Private Children Law – Voice of the Child

Hello. Welcome, everybody. My name stuff to Mahmoud. And I'm pleased to welcome you to today's bite size session. We're going to be taking you through private Children law on the voice off the child. This is, as of September 2000 and 17 through data laws. Now what we're going to be looking at here is really the various options that are available to ensure that within Children opposite is particularly private Children or proceedings. The voice of the child is, of course, brought. Of course. Fall on. This is where? How do we ensure that? Do we look at separate, absent ation? Do look at the chart giving evidence. Do look a child meeting the judge, for example, do we get the report from calf Cason door social workers? So I'll be taking you through some of those aspects on Also be looking at the cap programmed Child Arrangements program specifically to see how to supplies and likes a separate representation on also about Children giving evidence so less than first and foremost put this into context insofar as the child arrangements problem is concerned. So let's say you've got a child who say, out of 12 years old on, say, the Charles, living with mother on mother seeks to make Russian makes an application seeking permission to permanently relocate to, say, Italy, for example, on she wishes to take her 12 year old with her mother. Father lives in England, and he opposes the application s. So that's where the mother makes an application for specific issue order. The court finds that of course the application is contested and they would then need to have the voice of a child considered in that regard, not a child Arrangements program, which came into effect on the 22nd of April 2014 specifically is really put together to deal with disputes in private Children or cases across England on Wales on that paragraph. 1.1 in particular, provides that this applies where there is a dispute between separate parents, in particular under families concerning arrangements relating to Children. So within these procedures, we need to ensure that the voice of the child is brought to the court's attention and paragraph 4.5 provides that the court may want to know the chance views now. This could be achieved in a number of ways. One is by CAFTA's officer providing a report which sets out the child's which you have feelings. So taking that a starting point, that's where saying in my example, the 12 year old is one that we're referring to. Mother, once he's permanently relocate to Italy, and fathers objecting Father lesser seem husband responsibility as, of course, does mother. Now, because of the nature of the dispute, this is where the court may direct a report on the Section seven Off the Children Act for Calf CASS Officer. In that capacity, as a family court reported, prepare a report. Or sometimes, if there's been set in local authority involvement by substantial local authority involvement during may, well be, let's say, for the local authority to fact, do the Section seven report and you'll be aware that within the Section seven report, there will need to be consideration off the welfare checklist on the Section one subsection three of the Children act. So looking at, for example, the ascertainable wishes and feelings of the child considered in light of the age and understanding the capability of parties meeting the child's emotional needs, religious needs, educational needs. Looking at the state called, for example, it's all of those factors will be weighed up. The other way in which the child's voice is brought to the court's attention is through the child being encouraged to try to let the court, and that encouragement could sometimes come firmly. Parents. That's the second option. On the other. Is the child actually being made a party to proceedings, which has come unto in just a moment on the force method, which I look at later, is where the child meets with the judge in the course for the guidance for judges meeting Children subject to family proceedings. This was regardless of April 2000 and 10 So let's look at a position with separate representation of Children. See what the position is there on. This is where BIPAC distractions 16 a, which accompanies the family procedures. Part 16 comes into effect on that. This is where if you do have, of course, Children, as in this case who are the subject of proceedings. Then there is the litigation friend, who is there to competently conduct perceives on behalf the child. They must have no interest in the proceedings at first to that child, and all steps must be taken to cornices what he's regarded to be in the best interests of the child. Now, this is where you may find that in order to bring the voice of the child to the courts, four particularly for older Children, but not always. It may be that one needs to look at the possibility of a separate representation, and this is where we're then looking at your point or two Children's guardian on the roof. 16.4 to find with C. Djourou's now 16.4, allows a child to be joined as a party to procedures and therefore to be made as a party to proceedings on the essentials. A set out with in room 16.4 is that it would need to be appropriate to the court that it is in fact, the child's best interests for the child to be made. A party on This is where the core can appoint an office of the service effectively through the family court Reporter officials Lester If if she if free consent, or if some other person consents in all circumstances, to then be the guardian of the child would also to take part in the proceedings on behalf of the child and in order could then be made by the court. Order could be made by first year courts on motion or by way of an application to buy any of the parties, tips, scenes or indeed even proposed guardian in the circumstances that could be done. And unless otherwise, a personal pointed in the circumstances shall be treated as a person to which documents could then be served on or notice to be given off proceedings in the circumstances. Now, how often should be looking at Children think separately represented what this is where move 16.4 is particularly helpful in part, particularly paragraph 7.1 off the 16.4 off the FPR, because that provides that making the child proceedings should not be done very often, in fact should only occur in a minority of cases. Andi, before the court decides to join the child as a party, consideration should be given us toe whether in fact, there is any alternative route to ensure that the voice of a charter boat, of course attention such as, for example, asking an officer off service or watch from the proceedings officer to carry out further work or perhaps even referred to Children's services. For example, you can see the court's not necessarily going to be requiring separate representation unless it's felt necessary in the circumstances. On what, what type of situations, then will the court decide that there should be separate absent ation? Therefore, charge. We joined