Learning outcomes for this module
At the end of this module you will be able to:
Understand what children's rights law and guidance requires of you as a practitioner to support children’s participation in formal proceedings.
Identify some strategies and reasons for supporting children’s active participation in formal proceedings.
Identify how to ensure children’s voices are heard where their direct participation in formal hearings is inappropriate.
Children’s right to be heard as a legal obligation
This module explores the ways in which lawyers can support children to participate in formal court or tribunal proceedings before judges and other officials. The materials will illustrate some of the key benefits of involving children directly in formal proceedings. We will also look at some of the concerns and obstacles that make this difficult to achieve in practice and how to overcome these, as well as circumstances where it might be appropriate for a child’s involvement to be more indirect.
Judges should respect the right of children to be heard in all matters that affect them or at least to be heard when they are deemed to have a sufficient understanding of the matters in question. Means used for this purpose should be adapted to the child’s level of understanding and ability to communicate and take into account the circumstances of the case. Children should be consulted on the manner in which they wish to be heard.
Due weight should be given to the child’s views and opinion in accordance with his or her age and maturity.
The right to be heard is a right of the child, not a duty of the child.
A child should not be precluded from being heard solely on the basis of age. Whenever a child takes the initiative to be heard in a case that affects him or her, the judge should not, unless it is in the child’s best interests, refuse to hear the child and should listen to his or her views and opinion on matters concerning him or her in the case.
At the outset, it is important to acknowledge that in some types of proceedings, such as immigration, criminal or child protection cases, the stakes are extremely high and the proceedings are adversarial and often confrontational. Our child clients have often received advice from many different sources including family members, other young people, social and youth workers and, in the context of immigration, traffickers, and others who have a exploitative relationship with the child A children’s rights-based approach does not detract from your obligation to give clear advice and your responsibility to act in your client’s best interests at all times as well as your duty to take and act on instructions where your client is competent. This can be a difficult balance to strike.
The right to participation in decision-making is a fundamental tenet of a children’s rights-based approach to the legal process. Numerous provisions of international law, including the UN Convention on the Rights of the Child, the European Convention on Human Rights, the Council of Europe Guidelines on Child Friendly Justice and the International Association of Youth and Family Judges and Magistrates (IAYFJM) Guidelines on Children in Contact with the Justice System make explicit reference to this right.
Applying these principles and guidance to the representation of children in formal hearings means being prepared to challenge some of our presumptions around children’s vulnerabilities and incapacities. In particular, it requires recognition by legal practitioners of the following:
That the child’s perspective and experiences are likely to differ from those of adults. As such, any failure to hear the child leaves significant gaps in the evidential jigsaw required to build a case. Even where their experiences and perspectives coincide with adults, that confirmation will add evidential depth to the case.
Support and procedural safeguards need to be put in place to enable children, including those who are very young and vulnerable, to exercise their right to participate in formal hearings in a meaningful and safe way.
The child’s views and wishes must not only be heard but must actually be given ‘due weight’.
Children’s opportunities and experiences of participation in formal proceedings vary considerably according to the legal context and, indeed, according to the personnel involved in the case.
In immigration cases, some practice guidance has been issued to support and protect children during their participation in both Home Office interviews (in the case of child asylum seekers) and tribunal hearings. There is a duty on the Home Office to conduct an assessment of the best interests of any children affected by its decision and statutory guidance about how to do this. However, the default position in Article 8 cases or in asylum cases where children are dependents is often to exclude them from direct and active participation in appeal hearings. In a particular case there may be good tactical reasons for doing so. But in other cases a greater role for the child in hearings may well benefit the case as well as the child. Some legal practitioners may not even meet with children, instead taking instructions from the adults who care for them about the wishes of the children and their perspective on what is happening; this is dubious ethically and may well mean that important information never comes to light. Of course, Judges can be particularly reluctant to hear from a child who is under 14, and representatives can be concerned that the child may be cross examined in order to create discrepancies between their evidence and that of their parents or carers – and that this is potentially damaging to the case and to the child. We will address these concerns and make some practical suggestions about how to overcome them below. In family cases a guardian is often appointed to represent the interests of the child – there is no such role in immigration cases, so it is particularly important that practitioners take the time to explore what evidence a child might provide and in what format.
In all family cases, there is a statutory obligation to ascertain and consider the wishes and feelings of the child in the light of the child’s age and understanding (s.1(3) Children Act 1989). Much progress has been made in highlighting the importance of children’s views in this context, and a Family Justice Young People’s Board, composed of over 50 children and young people, advise the government and courts on how to make their processes more sensitive to children’s rights and needs.
