At the end of this module you will be able to:
- Identify some strategies for explaining decisions to children.
- Identify strategies to help children determine what course of action to pursue next.
- Understand how you might use children’s rights to support an appeal.
- Appreciate the importance of working in conjunction with other services to support the child’s wider needs.
If you can, please bring with you or have available the list or database of organisations to which you refer or signpost clients for support or advice on issues such as welfare benefits, asylum support, healthcare including mental health. You may also have a list of organisations providing general support, advocacy, or peer support.
It is a lawyer’s responsibility to ensure that their child clients understand any decisions that are taken in relation to their case. This is important because:
- The decision may have a profound impact on the child’s life in the short, medium and/or longer term. Having a clear explanation of the decision and why it has been taken can help the child (and, indeed, those responsible for their care) to live with it. The advice you give now may be something that the child comes back to as they grow up.
- The child needs to understand the decision before they can instruct you on how to act on it, particularly if there are options for further legal challenges.
- Formal judicial decisions may present the child with other decisions linked, for example, to accessing ongoing support, such as social and welfare services. Children will need to understand their rights and obligations in order to make decisions in the future.
- It is important that the child knows how and when to come back to you for further advice if a decision is not enforced properly or if their circumstances change.
Judgments and court rulings affecting children should be duly reasoned and explained to them in language that children can understand, particularly those decisions in which the child’s views and opinions have not been followed.
The child’s lawyer, guardian ad litem or legal representative should communicate and explain the given decision or judgment to the child in a language adapted to the child’s level of understanding and should give the necessary information on possible measures that could be taken, such as appeal or independent complaint mechanisms.
Explaining decisions to children
It is critically important to provide an honest, complete and clear explanation to a child of any official decision relating to their case. The explanation should include three main elements:
- What has been decided
- The reasons given for the decision, including the extent to which the child’s expressed wishes and feelings were taken into account (although this may not always be apparent in the judge’s reasoning).
- The implications of the decision for the child in the short, medium and longer term. This should be as comprehensive as possible, and might cover immediate enforcement, further appeal, sanctions, access to compensation, criminal records, access to higher education, implications for family members, etc.
You should refer back to the materials in module 2 for suggestions of good practice when taking instruction from a child since many of the communication strategies outlined there will apply here as well.
Providing an honest and clear explanation can be difficult, particularly where the decision is not what the child was hoping for and where it has grave (perhaps even life-changing) consequences, such as removal or deportation of the child or a family member, loss of contact with a family member, or imprisonment. If you have carefully managed the child’s expectations from the very outset of the case, this will go some way towards preparing the child for negative outcomes (see Modules 1, 2 and 4) but is unlikely to eliminate upset or distress. You will need to take into account that a child, like any other client, may find it difficult or impossible to take in information in the immediate aftermath of hearing bad news. With this in mind, think carefully not just about how you go about explaining decisions to a child, but when.
Belt and Braces: the importance of both written AND Face-to-face explanations
Decisions should always be explained in written form, usually in an advice letter. You will have already had experience of drafting a child friendly advice letter if you have completed module 2. Think seriously about whether your standard letters communicate decisions to children in the clearest, most sensitive terms possible. Since judges do not routinely address their judgments directly to children, your explanation is likely to be the only enduring record that the child will have of the decision. Look at the example provided by Peter Jackson in Re A: Letter to a Young Person  EWFC 48 for some inspiration on how to communicate a decision to a teenager in the form of a letter.
Even the most child friendly written letter should be preceded by a face-to-face meeting with the child to explain the decision. A face-to-face meeting achieves three key aims:
- To gauge the child’s reaction to and understanding of the decision and of its implications. This is particularly important for decisions that deal with complex evidential and legal issues. Observing the child’s reactions face-to-face will also enable you to assess what further support might be needed.
- To consider what should happen next and to give the child the chance to ask questions on some of the wider implications of the decision. An example in an immigration case might be how they access funding for higher education or whether they can apply to be joined by their family members living elsewhere. In family cases, the child may have questions about how the decision will affect their schooling, their friendships, contact with siblings or grandparents, whether they can see their case file, and what might happen when they turn 18. You may have to prompt the child to consider some of these issues if it is appropriate to do so, as in many cases they may not be sufficiently informed or confident to raise them.
If there are options for challenging the decision, you can present these to the child and take instructions on what he or she would like to happen next. You might also need a meeting to complete legal aid forms and gather further information to support such a challenge.
- To provide the child with a sense of closure if the decision marks the end of your involvement with them. This may involve signposting or referring the child to other sources of support that lie beyond the scope of legal advice and representation, and ensuring that the child is fully aware of how to contact you should they need help in the future.
Immigration law scenario
You represent an unaccompanied child asylum seeker – you have received a decision refusing asylum but granting leave to remain until just before the child’s 18th birthday.
You know that you have an option to appeal the asylum decision, and judge the chances of success to be moderate.
