At the end of this module you will be able to:
- Identified some strategies for explaining decisions to children and supporting them to determine what course of action to pursue next
- Considered how you might use children’s rights to support an appeal
- Appreciated 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.
The starting point for this module is that the child needs to understand the decision that has been taken in their case for a variety of reasons. The decision may have a profound impact on their life in the short, medium and longer term.
It is down to you, as their lawyer, to ensure that the decision and any subsequent action is communicated to the child in a way that they can understand. They will almost inevitably need a written copy and an explanation of the decision to refer to in their own time, to show to others. In many cases you should anticipate that they may come back to your explanation as they get older or even in adult life.
They will also need to understand the decision if they are to instruct you how to act on it - particularly if there are options for further legal challenges. They need to understand what should happen next in terms of enforcing a decision, and to know who to turn to in the future should they need further help.
Children may face decisions about receiving on-going support - whether they want help accessing services, for example. Children may need to understand what they can expect, their rights and obligations, and when to come back to you for further advice in the future for example if something goes wrong, if their situation changes. In an immigration case, for example, the child may need assistance to make a further application to extend their permission to stay.
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 and clear explanation to a child about any official decision relating to their case. The explanation should include three main elements:
- What has been decided
- The reasons given for the decision
- 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 which has suggestions for 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. Carefully managing expectations from the very outset will go some way towards preparing the child for a negative outcome in their case (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.
Belt and Braces:
the importance of both written AND Face-to-face explanations
Decisions should be explained both in written form - usually an advice letter – and in a face-to-face meeting. Face-to-face explanations enable you to ensure that the child understands what should happen next and to respond to any questions about the future. An example in an immigration case might be access to funding for higher education, and in a family case the right to see their file and what might happen when they turn 18 (for some children, of course, turning 18 is on the horizon)..
Decisions can be highly complex, so checking understanding in a face-to-face meeting will be critical to ensuring that the outcome is understood by the child. If there are options for challenging the decision, you can present these and take instructions on what your client would like to happen next – you might also need a meeting to complete legal aid forms for such a challenge. A meeting potentially provides a better sense of closure for your child client if the decision marks the end of your involvement with them. You will also be able to gauge their reaction to the decision and assess what further support might be needed. Finally, a meeting will mean that you have an opportunity to signpost or refer to other potential sources of support that can assist the child in dealing with the outcome of the decision.
Watch the following clip – which highlights the difficulty explaining complex decisions to a client and the impact that this can have:
Consider how you would prepare the child client in at least one of the following scenarios.
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.
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 following video which makes the important point that front-loading children’s rights arguments is important, if you want to rely on them later in the process - it’s very difficult to introduce new arguments on appeal from a first hearing.
<<<insert footage? If I can see this I could draft some questions for reflection.>>>
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.
Referral to other specialist services
The availability of appropriate sources of support for your child clients will vary, depending on your locality and your area of legal practice. Most legal practitioners are involved with a child only for a limited time, and may have only assisted with a small proportion of the issues they face. After their case is over, you may be able to signpost or refer to appropriate local support services to ensure that your client has the help they need for whatever comes next.
If you have one, review the list or database of organisations to which you refer or signpost clients for support with practical issues like welfare benefits advice or asylum support, healthcare including mental health, and peer support. Consider the following questions:
- How comprehensive and up to date is it?
- How much do you know about the organisations on the list?
- Do you ever refer child clients to any of these organisations?Do any of the organisations included offer specific services to children?
- Are these organisations likely to be ones that could offer one off or ongoing support to your child clients?
- Are there any steps you or your firm could take to improve the information held and to ensure you support your child clients as fully as possible?
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.
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. Evaluate your own practice by reference to the following questions:
- 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.
- You may have standard advice letters for children which you send out with minor changes. Consider amending these in the next 3 months to take account of what a child might need to know now, in the medium term, and in the long term. Consider specifically if the letter spells out when to come back to you and how to make that approach.
- Do you send out an evaluation form directly to child clients? What form does this take? Can you experiment with other forms of communication (eg text / what’s app) to improve response rates? Are the questions child-friendly and do they specifically ask about issues of concern to child clients? Is there a person who could work on improving this process in the next 2 months?
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.
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