In criminal proceedings procedural adaptations can be made to ensure that the participation of children in interviews and hearings does not exacerbate existing vulnerabilities.
And yet, despite a clear international obligation to give children an opportunity to be heard across all different types of legal proceedings, and in spite of clear domestic guidance explaining how this can be achieved, there is significant inconsistency and resistance by practitioners and judges in practice. Children continue to be denied an opportunity to be heard. The default position is generally to exclude children from direct and active participation in formal proceedings in favour of more indirect, proxy representation via written statements and welfare professionals’ reports. Even then, the extent to which the expressed views and wishes of children are conveyed varies considerably (see Module 3 for further guidance on preparing witness statements and written representations to the court from a children’s rights perspective).
"I was terrified about the idea of going to court and none of the officials told me what I should do or how I should behave. In the end I just stood there and took it all in."
Across all of these legal areas, child clients and lawyers alike have identified three important priorities when it comes to engaging children in formal hearings:
Ensuring that the child’s voice, wishes and experiences are accurately presented to the judge or other decision-maker
Ensuring that the child is appropriately prepared to appear in court and give evidence, if appropriate for them to do so
Ensuring that the child’s evidence is presented in a way that is conducive to achieving a successful outcome for the child (i.e. ‘winning’ the case).
But participation is not straight forward. There are often well-founded concerns that militate against children’s direct participation in legal proceedings:
The child may not have the capacity to give evidence because of their age, limited understanding or disability.
The child might have limited factual knowledge to support their case (for instance in complex asylum claims or sensitive family cases).
There may be genuine concerns that participating in formal proceedings will be harmful to a child, particularly if they have suffered trauma, if it may expose them to inappropriate information, or if the outcome of cross examination might bring them into conflict with or undermine their relationships with significant others.
You as their lawyer may feel that involving the child more directly in proceedings may not advance their case; in fact you might feel that it would risk damaging their case, for example if they come across as lacking credibility.
The following lawyers’ reflections highlights these concerns:
"The thing about immigration cases in particular is that they are highly strategic. What the claimant says during proceedings has very little impact on the outcome."
Notwithstanding some of the risks associated with children’s participation, all of the lawyers we have spoken to acknowledge not only their legal obligation, but the significant benefits of representing children’s voice to the decision-maker.
"While you develop a certain view of a child based on the paperwork, 99% of the time when you actually meet them that perception will radically change and you will have a better understanding of what steps need to be taken to properly conduct your case."
Achieving meaningful child participation in practice
There is an abundance of research in a family context highlighting the importance of involving the child as much as possible (if the child so desires) in formal proceedings. It leads to better understanding of the rules and the potential outcomes; it leads to better compliance (by adults and children alike) with the court’s decisions; and it leads to a greater sense by the child that they have been respected, valued and listened to in the course of reaching decisions that will impact dramatically on their life.
So what strategies can lawyers can use to support children’s meaningful and effective participation in formal proceedings? In general, there are two main ways in which the child’s wishes, experiences and feelings are presented to the court: in an indirect way, through proxy reports of adult professionals appointed to represent the views of the child following discussions with that child or through adult carers whom decision makers assume are a proxy for the child; and as a direct participant or witness in proceedings.
Guidelines 61 and 62 of the Child Friendly Justice Guidelines offers some direction on how practitioners should adapt proceedings and the environment to facilitate children’s participation either directly or indirectly:
Court sessions involving children should be adapted to the child’s pace and attention span: regular breaks should be planned and hearings should not last too long. To facilitate the participation of children to their full cognitive capacity and to support their emotional stability, disruption and distractions during court sessions should be kept to a minimum.
As far as appropriate and possible, interviewing and waiting rooms should be arranged for children in a child-friendly environment.
A child’s statements and evidence should never be presumed invalid or untrustworthy by reason only of the child’s age.
In family proceedings children’s direct participation in family proceedings is the exception rather than the norm; instead, their views and wishes are mostly presented to the court by a CAFCASS officer or social worker in the form of a report and oral evidence following a meeting with the child (usually of about 1 or 2 hours). In such cases, lawyers can take steps to ensure that such evidence is rigorous and genuinely reflective of the child’s wishes and feelings.
If you think it is appropriate (for instance, if you feel that the child’s best interests and voice are not being adequately served by adults acting on their behalf), there are two main ways in which lawyers can facilitate children’s more direct participation in proceedings:
They can apply to be joined as a party to proceedings: this is relatively rare and can only occur with the permission of the court if it is deemed to be in the best interests of the child and will not result in undue delay;
They can request to meet the judge. Judges are more willing now than ever to meet directly with children during the course of proceedings, and guidelines have been developed to facilitate this. Note, however, that such meetings cannot be used for presenting new evidence to the court; rather they are intended to facilitate the judge’s understanding of the child’s wishes and feelings to support evidence that has already been presented and cross-examined in the main proceedings. Meetings with the judge are also aimed at helping the child to feel valued in the process and to enable the judge to explain aspects of the case, the rules and the potential outcome directly to him or her.
