Voice of the Child

Representation and Participation of Children in Proceedings

• Vital component of child friendly proceedings as the child is at the center of decision making and is Best placed to provide insight

• Children should be entitled, where possible, to have a say, at the very least to be heard, in - relation to what happens to them

• Childs view will not determine what is in his or her best interests - best interests are not the same as expressed interests of child

elements of hearing the voice of the child

• Allowing the child to express his or her views and facilitating that expression of views without distinction as to their age

• The right to have his or her view given due weight based on the age and maturity of the child

• Proper explanation of the decision – how the child’s views were considered by the decision-maker.

Re A: Letter to a Young Person [2017] EWFC 48

judge emphasises

• “It is a mark of respect to a child to ensure they understand that their views were seriously considered... even when their wishes cannot always be fulfilled.”

lundy model of participation (elements of hearing the voice of the child

space (opportunity to speak)

voice (fascilitation to speak)

audience (must listen)

influence (taken seriously)

United Nations Convention on the Rights of the Child (UNCRC) - Article 12

1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child

2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child

Article 12 is not only a right in itself, but also one the fundamental guiding principles of the UNCRC

States therefore have an obligation to put mechanisms in place for the child to be heard – either directly themselves where possible, or through a representative

article 12 - two step process

• Child has the right to express view/or not express their view

• Child has the right for their view to be given due weight in decision making

constitution of Ireland - Article 42A

any child who is capable of forming his or her own views, the views of the child shall be ascertained and given due weight having regard to the age and maturity of the child.”

These relate to: “all proceedings—

• brought by the State, as guardian of the common good, for the purpose of preventing the safety and welfare of any child from being prejudicially affected, or

• concerning the adoption, guardianship or custody of, or access to, any child

FN v CO (2004)

Children have a constitutional right under Article 40.3 to be heard as an aspect of constitutional right to fair procedures

ways to ascertain the voice of the child

directly

indirectly

direct testimony from children in court

• Direct testimony from children in court is discouraged as it is thought to be stressful and distressing for the child

• parents might object to the child speaking with the judge in confidence (C v W [2008]) (AB v CD [2011])

• live television link

indirect testimony

this happens through an intermediary such as a guardian ad litem and/or legal representitive

the role of guardian ad litem (GAL) in child care proceedings

• GALs (Guardian ad litem) job to express views of the child in care proceedings

• GAL - person appointed by the court to represent the best interests of a child in child care proceedings.

• Statistics -- manner in which they[courts] utilise this varies greatly

  • E.g. older children made parties to proceedings etc.

independent guardian ad litem agency

• Formed in 2014 and operates nationally.

• Aim: to achieve and ensure a consistently high level of Practice standards for all Guardians within the agency.

judicial interviews with children

Judges have discretion on whether they interview children who are the subject of custody or access disputes in their chambers

• RB v AS (2002)

they usually meet in chambers

Child and Family Agency v DE (Admissibility Hearsay Statements - Abuse) [2014]

• concerned whether statements made by three children outside court could be admitted as evidence under s.23 of the childrens act 1997, despite the hearsay rule.

• The Court considered whether the statements should be admitted as evidence where the children were incapable of giving oral evidence or where the giving of oral evidence would not be in their best interests.

• The Court also addressed the issue of whether it was appropriate for the children to meet privately with the judge hearing the case.

children meeting trial judge

purpose is to benefit the child, not to gather evidence

GAL responsibilities in child meetings

a. The GAL is to ensure that the children are aware in advance of the purpose of the meeting as set out above.

b. The children are to be made aware by t he GAL in advance that the meeting is not confidential and that what is said will be made known to t he respondent.

c. T he GAL is to ensure t hat the children are aware that it is the judge who w ill make the decision and that their views and wishes are only one of many factors to be considered by the judge. The decision remains the responsibility of the judge and the children are not in any way responsible for the outcome of the case.

d. The GAL should bring the children to the meeting and she is to attend it.

e. The GAL is to take minutes of what is said and submit it to the judge for approval prior to it s circulation to the parties.

f. The meeting should take place in the body of the courtroom where it can be recorded by the DAR system.

g. The meeting should take place before the hearing to ensure that:-

• i. the respondent is given an opportunity to respond to the content of the meeting;

• ii. any issues raised therein can be fully ventilated in the evidence; and

• iii. the children are known to the judge who is making the decision when t he decision is being made and

not after the decision making process has concluded

O’D v O’D

Justice Abbott gave general guidance to family law judges on interviews with children

key points from justice abbotts observations

Judicial Discretion:

• Justice Abbott emphasized that judges have discretion on whether to interview children in family law cases. There is no automatic right for a child to be interviewed by the judge, and whether the child should be spoken to depends on the circumstances of each case.