what This is set up within paragraph 7.2 on If I run through these with your cedar type of situations were by the court made than certainly called under root of separate representation that regarding firstly, little eight were in office of the service, while Trump seems after has notified the court name opinion. The charge. We made a party, so sometimes you find that it will actually call very much from from. There must be whether or not the charge have joined him out. Secondly, little bees, where the child has standpoint, which is inconsistent with the incapable being represented by any other party. So this is where side of mother and father both have a view of. Mother wants to take the child to Italy and example of been using Father is opposing. The child who's 12 wishes to have a voice and this is where they make the garden made them feel that they should be appointed with a view, should be given separate presentation so as to enable them to have a standpoint. Put the court independent of that of the mother onder father Little sees where there is an intractable dispute over residence or contact as it used record. Now charred arrangements Onda Clearing Way or contact us seized or whether is irrational but implacable hostility to contact. So those tough situations you may find there is need for separate representation. Little D's refuse and which is a child, cannot be adequately met by reports of court on ease where Naldo charges opposing a proposed course of action. So let's say the 12 year old is opposing the move to Italy, and this is where it may be necessary to then look at supper representation for them to enable and expressing put forward their views little efforts where they are complex medical or mental health issues. To be determined on that, that there's a need for to enable Children to be separately represented and G is where they are intentional complications at side child abduction, for example, it may be ness safe, too, for discussions with overseas authorities, so that may also require sector representation. Little hastens where there is. There are serious allegations of physical, sexual or other abuse relation to a child, while against of domestic abuse not capable of being result with the help of enough served service. Sort of our front up scenes, Officer IE is where the person is concerned. More than one child on the welfare of the Children is in conflict, or one child is particularly disadvantaged so that sometimes you may find where say, you've got AIDS. A group of Children under is a conflict between what's right for one and what's right for the other. And finally, little J's where there is a contested issue about scientific testing, for example, so you can see here there are those different situations a through T J, which may want London E for separate absent ation. A pack of 7.3 does say that separate representation can potentially result in delay, of course, in making decisions of violence in the proceedings for the Children for a child, and therefore it's very important to bear that in mind when looking to see whether or not to enable at the instruction in the first place on dumb. When a child is made, a party in the garden is be appointed in consideration. Should be given to appointed an officer of the service Indoor circumstances. On that, the court may decide whether to join a child as a party in these circumstances and whether education, in fact transferred to another court or otherwise. That's one of the issues surrounding in a blink that the voice of a child to be brought to the courts for in that regard. Now one of the other issues to bear in mind in this juncture is that which relates to whether or not in fact the child should their voice should be heard by way of enabling them too much to give evidence. And this is where sometimes the child may in fact be invited and required to give evidence in Children proceedings. Now, one of the earlier case on this was the case of Ln against Medway council this case in the year 2007 but this was attending. This was a case involving a 10 year old who was directed to give evidence against the alleged perpetrator. But that legend appeal and in fact, 1/4 appeal took the view that the standing starting point when it comes to whether or not charge him begin the evidence and Children proceedings should be that there is really a presumption that they shouldn't be on. But this could be seen as oppressive, damaging and destructive for the child to attend court to give evidence under starting point should be that it's, in fact, undesirable. That child should have to give evidence in care proceedings. But then, since then there has been quite a development in this field on. In fact, a leading case now on whether or not Children should in fact be giving evidence or not is, in fact, they re doubly case off that 2010. This was the Supreme Court decision. Not this involved a 14 year old whereby the father, in fact, wish to trust. Examined at the 14 year old a finding of fact hearing on that the court refused initially that a 14 year old had made serious sexual allegations against a stepfather who was the alleged perpetrator here on the matter was listed for finding of fact hearing the court did rely upon a Medway decision to say that it was damaging, oppressive, on destructive for charter. Your evidence and therefore starting point should be that shouldn't unless there's very good reason why they should. But in fact, on appeals at the court did it allowed a charter give evidence. They said that the evidence of the fact finding would be confined to identify which the child had had given to the police Under the achieving best evidence, guidance on the Supreme Court said that it would not be European courts like human compliant. You've been caught off human rights compliant to not require a tragic of evidence and Kip ceilings. The presumption off against the chart giving evidence could not be reconciled with the European Court of Human Rights. In fact, it was a question of balancing. On the one hand, should three evidence that was being sort by the child again governance did it go towards the Rue tissue. And if it did, that is a question of balancing. On the one hand, the writer, a child to give evidence if they wish to kind under proper safeguards, could be put into place to ensure that arrested and was minimized as far as giving evidence do behind a screen, for example, through a video link or through written questions, for example, on balancing that against the right of the alleged perpetrator, to be up to have the evidence tested by way of effectively cross examining the child if needs be such a question, really balancing at the risk in that regard and one of the key things therefore the court did emphasize here is it would be wrong to raise a presumption against give them giving evidence in that regard. It was effectively question of them wangle the factors on that. This was then make very clear also in the later case off In the matter of hate charges 2000 on 11 case