Family courts should become more open to hearing the views of children, the chief judge Sir James Munby has said.
In a judgment handed down last week, Munby said there had been a “sea-change” in attitudes towards hearing evidence from children in court, but approaches still needed to be changed.
Munby was commenting in an appeal case regarding the unlawful removal of three children from Hungary to England by their mother. The original case decided that the children should return to Hungary as they had been unlawfully moved to England without the father’s consent.
The eldest child, 14, contested that her voice had not been heard and her concerns were not appropriately put across. It was also argued by representatives that her younger sibling’s views, and the strength of them, had not adequately been considered.
Full say
In an earlier judgment, the judge who allowed the appeal said he hoped the eldest child, referred to as L, “will feel that she has had her full say in the process…she needs to be a full participating party with representation”.
Representatives for the girl, referred to as L, argued that she was denied her right to participate in a decision which fundamentally affected her future, and the Deputy Judge in the original judgment had failed to meet with the girl.
L said she was happy and integrated in her life in England, and she had changed from a “quiet timid girl” when living in Hungary, to a “happy girl” in her English school. Lawyers representing her said these factors should play a role in the decision to send the children back to Hungary, at least until the conclusion of another set of proceedings happening there.
The appeal about the overall ruling was unsuccessful as Munby could see “no error of fact” in the original judgment. The judge who heard the original case had taken account all relevant factors in his judgment, Munby said.
However, in his decision, Munby looked back at the issue of children giving evidence, and analysed case law such as Re W in 2010, where the supreme court said there was no longer a presumption against children giving evidence in family proceedings.
Further changes
Munby said “proper adherence” to that judgment would see increasing numbers of children giving evidence in family proceedings.
“It is apparent that in relation to all these matters there has been a sea-change in attitudes over the last decade and more, even if on occasion practitioners and the courts have been and still are too slow to recognise the need for change or to acknowledge the pace of change,” Munby said.
He added: “It is plain that the further changes in our approach to these matters which are now widely acknowledged require to be implemented, and sooner rather than later.”
“Moreover, and I wish to emphasise this, the process of change continues apace.”
The Family Procedure Rules Committee is currently looking at the recommendations of the Children and Vulnerable Witnesses Working Group, which recently considered the topic of children giving evidence in family proceedings, Munby said.
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In the end L’s appeal was dismissed and she was not joined as a party. She (aged 15) and her sister and brother were required to return to Hungary. The mother’s appeal was dismissed as well. The decision, despite Munby P’s comments shows how limited the changes to listening to children are, in reality.
Realistically speaking, this strikes me as somewhat of a pointless exercise. As David (above) points out, the children were made to return to Hungary, irrespective of their wishes. So, in this instance, listening to the girl in question amounted to little more than a token gesture.
It strikes me that our country has a VERY confused attitude towards children and their rights – even in respect of legislature. Though the “Children Act” argues that the welfare of children is of paramount importance, and that when children are placed at risk, their needs are to be considered first and foremost it seems to me that, in practice, children and their needs and wishes remain very much overlooked.
My point is that our country still appears to practice a “Victorian” attitude in which “children are to be seen and not heard”. We act as though they are not individuals in their own right, but rather are somehow the “possessions” of their parents. This leads to innumerable VERY difficult situations in which the voices of adults (e.g. parents) are heard, but not the voices of children. An example being “tug of love” children (which is what you might call the kids in this case), where two alienated and estranged parents may fight over their children, arguing about issues of residence and suchlike. Where, in cases like this, do the children’s voices come into it? Children are NOT parents’ “belongings”, to be fought over, used by one parent as “weapons” against another, dictated to, and forced to abide by whatever dictats the adults in their lives decide upon.
Instead, ought we not to consider the fact that when parents – and other adults – make decisions that affect children, it is these children who must live with the consequences of such decisions. How just, fair, ethical and moral is it to force children to face the impact of decisions – many of which have significant consequences – in which they have NO say? We cannot, in this day and age, continue to argue that little children have no awareness or understanding of what goes on around them. Vast bodies of research are increasingly demonstrating that this is anything but the case. Even in their tenderest years, children are highly aware of their surroundings – and the nature of their surroundings – perhaps long before they have the verbal ability to fully articulate this awareness. Hence the importance of John Bowlby’s “Attachment Theory”, which clearly shows that even tiny infants have the ability to evaluate the nature of the bond that they have with their parents, and respond to it accordingly. Even tiny babies note intuitively and instinctively how responsive and caring their parents are (or are not).
With the above being so, then it makes sense to accept that children ought to be afforded some say in major decisions that affect them. For this very reason, changes are clearly needed that will encourage and enable more children to give evidence in family court proceedings. Otherwise, the term “Family Court” becomes a misleading fallacy. How is it truly a “FAMILY Court” if it only admits the evidence of adults (parents, carers, professionals), yet NOT children? Surely a FAMILY is the WHOLE UNIT – that is, the TOTAL number of people it comprises? So, if we are talking just a married couple, family means that couple; but if we are talking married couple with three kids, then family means the couple AND the three kids.
Whenever decisions are being made about Family Court Proceedings that will impact upon children within a family, surely it is only right that children are afforded an opportunity to have their say? After all, if we are to act with EMPATHY, then surely this implies that we empathize with what such children may be feeling, as well as what their parents, or other adults, may be feeling. I am sincerely hoping that we have moved beyond outdated beliefs that place children as the “possessions” of their adult caregivers. Instead, we ought to accept that children – whilst at a different stage of development to adults – still have feelings, thoughts and opinions. It is important that they be assisted in such cases as the one described to express them, and to have them afforded full consideration.
I think we have to be careful about what we suggest children are capable of. While we should always take their views in to account (and I myself have had a young person attend court and speak with the judge during care proceedings and genuinely believe this is important) we have to be careful that this process does not set them up for an unrealistic expectation. Children are often not in a position to make safe choices for themselves so listening to their view, even in a hearing, is not the same as giving them what they want. Many of the children we work with would choose to be at home in their family unit, even though it is unsafe for them to be there.