In immigration cases, the degree of involvement of children in legal proceedings is within the control of legal practitioners to a large degree. Some lawyers would take a statement from a 5 year old child in an Article 8 appeal hearing. Other lawyers would not take statements from children who are older teenagers; we consider this to be poor practice where the proceedings concern the child in any significant respect, for example might result in the removal or deportation of an adult family member, or a decision about asylum status where they are a dependent on the application. Children can be tendered to give evidence in appeal hearings – often the Home Office Presenting Officer will agree not to question children who are younger than 14, or will agree a list of questions in the time before the hearing begins.
Reflective exercise: immigration law
You make an application to the Home Office to regularise the immigration status of Eva, relying on Article 8 ECHR. Eva lives with her daughter, son in law, and three grandchildren aged 3, 10 and 13, all British Citizens. Her daughter has some mental health problems and suffered from severe postnatal depression, so that Eva has become the main carer for the children. She has lived with the family for 8 years. The youngest child, Catherine, is very attached to Eva, sleeps in the same room, insists Eva puts her to bed and is very distressed at any prolonged separation. Clare is aged 10 and Martin aged 13.
The application is refused and you are preparing for an appeal hearing. You want to ensure the children’s evidence is before the Tribunal – you discuss this with the family, and Clare and Martin state that they are keen to tell the judge their views, as they are angry and upset that their grandmother’s application has been refused. The three adult family members are happy for them to give evidence. Dad is keen to protect Catherine from the news about their grandmother’s application and is not sure that they will understand what has happened or be able to speak in a court hearing.
To guide your reflection, consider the following points:
- Are you familiar with the relevant international and domestic law and practice guidance relating to the child’s right to be heard? What provisions might you draw on to help you decide how to proceed?
- Apply the law and guidance you have identified to this case - what do you consider to be the rights of each of the children and your duties as a lawyer?
- How do you feel you can best represent the children’s views to the Tribunal in the appeal hearing? What would you take into account when considering whether or not they should give evidence directly to the Tribunal? What are the risks and benefits of your suggested course of action?
- If you advise that any of the children should not give evidence, what mechanisms are there for presenting their wishes and feelings to the Tribunal?
- After the hearing, how would you evaluate and reflect on the children’s experience of the appeal process?
In reflecting on these points, it is useful to consider the advice of Lady Hale in the case of Re D (A Child) (Abduction: Foreign Custody Rights) [ 2006 ] UKHL 51
The case is often cited to reinforce the importance, in all immigration decisions, of taking on board as a primary consideration the best interests of any children concerned in accordance with Article 3(1) of the UNCRC. However, Lady Hale also reaffirms the importance of hearing children’s own voices to ensure that this assessment is based on an accurate understanding of their perspectives and experiences:
"...acknowledging that the best interests of the child must be a primary consideration in these cases immediately raises the question of how these are to be discovered. An important part of this is discovering the child’s own views… …the immigration authorities must be prepared at least to consider hearing directly from a child who wishes to express a view and is old enough to do so. While their interests may be the same as their parents’ this should not be taken for granted in every case...Children can sometimes surprise one." (paras 34-37)
Reflective exercise: family law
You represent Carly, who is 15 years old. She is the mother of Jack, now 5 months old. Carly was placed with foster parents on a voluntary basis when pregnant as her parents could not support her. Jack’s father, Liam, (also 15) is not involved in his life and Liam’s parents did not know about Jack’s existence until very recently. The foster placement has broken down due to Carly going out until the small hours and coming home drunk. The Local Authority has issued care proceedings with a plan for adoption. Jack is with foster carers under an Interim Care Order and Carly is living with her older sister. Liam’s parents are putting themselves forward as kinship carers for Jack, the Local Authority has not ruled out the grandparents, but still prefers removal and a placement order. Carly wants to keep Jack, saying she will take more responsibility.
You think that Carly’s best chance of maintaining a relationship with Jack is to support Liam’s parents, as there is little chance of her succeeding in getting Jack returned to her care.
- What do you say to Carly about the paternal grandparents? How much encouragement do you want to give her to try and keep Jack? How, if at all, will your approach differ to how you would approach advising an adult mother in this situation?
- What advice might you want to give Carly about her placement with her sister? This is informal and there is no local authority involvement. Carly wants to stay there but her sister has said she can’t afford to keep her.
