Jersey & Guernsey Law Review – February 2009

Separate Representation of Children in English Public Law—The Challenges

The Children Act 1989 purports to provide a comprehensive framework in England and Wales for ascertaining and articulating the wishes and feelings of children in whose lives the State intervenes to ensure their welfare. An examination of whether the Act is in fact achieving this aim when measured against child welfare prerogatives and cardinal rights demonstrates potential flaws in the statutory framework and highlights valuable lessons for the jurisdictions of the Channel Islands as they continue to enhance their public law legislation.

“The world should listen then—as I am listening now” Shelley

Comparisons

1       The law governing the separate representation of children in public law Children Act proceedings in England and Wales is easy to state in terms of bare statutory duty.

2       When child protection concerns arise, local authorities investigating and dealing with such concerns before entering the court arena are subject to a range of statutory duties under Part III of the Children Act 1989, designed to amplify the voice of the child. Before determining what services to provide a child in need, [1] before providing accommodation to a child, [2] before making any decision in respect of a child looked after by the local authority [3] and when investigating concerns pursuant to s 47 of the 1989 Act, [4] the local authority must, so far as is reasonably practicable and consistent with the child’s welfare ascertain the child’s wishes and feelings and give due consideration (having regard to his or her age and understanding) to such wishes and feelings. The Children (Jersey) Act 2002 mirrors some, but not all, of these duties. The Children (Guernsey and Alderney) Law 2008 makes provision for regulations for the consultation of children in care. [5] None of the aforementioned jurisdictions provide for the separate representation of children’s interests at this stage of the child protection process.

3       When proceedings are necessary, the Children Act 1989, s 1(3)(a), like the Children (Jersey) Law 2002, art 2(3)(a) and the Children (Guernsey and Alderney) Law 2008, s 4(2)(c), states that when considering whether to make a public law order the court shall within those proceedings have regard in particular to the ascertainable wishes and feelings of the child concerned (considered in light of his age and understanding [6]). The requirement to have regard to the wishes and feelings of the child concerned is reflected in the Adoption and Children Act 2002, s 1(4)(a) and the Child Abduction and Custody Act 1985, Schedule 1, art 13. [7] The Adoption (Jersey) Law 1961 (as amended), [8] the Jersey Adoption Rules 1962 [9] and the Child Abduction and Custody (Jersey) Law 2005 [10] each contain provisions designed to ensure that the wishes and feelings of the child are ascertained within those respective contexts.

4       Within the English and Welsh jurisdiction, the Children Act 1989, s 41 provides that in proceedings for a public law order the court shall appoint a Children’s Guardian for the child unless satisfied that it is not necessary to do so in order to safeguard his interests. Once appointed, the role of the Children’s Guardian, in addition to a specific duty to establish the child’s wishes and feelings and represent them to the Court, [11], extends to placing anything before the Court which the Guardian considers material to the best interests of the child. [12] A solicitor is instructed by the Children’s Guardian [13] and where the child is too young to give instructions, the views of the Children’s Guardian are the instructions on which the solicitor must act.[14] Where a child wishes to instruct a solicitor direct, and he is able, having regard to his understanding, to do so, then the solicitor must act upon the instructions of the child (whereupon the Children’s Guardian may obtain alternative representation and must perform his or her duties and take such part in the proceedings as the Court may direct). [15] Guidance is given by the Courts as to whether a child has sufficient understanding to give instructions directly. [16] By contrast, the Children (Jersey) Law 2002, art  75 provides a general discretion to direct separate representation for the child where the same is desirable in that child’s interests. The Children (Guernsey and Alderney) Law 2008 does not provide for the separate representation of children.

