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Module 4

Presenting the child’s voice
in formal hearings

 

Learning outcomes

At the end of this module you will be able to:

  • Recognise the key concerns and challenges for lawyers when representing children in formal court or tribunal proceedings 
  • 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 the circumstances in which children’s direct participation in proceedings is inappropriate

Part 1

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. It illustrates some of the key benefits of involving children directly in formal proceedings, whilst also identifying some of the concerns and obstacles that make this difficult to achieve in practice. It offers some suggestions as to how these concerns can be overcome in a way that supports rather than undermines children’s welfare. 

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.

Article 12 of the UN Convention on the Rights of the Child
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, the views of the child being given due weight in accordance with the age and maturity of the child.

For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

This provision is explained in more depth by the Committee on the Rights of the Child, the body responsible for monitoring implementation of the Convention in the signatory states:

General Comment No. 12
The Right to be Heard (1 July 2009) CRC/C/GC/12 “Participation as an ongoing process based on respect, in which dialogue occurs between adults and children in matters affecting children, whereby children can contribute to relevant outcomes”

The Council of Europe Guidelines on Child Friendly Justice elaborate on what is required to support children’s right to be heard in formal legal proceedings in Guidelines 44-49:

Guideline 44 of the Child Friendly Justice Guidelines
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.

Guideline 45 of the Child Friendly Justice Guidelines
Due weight should be given to the child’s views and opinion in accordance with his or her age and maturity.

Guideline 46 of the Child Friendly Justice Guidelines
The right to be heard is a right of the child, not a duty of the child.

Guideline 47 of the Child Friendly Justice Guidelines
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.

Applying these principles and guidance to the representation of children in formal hearings 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
  • 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’  
  • Giving effect to children’s right to participation means being prepared to relinquish some power and control as adults and to challenge some of our presumptions around children’s vulnerabilities and incapacities  

Children’s opportunities and experiences of participation in legal proceedings vary considerably according to the legal context and, indeed, according to the personnel involved in the case.

  • In criminal justice proceedings, children can appear in court either as defendants or as witnesses and detailed practice guidance has been drawn up to assist lawyers and judges alike so that children are protected and supported in the process.  
  • In family and community care proceedings, both the Children Act 1989  and the Children Act 2004  state that decisions must be informed by the wishes and feelings of the child. Guidelines have been issued to assist lawyers in ensuring these views are presented to the court which are, in turn, informed by very clear direction from the UK Supreme Court.   
  • In immigration proceedings, efforts to encourage children’s participation in proceedings are less developed. Some practice guidance has been issued, but it is more focused on protecting the welfare of children as vulnerable claimants rather than facilitating their participation in the decision-making process. 

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.
— Katie

Child clients and lawyers alike have identified three important priorities when it comes to engaging children in formal justice proceedings: 

  • 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
  • Ensuring that the child is presented in a way that is conducive to achieving a successful outcome for the child (i.e. ‘winning’ the case)

But this is not a straight forward process. There are often well-founded concerns relating to children’s direct participation in legal proceedings. For instance, the child may not have the capacity to give evidence because of their age, limited understanding or disability. They might have limited factual knowledge to support their case (for instance in asylum claims). There may be genuine concerns that participating in formal proceedings will be harmful to a child, particularly if they have suffered trauma of if it may expose them to inappropriate information or behaviour (for example in care proceedings involving claims of parental or sibling abuse).  And on a more strategic level, 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.
— Sarah Woodhouse

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.
— Jo-Anne Lomax

The remainder of this module will consider some of the strategies that lawyers can use to respond to support children’s meaningful and effective participation in formal proceedings. 

Part 2

Achieving meaningful child participation in practice

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; 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: 

Guideline 61 of the Child Friendly Justice Guidelines
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.

Guideline 62 of the Child Friendly Justice Guidelines
As far as appropriate and possible, interviewing and waiting rooms should be arranged for children in a child-friendly environment.

Guideline 73 of the Child Friendly Justice Guidelines
This Guideline also cautions against determining the child’s capacity to give evidence, or drawing conclusions on the reliability of that evidence, solely on the basis of the child’s age.

Guideline 73 of the Child Friendly Justice Guidelines
A child’s statements and evidence should never be presumed invalid or untrustworthy by reason only of the child’s age.

 
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Reflective exercise

Choose a scenario closest to your own area of practice  and reflect on whether and how you would support the child to participate in proceedings and what steps you would take to argue that they should be heard by the Court or Tribunal.

Family law scenario

In this case you act for Amina, who is 14 , one of four siblings who have moved to the UK as asylum seekers with their parents.

Upon entering this country Amina disclosed severe, ongoing and ritualistic physical abuse by her parents. She has been placed in foster care for her safety, but finds the legal process, the change of culture from her home country and the separation from her parents very difficult.

She realises that the abuse of her is wrong but she loves her parents and wants to return home, she cannot understand why the court process prevents this.

She believes that as a result of making this disclosure she has dishonoured her parents and she does not understand what her rights are in terms of voicing her views, or how to give effect to them.

To guide your reflection, consider the following points:

  • Are you familiar with the relevant international and domestic law and practice guidance relating to Amina’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 the child and your duties as her lawyer? 
  • In practical terms, how do you go about reconciling Amina’s stated wishes and feelings with the need to protect her welfare in the course of the proceedings? 
  • How do you feel you can best represent Amina’s views to the decision-makers in the context of the care proceedings? What are the risks and benefits of your suggested course of action?
  • After the hearing, how would you evaluate and reflect on Amina’s experience of care proceedings?  What would you be keen to ask her about? 
Click here for more guidance

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 at para [57]: There is now 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. Those who do listen to children understand that they often have a point of view which is quite distinct from that of the person looking after them. They are quite capable of being moral actors in their own right. Just as the adults may have to do what the court decides whether they like it or not, so may the child. But that is no more a reason for failing to hear what the child has to say than it is for refusing to hear the parents' views.

Immigration law scenario

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 four grandchildren aged 3, 7, 10 and 13, all British Citizens. Her daughter has some mental health problems and suffered from severe post natal 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. Thomas, aged 7, is dyslexic. 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 are heard – 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 and Thomas 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?
Click here for more guidance

In reflecting on these points, it is useful to consider the advice of Lady Hale in the seminal case of ZH Tanzania ZH (Tanzania) (FC) (Appellant) v Secretary of State for the Home Department (Respondent) [2011] UKSC 4.

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)
Part 3

Preparing the child to appear in court

In footage earlier in this module and in Module 1 and in Module 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 of preparation by way of 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. 

Guideline 55 of the Child Friendly Justice Guidelines
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.

Guideline 57 of the Child Friendly Justice Guidelines
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.

Guideline 58 of the Child Friendly Justice Guidelines
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: 

The type of proceedings probably affects how useful and valuable it is to have a child participate directly. In some cases the force of a child’s own voice in court can make a real difference to the outcome.
— Lucy Yeatman and Sarah Woodhouse

In the following, the lawyers offer some pointers on the practical steps that can be taken to prepare children to appear in court. Preparations range from basic information about the time, nature and potential duration of proceedings, to how to conduct themselves during the proceedings

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 Crompton and Jo-Anne Lomax
 
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Key points to take from this exercise

  1. Show child a photo of the court or some images online so that they have an accurate impression of the physical layout.
     
  2. Remember to give the child practical information – 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, any steps they can take to prepare for the hearing, for example reading through their statement or attending a conference with Counsel.
     
  3. Suggest a 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.
     
  4. Brief the child 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.
     
  5. 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.
     
  6. Make sure they understand how and when the decision of the Court or Tribunal will be delivered
 

Useful Resources

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