- What are your priorities in terms of advice: the care proceedings or getting some support and a suitable placement for Carly? Do you see these as separate issues?
- Carly is both a child and a parent. In which role do you primarily see her? Do the court and other parties see her as a child? How can you make sure that her needs as a child are not lost in these proceedings?
- What do you say to Carly about the approach the court is likely to take to listening to her views? How will you present Carly’s wishes and feelings to the Court?
Preparing the child to appear in court
In footage in Module 1 and 2 some of the young people talked about having limited preparation for their appearance in court - their lawyers neglected to provide even the most basic information about what time to turn up, what to wear, how and when to stand, and what the court might look like.
So how do you actually go about preparing a child to give evidence in court or other formal proceedings? The Guidelines on Child Friendly Justice offer some pointers in this regard.
Before proceedings begin, children should be familiarised with the layout of the court or other facilities and the roles and identities of the officials involved.
When children are heard or interviewed in judicial and non-judicial proceedings and during other interventions, judges and other professionals should interact with them with respect and sensitivity.
Children should be allowed to be accompanied by their parents or, where appropriate, an adult of their choice, unless a reasoned decision has been made to the contrary in respect of that person.
The lawyers in the following film talk about the value of enabling the child to participate directly in formal proceedings, not just in terms of fulfilling their obligations in respect of children’s rights, but in a more strategic sense, to enable them to make the most persuasive and powerful case on behalf of their client:
"It is important to tell children what will happen but also what will not happen in court. Children will often imagine that court proceedings will be the same as what they see on television - much more formal and dramatic than real life."
Mital Raithatha, Rosalind Compton and Jo-Anne Lomax
Key points on preparing the child to appear in court
Show child a photo of the court or some images online so that they have an accurate impression of the physical layout.
Remember to give the child practical information (verbally and in writing) – where the court is, what time to arrive, what to wear, where to find you or the person who will represent them, to allow time for transport delays, what to do if they are delayed, and finally any steps they can take to prepare for the hearing, for example reading through their statement or attending a conference with Counsel.
You might want to suggest that the child attends the tribunal or court before their hearing (if possible in your area of law) to observe a case and just get a sense of how the procedure works – they can do this with a friend or supportive adult, or you can accompany them if you have funding to do so. Remember to brief them to switch off their phone and not to disturb the hearing. You can send them with a letter to show to the reception desk explaining why they are there and asking to be directed to a hearing room with substantive hearings listed. Some lawyers are not convinced this is a good idea, because the case that is observed might go badly, or the child might decide that they need to emulate the answers given by a witness and this might corrupt their own evidence, so approach this with caution.
Brief the child in general terms about answering questions in the hearing if they are giving oral evidence – how to deal with questions they do not understand or where they can’t remember the answer; likely or agreed areas of questioning; who to look at when answering and similar.
Remember to ensure you have informed them about their rights during the hearing and of your role, for example your commitment to represent their views to the judge, and their right to ask for a break if they want one.
Make sure they understand how and when the decision of the court or tribunal will be delivered
- 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 adjustments, Toolkit 10 20 March 2017
- 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, Toolkit 17 JULY 2015
- Syd Bolton, Kalvir Kaur, Shu Shin Luh, Jackie Peirce and Colin Yeo, Syd Bolton, Kalvir Kaur, Shu Shin Luh, Jackie Peirce and Colin Yeo, Working with refugee children Current issues in best practice, ILPA (May2011)
- CAFCASS guidance and factsheets for young people about public and private proceedings
- Tribunals Judiciary, Practice Direction First Tier and Upper Tribunal ‘Child, Vulnerable adult and sensitive witnesses’, 30th October 2008 (contained in Annex 2).
- Tribunals Judiciary, Joint Presidential Guidance Note No 2 of 2010, ‘Child, vulnerable adult and sensitive appellant guidance’
- SRA 2016 Providing services to people who are vulnerable And Ministry of Justice (2011) ‘Achieving Best Evidence in Criminal Proceedings Guidance on interviewing victims and witnesses, and guidance on using special measure’ CPS, Dept for Education, Dept for Health and Welsh Assembly Government
- Arthur, R. Giving effect to young people’s right to participate effectively in criminal proceedings(2016) Child and Family Law Quarterly 28, 3, 223-238
- The UN Committee on the Rights of the Child has also expressed concern that many children feel they are not listened to by judges and other professionals working with children in conflict with the law: United Nations Committee on the Rights of the Child, Concluding observations on the fifth periodic report of the United Kingdom of Great Britain and Northern Ireland (UNCRC, 2016), at para 29.