We're by again. This was a 40 year old who alleged that in this case, the father had hit the child physically. On that. The father wanted to cross examine a child on the court, did apply to guidance in Medway cancel but decided to decide to refuse to allow traffic of evidence. But I'm appeal. The father was able to argue that really redouble decay should have been followed in terms off allowing the child to give evidence into second stances on it didn't say that there is a presumption to allow Children to give evidence and steady. It's a question of balancing between the demands of justice on the one had by allowing the father in this case to have justice by right, your fair trial and cross examining. But I'm the same talking on the other side and showing the child's welfare is respected on here on the facts. In fact, that had been done that had been. Cleary's has given us to what a child should not be called to give live evidence and therefore on that basis it was not permitted. Now the other cases didn't agree. Be case this is a more late one in 2014. Very much really emphasizes the re doubly approach insofar as the guidance to begin us to whether Children should or should not be giving evidence in that Children Proceedings on damps, one of the key situations here to court emphasized that was in deciding whether a charge should give evidence, not his. Firstly, you look at an age in the quality of the evidence on to see whether it's possible to gain a fair and accurate determination by calling a child, and secondly, is whether there is a wrister chart from the process of actually giving evidence. It's question very much off. Wind it up on again. Redouble you very much. Requires a balancing exercise to be wait up in that regard. Now wonder more recent cases on Children. Give evidence is the case of Re F Children. This 2016 case and this the leading judgments handed down by the president off the family division on His Lordship did say, particularly at Paragraphs 87 that terms the views of the child is brought can be brought, of course, attendance in various ways, of course. One by way off the cuff case. Officer Dune the Reporters is a family court, reported a Section seven report at Children being in for encouraged to try to let the court, for example, the child being joined as a party. I do 1 16.4 as we mentioned. On the other method, of course, is the child giving evidence, and the court did say here Paragraph 44 that, of course it is possible for a judge also to meet with the child on it so far is the child giving evidence the child wouldn't necessarily need to be joined as a party to proceedings in order to enable that to work irks then, so far as the meeting between the judge and a child. This is, of course, another route through which the voice of a child is brought to. The court's attention on the court did say that a meeting between the judge and the child is an opportunity for the judge to hear what child may wish to say and for a child to hear what a judge says insofar explained the nature of the process. It's not for the purpose of gathering evidence on a judge have not. Therefore, probe will see to test whatever it is that the child wishes to say. If the child wishes the volunteer information may be relevant, it under should report back to parties and determine how the evidence should be addressed. So one of the key things therefore day that was raised in that case is the position for landing at the meeting with data between the judge and the Children child, and just to really go through this in more detail. This is where we have got to specific guidance on that. This is the guidance for judges meeting. Children are subject to family proceedings that it's the guidances of April 2000 on telling these guidance. These guidelines were put together by the Family Justice Council under approved by the president. Off the family division on a personal distant was to encourage judges to enable Children feel more involved and connected with proceedings in which decisions were being made as to their to their welfare. And the guidelines were expected than to enable judges to feel more comfortable and confident in having meetings with Children in appropriate cases. On day. One of the things the guidelines do specifies that the judges and touch to expect a lawyer for the child and order calf case officer to advise with child wishes to meet the judge. I want to explain, from a child's perspective the purpose of the meeting under tow, identify the purpose of the meeting in that regard, and the other party should of course, be in a position to be able to make appropriate representation accordingly. Deciding with were not a meeting should take place or not enough circumstances. The age of a child is relevant but not determinative. Some Children evenness younger, seven or even younger may have a good understanding, and their views may be able to be expressed in this regard. Now if the judge does wish to meet with the child. If the child should have said wishes to meet with a judge, then that Kourtney Seaside had that meeting would take place. And if the judge doesn't decide to meet the child, then it's much of discretion as to have a judge deals with a purpose and proposed content of the meeting and I want stage. But it's very important to ensure that the meeting is such that it is appropriately minute it, so it should make be made very clear as to who attends to meeting. A judge should never see a child alone to guidance stipulates, and also a minute should be taken and that men it should be done approved by the judge and communicated to the other parties, and I wanted a key provision in this guidance is this. It provides the fact that it cannot be stressed that the purpose of immediate not for the judge to gather evidence, as I mentioned previously, must responsibility of calf cast US responsibility of the social because that's responsibility of the family court reporter, whether it's 3 16.4 or otherwise, the purpose off the meeting is to enable the child to gain some understanding or what's going on, really, and to feel reassured that the judge has actually understood themselves the whole purpose off the meeting. So you can see there for disc guidance is very helpful and very important so far as the enabling the court and to make a decision as to chance future well being in that regard. So therefore, just to summarize it can see that there's number of ways in which the voice on child has brought, of course, attention. This, of course, the Family Court reported in the Section seven decide the child being encouraged to write a letter. There's the child being gun joined as a party. Are you 16.4? There's a child giving evidence, amended the judge hatching meeting with a child under the age 40,010 guidance. Okay, so I hope that's been held for just two tram. Put together some of the key issues surrounding divorce of a child gonna thank you very much for listening. I hope that's been useful. I speak to you next time. Thanks very much. Bye for now.