5       Where a child is made the subject of a care order at the conclusion of proceedings, the local authority remains under a duty, so far as is reasonably practicable, to ascertain the wishes and feelings of the child regarding any matter to be decided. [17] In addition, the regulations governing the review of the child’s position in care require that the child has explained what steps he or she might take under the Children Act 1989, [18] that the local authority seek and take account of the views of the child so far as is reasonably practicable including any particular matter that is to be considered in the course of a review [19] and seek so far as is practicable to involve the child in the review. [20] Following the implementation of the Adoption and Children Act 2002, an Independent Reviewing Officer should be appointed by the Local Authority to ensure that the child’s views are understood and taken into account within the review process. [21] The Children (Jersey) Law 2002 provides for ongoing advice and assistance to the age of 21 for children who have been looked after or accommodated. [22] Once again, within their respective statutory regimes, none of the aforementioned jurisdictions provide for the separate representation of children at this latter stage of the child protection process.

6       The Children Act 1989 and associated legislation thus ensures, in theory, the consistent consideration of the child’s wishes and feelings throughout the child’s journey through the child protection and family justice systems, with separate representation available for the child within the context of court proceedings. By contrast, under the Children (Jersey) Law 2002 and the Children (Guernsey and Alderney) Law 2008, the representation and consideration of children’s wishes and feelings appears to be more sporadic in nature when looked at across the scope of the child protection and family justice systems. However, before we English lawyers get carried away with extolling the virtues of our own system, and in order to draw some lessons which may be of assistance within your jurisdictions, we need to examine how our system works in practice.

The voice of the child

7       To understand the challenges that arise when endeavouring to apply effectively the English and Welsh statutory framework, it is first necessary to look at the principles that underpin its provisions concerning the wishes and feelings of children. In short, to examine why domestic legislation concerning children should facilitate and take account of those wishes and feelings.

8       Recourse to legal instruments is not required to justify the proposition that the voice of the child should be adequately and fairly represented in public law proceedings. It is a requirement of natural justice that a human being have a right to participate in any process that is designed to determine their welfare and future. By facilitating the “voice of the child” we recognize that child's integrity as a human being and as a member of society. [23] To quote District Judge Nick Crichton, “A child is a citizen no less because he or she is a child.” [24] For most children, representation in matters concerning their welfare should be facilitated by their parents listening to them and advocating on their behalf in the manner and to the extent appropriate. A child whose parents are incapable of doing this is no less entitled to be represented appropriately in matters concerning them. The opportunity for children to participate fully and directly in the formulation of their own destiny in a manner commensurate with their age, development and understanding is an elemental right. [25]

9       The principle that the voice of the child should be heard properly within public law proceedings is further grounded in the potential consequences of those proceedings for the child and family. It is often said that, since the abolition of the death penalty, the removal of a child from his or her parents is the most draconian action the State can take against the individual. Whilst care must be taken not to allow this view to develop into a nostrum which undermines child protection imperatives, it throws into sharp relief the context in which the wishes and feelings of the child are being sought. Within this context, listening to the voice of the child is central to the process by which Courts and administrative bodies ensure that such draconian intervention in family life is justified. Marcus Aurelius observed that “Everything we hear is an opinion, not a fact. Everything we see is a perspective, not the truth”. [26] This observation is often apt when considering the unenviable task often faced by social workers, Children's Guardians and the Courts in elucidating the precise nature of a child's situation with a view to determining whether or not State intervention in the care of the child is merited. Through the proper articulation of “the voice of the child”, those charged with safeguarding and promoting that child's welfare increase the accuracy of their assessment of the child’s situation, resulting in a more proportionate response, if a response is needed.

10     Within the context of the potential consequences of State intervention, and the emotional turmoil created by that intervention in the life of a child, giving a child an effective voice is often (although not always) of real benefit to that child. While research on children's views in this field is still in its infancy, that work demonstrates that some children want to be heard within the process that determines the future course of their lives and careful efforts are required to identify those children; some wish to have a dialogue about, and an understanding of those matters which have resulted in others seeking to prescribe the course of their lives. [27] Indeed, a child may need to express views, wishes and feelings in order to prevent future harm, distress or disadvantage. [28] The Court of Appeal has acknowledged this, Lord Justice Thorpe observing:

“If direct participation would pose an obvious risk of harm to the child, arising out of the nature of the continuing proceedings and, if the child is incapable of comprehending that risk, then the judge is entitled to find that sufficient understanding has not been demonstrated. But judges have to be equally alive to the risk of emotional harm that might arise from denying the child knowledge of and participation in the continuing proceedings”. [29]

11     Finally, that a domestic jurisdiction ensures that within its child protection and family justice legislation the child’s wishes and feelings are ascertained and taken account of is compelled by obligations arising from membership of the international community. States Parties to the United Nations Convention on the Rights of the Child 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. [30] 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. [31]

12     The procedural safeguards inherent in a child’s rights under art 8 of the European Convention of Human Rights and Fundamental Freedoms 1950 [32] include the need to ensure that the child’s point of view is adequately and independently represented in any decision making process, however young the child may be. [33] Article 6 requires that a child be entitled to participate effectively in the process by which a local authority identifies, assesses and approves future options for that child. [34] As Mr Justice Munby has observed—

“Children are not the largely passive objects of more or less paternalistic parental or judicial … decision-making. A child is as much entitled to the protection of the European Convention—and specifically of Article 8—as anyone else.” [35]

13     The Children Act 1989 and its associated secondary legislation lays claim to being a coherent statutory code which incorporates and gives force to these principles upon which the need to take account of the wishes and feelings of children through effective representation is based. But to what extent is this claim valid? An examination of the challenges of giving practical effect to these laudable aims through domestic legislation demonstrates that, 16 years after the coming into force of the Children Act 1989, we still have some way to go before the day to day operation of the law matches the high expectations of cardinal principle.

The challenges

Looking beyond “wishes and feelings”

14     One of the issues that is immediately apparent when examining the statutory regimes applicable to public law proceedings is the difficulty that arises from attempting to apply a formal, and essentially inflexible, statutory regime to very human issues which present with an almost infinite number of human permutations. Within the context of the child’s wishes and feelings, this difficulty most often crystallises in the question of the consequence of age and understanding.

15     The Children Act 1989, the Children (Jersey) Law 2002 and the Children (Guernsey and Alderney) Law 2008 state that when considering whether to make a public law order the court shall within those proceedings have regard in particular to the ascertainable wishes and feelings of the child concerned considered in light of his age and understanding. [36] Within the context of public law cases, this question is further complicated by the fact that it is asked within the context of children who will likely have significant and diverse needs; needs described by key developmental theories including attachment, [37] cognitive development [38] and resilience. [39] There is extensive guidance within the case law as to the age and level of understanding at which a child’s wishes and feelings should be accorded significant weight. [40] The Children (Guernsey and Alderney) Law 2008 attempts to codify such guidance. [41] The Court is not restricted by a child’s wishes and should disregard them if the child’s welfare appears to diverge from those wishes. In the end, the decision is that of the court and not that of the child. [42] However, whilst these are all issues to be considered within the context of the separate representation of children in public law proceedings, they are only elements of a much wider whole.

16     The first challenge when seeking to provide effectively for the separate representation of children in public law proceedings is facing the need to appreciate the proper ambit of that representation. Section 1(3)(a) of the Children Act and art 12 of the UNCRC emphasise participation of the child in the decision making process through the articulation and expression of their wishes and feelings. Articles 6 and 8 emphasise the participation of the child in that decision making process in broader terms, through the adequate and independent representation of the child’s interests within that process. Separate representation is not just the opportunity for children both to articulate and express through representation (or directly if appropriate) their own wishes and feelings in all matters affecting them, but also to have their global interests adequately and independently advocated in those matters. Whilst the extent to which a child’s wishes and feelings are give weight by the Court when making decisions affecting that child is necessarily referable to the child’s age and understanding, the right to be represented per se in respect of those decisions is a right of all children regardless of their age and understanding. [43] Only by keeping this distinction at the forefront of our minds can we hope to ensure effective separate representation for children and young people within the context of the statutory framework.

