Family Law publishes a regular column by The Transparency Project. This blog post originally appeared in the December 2017 issue  Fam Law 1396.
October 2017 saw a variety of interesting cases, commentary and conferences discussing children’s voices in the family justice system. This is of particular interest to The Transparency Project. Children are the focus of much of the decision making in family courts and the role they should play in decisions about their own futures is not always clearly defined or supported.
If children lack understanding of the court process or are not well protected within it, this has implications for how effectively their wishes and feelings can be communicated – not only within the particular court arena of their own proceedings, but also regarding their contribution to the wider debate about the transparency of the family courts. How successful have we been in identifying the best ways for children’s voices to be heard both within and about the system that is supposed to be all about their welfare?
RESEARCH ABOUT CHILDREN’S REPRESENTATION
During the late 1990s, there were a number of research studies and publications about the views and experiences of children in family courts, and the ways in which their wishes and feelings were represented. These included: Out of Hearing by Judith Masson and Maureen Winn Oakley (Wiley, 1999); Guarding Children’s Interests by Jean McCausland (The Children’s Society, 2000); Good to Talk by Bren Neale and Carol Smart (University of Leeds, 2001); and an overview, Listening to Children’s Views by Ann O’Quigley (Joseph Rowntree Foundation, 2000).
It is unfortunate that, despite the increasing controversies about the family justice system, there now seems to be a lack of funding for enquiry into this topic. There are some good materials on the Cafcass website to assist children in understanding the system, but this is going to be of limited effect if it is not shared with other social workers and lawyers. Back in July 2014 Simon Hughes, the then Justice Minister, announced at the Voice of the Child Conference, the Government’s (then) proposal to permit all children over the age of 10 an opportunity to speak directly to the judge. He said:
‘Children and young people must by law have their views heard before decisions are made about their future, and where decisions are made that will impact them. At the moment, it is still too often that their views are not heard. Or that the law is interpreted to mean that others can make an assumption about the view of the child or young person – often for the best of intentions and acting in their interest, but nevertheless with the outcome that the child or young person does not feel that their own distinct voice was heard.
I therefore want to announce that it is the intention of the Ministry of Justice, and therefore the Government, that we move as soon as is practical to apply in all our family justice proceedings in England and Wales where children and young people are concerned the policy that it will be the normal practice, the norm, that, from the age of 10, children and young people involved in public or private law family justice proceedings before the courts will have access to the judge, in an appropriate way which reflects their feelings and wishes to make clear their views as to what is the best resolution of the family dispute in their interest.’
However, Sanchia Berg reported on 17 October 2017 that a recent Freedom of Information request had confirmed the Ministry of Justice has now shelved any consideration of these proposals. She further noted unhappiness with the current system remained, with children, campaigners and some judges calling for a change in the law so that children can talk in private to the judge if they so choose. The current system whereby children are generally shielded from direct involvement in the court process is set up to protect them but ‘many children are unhappy with this, and feel they don’t have a voice. It can mean they distrust the process and won’t support the decision made’ (see here).
From a children’s rights perspective, it is of course arguable that a child should have direct contact with a judge; the question remains as to what this will in reality achieve. It is now more than two years since the publication of the Final Report of the Vulnerable Witnesses and Children Working Group by Mr Justice Hayden and Ms Justice Russell. This set out, in detail, the value that (even young) children’s evidence can be given. However it also emphasised that ‘meeting the judge’ was not part of the evidence before the court:
‘There is a dangerous conflation of the need for the child or young person to be part of the proceedings and to be given an understanding the legal process (which should include meeting the judge if appropriate) with having her or his views, wishes and feelings and direct evidence of what they may have suffered or seen (their evidence) before the courts.’ [para 23]
If we ever do make progress toward children routinely meeting judges, as the report notes, expectations will have to be carefully managed.
With regard to hearing children’s voices about the system more generally, two recent conferences (Nagalro, ‘But What About the Children: Hearing the Voices of Children and Young persons in court proceedings’ on 9 October 2017 and The Open Nest charity, ‘Myths and Monsters of Child Protection’ on 16 October 2017) highlighted how the current system may in theory have established a framework for children’s voices to be heard, but in practice was failing to identify at an early stage which children wanted to be heard and, further, was failing to provide the necessary practical support to enable (particularly very young) children to communicate their views.
Adult speakers at the Open Nest conference who had direct experience of the child protection system as children, emphasised the importance of allowing children access to an accurate narrative about their family, and were saddened about the obstacles often put in the way of such access – ranging from misplaced assumptions about what the children wanted or needed – such as a continuing relationship with siblings even if they did not live with them – to the practical barriers of communication when professionals used technical terms or jargon.
Possibly the most sobering point to emerge, was from a presentation by the Triangle organisation at the Nagalro conference, which emphasised an obvious but often overlooked point – that the child’s ability to give reliable information to adults, depends very much on the skill of the adult questioner; to provide a supportive environment and to recognise communication that is not verbal.
It is clear that the family justice system still lags well behind the criminal courts in making effective provision for vulnerable witnesses. Speakers at the Nagalro conference commented in particular that the decision in Re W  UKSC 12,  1 FLR 1485, although leading to more ‘Re W assessments’ about the benefit/harm to children of giving evidence in court proceedings, does not appear to have translated into greater numbers of children actually giving such evidence.
But assessing benefit/harm with regard to children giving evidence goes beyond the immediate impact on the particular child. The impact of family dynamics and tensions are also going to be much more pressing for children who remain dependent upon their adult family members. Cases where children want to speak are almost inevitably going to be those of significant conflict between disputing adults – be they parent against parent or parent against social worker. Such cases have potentially seriously ramifications for the child beyond the court hearing itself.