Age and Maturity of the Child:

• A crucial factor in deciding whether an interview is appropriate is the age and maturity of the child. The judge should assess whether the child is capable of understanding the proceedings and communicating their views effectively.

Impact on the Child:

• It was highlighted that interviews with children should be conducted with great care, as they can be emotionally distressing or traumatic for the child, particularly if the issues at hand involve family conflict or sensitive matters. The best interests of the child must always remain the primary consideration.

Nature of the Interview:

• Any interview should be held in a private, non-adversarial setting, such as the judge's chambers, and should be conducted in a manner that avoids pressure or coercion. The goal is to create a safe and supportive environment for the child to express their views.

Purpose of the Interview:

• Justice Abbott noted that such interviews are primarily for the purpose of understanding the child’s views on matters that affect them, but these views are not determinative. The judge is still responsible for making the final decision based on all the factors in the case, including the child’s wishes, but also considering their welfare, emotional well-being, and overall best interests.

judge duties - justice abbott

1. The judge shall be clear about the legislative or forensic framework in which he is embarking on the role of talking to the children as different codes may require or only permit different approaches

2. The judge should never seek to act as an expert and should reach such conclusions from the process as may be justified by common sense only, and the judge’s own experience.

3. The principles of a fair trial and natural justice should be observed by agreeing terms of reference with the parties prior to relying on the record of the meeting with children.

4. The judge should explain to the children the fact that the judge is charged with resolving issues between the parents of the child and should reassure the child that in speaking to the judge the child is not taking on the onus of judging the case itself and should assure the child that while the wishes of children may be taken into consideration by the Court, their wishes will not be solely (or necessarily at all,) determinative of the ultimate decision of the Court.

5. The judge should explain the development of the convention and legislative background relating to the Courts in more recent times actively seeking out the voice of the child in such simple terms as the child may understand.

6. The Court should, at an early stage ascertain whether the age and maturity of the child is such as to necessitate hearing the voice of the child. In most cases the parents in dispute in the litigation are likely to assist and agree on this aspect. In the absence of such agreement then it is advisable for the Court to seek expert advice from the s. 47 procedure, unless of course such qualification is patently obvious.

7. The Court should avoid a situation where the children speak in confidence to the Court unless of course the parents agree. In this case the children sought such confidence and I agreed to give it them subject to the stenographer and registrar recording same. Such a course, while very desirable from the child’s point of view is generally not consistent with the proper forensic progression of a case unless the parents in the litigation are informed and do not object, as was the situation in this case

importance on the skills of the listener

• A significant number of participants in this study expressed the view that the quality of the participatory experience for the child is directly influenced by the communication style and skill level of the judge concerned, which was seen to vary greatly from judge to judge

• Some judges are suited to meeting children, some of them are not

criminal law proceedings - criminal evidence act 1992

Section 13 – evidence through a television link

Section 14 – evidence through an intermediary

Section 16 – video recording as evidence at trial

other methods of child friendly proceedings

• In camera proceedings – public not permitted to enter courtroom and there is limited/anonymous court reporting –

• Normal rules regarding court formalities i.e. Judges/Barristers attires (wigs and gowns) are dispensed with

• Child proceedings are heard in different venues and on different days to other types of cases

potential areas for improvement?

Guidelines as to the factors that Judges should consider when assessing the significance of as child’s wishes

Should there be a minimum age for a child be for their wishes to be taken into account, to be entitled to separate representation, to attend Court to give evidence?

Clear Guidelines as to how best to access the child’s wishes

Clear Guidelines as to how judges talk to/interview children

Clear Guidelines on suitability/competence of professional reports

Clear Guidelines on format, service and admissibility of reports