest which can protect all children all of the time (Timms, 1995; Mnookin, 1985).
As I have stated at the outset children’s rights are articulated by the UNCRC and to be of real value to children this must be in collaboration with domestic legal provisions and procedure, be capable of practical application and enforcement to ensure their continued integrity and to achieve proper redress on occasions when they are breached. The reality however is that there remains a distinction in practice between the acceptance of children’s rights under Article 3, Article 6, Article 8 and Article 12 and the procedural capacity for children to enforce those rights. Of course we have the domestic statutory application of the Human Rights Act 1998 and this and the ECHR should not be underestimated as a tool for advancing children’s rights in our domestic jurisdiction.
On a positive note, the clear line of authority from the House of Lords which requires domestic legislation to be interpreted and applied in a manner consistent with the UNCRC and the obligation to interpret the ECHR in accordance with the terms of the UNCR, provides us with the canvas on to which the rights enshrined on the UNCRC can be projected in domestic proceedings. Children can and should rely on these international institutions in seeking to enforce their fundamental rights.
I shall finish as I have started quoting from another Children’s Law Centre Lecture. Maud de Boer Buquicchio Deputy Secretary General of the Council of Europe in her exploration of The Protection of Children’s Rights in European Justice Systems observed…
“Just because children are small their rights are not (or should not be considered as) small – quite the opposite. As I frequently say, children are not mini human beings with mini rights.”
Anne Marie Kelly (09/03/12)