Your view is that if you do not appeal that the Home Office will likely refuse to extend leave to remain and try to remove once your client is 18. You know that the chances of an asylum claim succeeding - if raised at the point of removal once the child is over 18 - are poor. In particular, you know that if the appeal is brought whilst they are still a child a more generous view will be taken of their evidence.
- What do you say to the child about the Home Office’s decision? How much detail do you give about the reasons for refusal? Do you present this as a good outcome or a bad outcome? What do you tell them about their rights, their responsibilities, access to support and similar?
- What do you say to the child about the option of appealing? How much detail do you give about what is involved in this course of action? What do you say about legal aid? How do you encourage the child to instruct you to lodge the appeal? Or do you take their instructions on this issue for granted, given your advice about the importance of appealing now?
- What do you say to the child about the implications of not exercising their right of appeal and waiting until they are 18?
NB: In reflecting on your potential approach to this scenario, you may find it useful to consider some of the basic mistakes that lawyers make in this area, as revealed in recent research by Kent Law Clinic.
In this case, the Home Office decision is mixed news. Your client will be pleased that they have been given some form of leave, but this is the minimum that could be expected and you will already have advised them that current Home Office policy is to give leave to a child until they are 17.5 years old. You will want to advise in some detail about their rights and responsibilities, and what to expect, but you will also want to tell them why their claim has been refused and your view of the reasons for refusal.
This child should have strong advice encouraging them to appeal – for the reasons set out in the scenario – appealing and securing refugee status or HP is their best chance of long term leave to remain in the UK. You can advise about the availability of legal aid (CLR), complete the CLR form, and ask for specific instructions to lodge the appeal.
You should give detailed advice about the dangers of not exercising their right to appeal. Once they are 18 it will be harder to win an asylum appeal since they will not be afforded a more generous approach as a child, the vulnerable witness guidelines may well no longer apply, and it will be harder for them to give an accurate account of events which will be in the more distant past.
Family law scenario
You are representing a 13 year-old boy, Michael. He was removed from the care of his mother and placed in foster care when it came to the attention of the local authorities that his Mother had left him on his own while she travelled to Ireland for a holiday without having made proper arrangements for Michael’s care.
Michael, who has full, independent party status in the proceedings, wishes desperately to return to the care of his mother and applied for leave to give evidence to the court via video link since he does not feel that the strength of his feelings [are] being sufﬁciently understood and expressed to the court.
The judge at first instance had met with Michael in her room in the presence of his solicitor and the guardian. The judge explained that she did not wish to use the meeting as an opportunity to ascertain Michael’s wishes and feelings, because those wishes and feelings were already perfectly obvious from formal reports that the Court. Instead, the judge used that meeting to explain to Michael that the task of the Court is to achieve a welfare outcome for the children, and that the Court has to look at the whole picture, all the evidence that is available about the children and about the people who have been looking after them.
The judge dismisses Michael’s application to be returned to the care of his mother and his application to give evidence to the court on the basis that “…the giving of that evidence may make matters signiﬁcantly harder for him should the case go against his express wishes”, particularly as he may well feel responsible for the final decision.
- How do you go about explaining the different components of this decision to Michael?
- Do you agree with the judge’s decision? If so, how does that affect your advice to Michael regarding next steps?
- Do you think there is a reasonable prospect of a successful appeal, and on what grounds would you propose pursuing an appeal? How do you explain these options to Michael? (see below)
- How do you go about ascertaining and facilitating support for Michael’s related welfare needs?
This scenario is based on the real-life decision of P-S (Children)  EWCA Civ 223 (note that the Court of Appeal upheld the decision but an alternative, fictive version has been drafted by Jane Williams as part of the Children’s Rights Judgments Project, published in Rewriting Children’s Rights Judgments: From Academic Vision to New Practice (2017, Oxford, Hart).
- Private judicial meetings with children are a weak substitute for direct participation as a witness in proceedings. The former places emphasis on the judge having the opportunity to explain to the child what’ s going on in the process, not on the child having an opportunity to speak and the judge to listen and take those views into account.
- Should the views, wishes and feelings of a mature and eloquent teenager carry more weight than other welfare factors in such a case? Note, for example, the guidance of Thorpe LJ in Mabon v Mabon and others  EWCA Civ 634. Here the Court of Appeal referred to the UK’s obligations under Article 12 UNCRC and Article 8 ECHR and stated that the applicable domestic law was framed widely enough to meet international obligations under the UNCRC provided that:
‘judges correctly focus on the sufficiency of the child’s understanding and, in measuring that sufficiency, reflect the extent to which, in the 21st Century, there is a keener appreciation of the autonomy of the child and the child’s consequential right to participate in decision making processes that fundamentally affect his family life’ (per Thorpe LJ, para 26).
- Note also the comments of Briggs LJ in the factually similar case of Re R  EWCA Civ 167, para 36 (in adhering to the wishes of a 14 year old girl to give evidence directly to the court concerning alleged sexual abuse by her father):
“The risk of harm which the process may cause to this bright and articulate fourteen-year- old does not seem to me to be more substantial than the risk of long-term harm at being denied the opportunity to have her evidence properly weighed in the determination by a court of matters of the utmost importance to her”
Appeals and further proceedings
Of course, the chance of a further appeal succeeding, and of getting legal aid funding to proceed, will depend on various factors – there are some factors outside your control, but there are others that are within it.