Two recent cases illustrate this. In July 2017 Peter Jackson J (as he then was) provided his judgment about a private law contact dispute in the form of a letter to ‘Sam’ the 14-year-old at the heart of it (Re A (Letter to a Young Person)  EWFC 48). Peter Jackson J recognised that Sam’s articulated wishes and feelings were more likely to be his attempt to please his father, thus they would carry much less weight. Sam apparently met this decision ‘with equanimity’.
A very recent Court of Protection case before Hayden J (Salford Royal NHS Foundation Trust v Mrs P  EWHC EWCOP 23) involved the 12-year-old and 14-year-old grandchildren of a woman who was in a coma and sustained by artificial feeding, giving evidence about whether they thought their grandmother would wish to be kept alive in this way. This could be seen as either powerful recognition of the children’s autonomy, in allowing them to speak about a much loved grandmother – or a potentially unhappy experience which put their evidence directly in conflict with the evidence of their aunts and which will no doubt have a significant impact on the family dynamics for years to come.
However, children’s voices are not and should not be limited to being heard in particular cases – by police ‘ABE’ interviews, cross examination, or letters to the judge written with the support of a Cafcass officer or guardian. Children are at the heart of most of the decisions made in family proceedings and their views about the system in general also need to be heard.
OPENING UP THE COURTS
One of the original aims of the move toward more open justice in family courts was to provide a child with a proper record of the court decision that was made about them, so they could read and understand this when they grew up. This was a running theme in the government consultation and policy papers issued between 2005 and 2009. By the time the President issued his judicial guidance in 2014, the objectives seem to have been narrowed to appeasing the media and public interest points, with these private interest points somewhat lost.
With regard to that issue of particular importance to The Transparency Project – whether public legal education about the family justice system would be better promoted by greater openness around court proceedings – the views expressed by children and young people are generally reported to be negative. Two representatives of the Family Justice Young People’s Board spoke at the Nagalro conference and were asked directly by an audience member what they thought about further opening up of the family courts. The representatives confirmed that a majority of their members were against it.
It is often stated and assumed that when children are asked about opening up the family courts, they are generally unhappy with such proposals. However the reality is more nuanced that this (see The Transparency Project blog post of 8 May 2017 ‘Accuracy of reporting – not just for journalists‘). In 2009, a team led by Dr Julia Brophy interviewed young people (as young as nine) about their views on journalists attending court and reporting on cases. Young people tended to be resistant to the idea of children’s details being public and were sceptical of the motives of the press. However, some did identify possible benefits in older children or parents being able to give their side of the story. Some also thought more publicity would help people know that being in care wasn’t the child’s fault.
In 2014 there was a report commissioned by NYAS and the Association of Lawyers for Children: ‘Safeguarding, Privacy and Respect for Children and Young People and the Next Steps in Media Access to Family Court’, authored by Dr Julia Brophy with Kate Perry, Alison Prescott and Christine Renouf. This report was concerned about the potential for negative impact upon children if court proceedings were opened up to greater scrutiny following interviews with children; however Lucy Reed (Chair of The Transparency Project but in this instance writing on the Pink Tape blog in August 2014) noted that only 11 children were involved in the study and the children were not interviewed separately but concurrently in the course of a day (meaning that they are likely to have influenced one another). Later research by Brophy (‘A review of anonymised judgments on Bailii: Children, privacy and “jigsaw identification” ‘ see, ‘Anonymisation practices in children judgments: time for a rethink’ in January  Fam Law 77) also indicated that young people were unhappy about proposals for more relaxation of restrictions and an increase in publication on Bailii. Again, these findings were more nuanced than a simple rejection of openness, with the young people who took part making constructive suggestions about alternative ways of improving public legal education.
The research on the President’s guidance on publication of judgments undertaken by Julie Doughty, Alice Twaite and Paul Magrath (‘Transparency and the publication of family court judgments’ Cardiff University/Nuffield Foundation 2017, see ‘Transparency scheme falls short’ in May  Fam Law 549) included discussion with the Family Justice Young People’s Board (FJYPB) and the National Youth Advocacy Service. While both groups expressed concerns about the potential risk to privacy of children resulting from the guidance, they were not aware of any children in fact being affected. The FJYPB did not see it as problematic that Cafcass officers were not warning children about the likelihood of publication.
We will always have to face the difficulty of the shifting boundary where the ‘child’ becomes a ‘young person’, and thus has wishes and feelings more likely to carry weight with surrounding adults. Where this boundary falls in each case is entirely fact specific – all children are different and a ‘one size fits all’ general legal principle is likely to offend against the need to consider the welfare of each individual child. There needs to be a constant and sensitive recalibration between the tensions of paternalism and autonomy. Most (but not all) 7-year-olds would find the court arena confusing and upsetting. Many (but not all) 14-year-olds who want to be actively involved, arguably should be encouraged to take as direct a role as possible in the process that brings consequences they in particular will have to live with.
It is clear that we have not moved much further forward in recent years in establishing a clear framework for our deliberations about how best to promote the voice of the child in family proceedings, and neither do we yet have clear consensus on the weight to be attached to what children say about the system itself.
Probably this is because the tensions between paternalism and autonomy are significant and hugely variable from child to child. Any system that genuinely wishes to promote the welfare of each individual child within it, will have to recognise that there are no short cuts; it will take time and money to properly investigate what children want as this will involve providing environments for children which offer a genuine opportunity for them to make their views known.
It is important that we continue to investigate how children’s voices can be heard but we must also be careful not to give children false hope about what they can achieve in the process. Although they are often the primary focus of the family justice system, they remain children and most will need adults to have the courage and commitment to make the right decisions on their behalf.
Sarah Phillimore, Barrister, St John’s Chambers.