Following a children’s rights approach (as set out in Modules 1, 2, 3 and 4) will mean you have laid the best foundations for an effective appeal. This could be on procedural grounds (if, for example, there was insufficient opportunity for the child to be heard) or substantive grounds (for example, a failure to properly assess best interests – after you have argued for an expansive approach to this issue). In other words, introducing children’s rights arguments at an early stage and ensuring that these remain “live” throughout the case may provide you with the possibility of an onward appeal against a Tribunal or Court decision. Watch the video in Part 3 of Module 3 where the lawyer makes the point that front-loading children’s rights arguments is important if you want to rely on them later in the process. It is very difficult to introduce new arguments on appeal from a first hearing.
You may have exhausted all domestic routes of appeal and want to consider if there are any international remedies available. Module 6 provides further guidance about this option. If so, you may find it useful to refer to the checklist of factors to consider if you are thinking about taking a case to the European Court of Human Rights, produced by the IDEA project.
Reflecting on your performance
An important aspect of any lawyer’s development is the ability to reflect critically on their performance. A children’s rights-based approach suggests that this involves eliciting feedback from your child client, ideally as the case progresses so that problematic practice can be corrected early, but certainly at the end of a case to enable you to improve your practice for future cases.
- What, in your view, is the purpose (if any) of obtaining feedback from child clients?
- Do you take time to get feedback from child client? If so, when?
- What form does this take? Is it in written (questionnaire form), verbal or online?
- Can you experiment with other forms of communication (eg text / WhatsApp) to improve response rates?
- Are the questions child-friendly and do they specifically ask about issues of concern to child clients?
- Is there an independent mechanism of obtaining feedback to enable the child to do this honestly?
- How do you act on the feedback you receive?
- If the child raises specific issues that require action, how do you communicate your responses/action to the child?
- Look at the following feedback forms produced by CAFCASS for younger children and older children. Do you think this approach is helpful? What improvements would you make (if any) to this?
- Have you ever considered using a feedback app such as the Smiley Touch developed by ‘happy or not’. What are the advantages/disadvantages of this type of tool for your practice?
After judgments in highly conflictual proceedings, guidance and support should be offered, ideally free of charge, to children and their families by specialised services.
Particular health care and appropriate social and therapeutic intervention programmes or measures for victims of neglect, violence, abuse or other crimes should be provided, ideally free of charge, and children and their caregivers should be promptly and adequately informed of the availability of such services.
Closing files but keeping the door open
When you conclude a case, it is best practice to ensure that your client understands when they should revert to you for further advice and when they can do this. To do so, they will need to understand what to expect in the coming months and years. It is not uncommon for children to be involved in further proceedings, sometimes related to the case on which you have already provided representation, but sometimes in relation to a different issue.
When a decision has not been enforced, children should be informed, possibly through their lawyer, guardian ad litem or legal representative, of available remedies either through non-judicial mechanisms or access to justice.
In addition, there will be instances in which a decision reached in relation to a child has not been fully enforced, in which case the child may need advice and further support to give full effect to the decision. In all of these scenarios, it is important that the child has the opportunity to turn to a trusted advisor and advocate for follow-up assistance.
It is also important that the child is left with a clear indication of precisely who to go to for related non-legal support
- Do you leave it to children who have been clients to request follow-up support from you? Could you consider being proactive here, for example in a case where a child has been taken into care following up at fixed intervals to check up on progress? (NB it would probably be necessary to ask the child for permission to do this at the end of their case if you decide to adopt this approach).
- Do you do anything to check that the services or professionals to whom you have directed the child are responding as they should? If you work in a legal aid practice, there are contractual requirements to monitor what happens to referrals, but not in relation to signposting.
- Are there other young people (ex. support, campaign and advocacy groups involving other young people) that your client can be referred to and perhaps become more involved with as a member?
Various Toolkits on ‘The Advocate’s Gateway’, funded and promoted by the Advocacy Training Council: www.theadvocatesgateway.org/toolkits, notably:
- The Advocate’s Gateway: PLANNING TO QUESTION A CHILD OR YOUNG PERSON, Toolkit 6 December 2015
- The Advocate’s Gateway: IDENTIFYING VULNERABILITY IN WITNESSES AND PARTIES AND MAKING, Toolkit 10 20 March 2017 adjustments
- The Advocate’s Gateway: VULNERABLE WITNESSES AND PARTIES IN THE FAMILY COURTS, TOOLKIT 13 8 NOVEMBER 2014
- The Advocate’s Gateway: ADDITIONAL FACTORS CONCERNING CHILDREN UNDER 7 (OR FUNCTIONING AT A VERY YOUNG AGE), TOOLKIT 7 DECEMBER 2015
- The Advocate’s Gateway: VULNERABLE WITNESSES AND PARTIES IN THE CIVIL COURTS, TOOLKIST 17 JULY 2015