“Whole system” representation

17     The concept of access to justice for children traditionally contemplates children and young people involved in proceedings. But justice is a concept that transcends proceedings—all intervention in a child’s life must be just. The concept of access to justice for children and young people cannot be limited to the currency of proceedings but must extend outside the boundaries of those proceedings. Article 12 of the UNCRC requires that children should be able to express their views in "all matters" affecting them and, in particular, in any judicial and administrative proceedings. The fair trial guaranteed to a child by art 6 is not confined to the ‘purely judicial’ part of the proceedings but extends across the decision making process. [44] Within the context of public law, Court proceedings represent the end of a process in which the life of the child will have been the subject of examination, assessment and decision making for many months and sometimes years prior to the case reaching court. The second challenge in achieving effective separate representation of children in public law is recognising that access to justice within the context of public law is not simply about access to the Courts. The current position in the English and Welsh child protection system is a lesson in the risks of failing to recognise and meet this challenge.

18     The revised Children Act 1989 Guidance Volume 1—Court Orders [45] and the Public Law Outline [46] are the product of the widely recognised need to encourage early effective intervention where children’s welfare is threatened, with a view to achieving partial or full resolution before cases reach court and, where proceedings are necessary, to ensure their proper preparation and effective case management. Central to achieving these twin aims is a pre-proceedings process which provides parents with notice of the Local Authority’s concerns by way of a letter before proceedings and the opportunity to discuss, with the benefit of legal advice, ways of dealing with those concerns without the need for the involvement of the courts. At its heart, this process involves the adult parties facing each other on equal terms, and in particular with equality of arms, for the purpose of ordering the arrangements for the child or identifying the issues the court will need to resolve if the court is to order those arrangements.

19     However, whilst the central aim of the pre-proceedings process is to fix safe arrangements for the child, there is no provision for the separate representation of the child’s interests within this process. The limited access to funding for legal advice available to parents upon the local authority issuing its letter before proceedings is not available to children. Section 41 of the 1989 Act does not provide a Children’s Guardian until proceedings are actually issued. [47] Accordingly, during the period in which the local authority and the parents are working, with the benefit of legal advice, to avoid proceedings or to ensure the efficacy of proceedings, the interests of the children, many already living away from their families, [48] are entirely unrepresented save by the local authority and their parents (whose respective agendas may not always be coincident with the best interests of the child). Decisions with the potential to fundamentally affect the child for the remainder of his or her minority are taken without any provision for the voice of the child to be heard independent of both the parents and the State.

20     There are, as we have seen, statutory duties which require a local authority to ascertain the wishes and feelings of the child when working under Part III of the 1989 Act and to represent those in the decision making process. [49] But in practice very real difficulties can arise in meeting these duties. Many social services departments are resource poor, with reducing levels of experience and training on the front line, which can militate against a careful analysis and representation of each individual child’s situation. Difficulties arise because the social worker charged with ascertaining and representing the child’s wishes and feelings may well be the very worker who has removed the child from home, or who is in direct opposition to the parents to whom the child is usually loyal, and not a worker the child trusts to reveal to their true wishes and feelings. Difficulties also occur because the person charged with representing the child’s position is also an employee of the local authority and thereby constrained from representing the child independent of the inevitable pressures that come with that employment. These diverse difficulties increase the risk of the child’s position being settled by way of “adult” arrangements which fail fully to take account of the child’s interests and can, in extreme cases, lead to tragedy. [50]

21     To meet the demands of cardinal principle, the separate representation of children must meet the challenge of encompassing the whole process by which children’s best interests are determined. The separate representation of the child during proceedings stands for little (or is at best made much more difficult) if key decisions fixing a hard to alter status quo have been made prior to the child having access to such representation.

Direct participation

22     The need to ensure that the child is listened to within proceedings through the proper use of the reporting and representation provisions of the Act has been expressly endorsed by the House of Lords, Baroness Hale observing in Re D (A Child) [51] that—

“There is 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 reason for failing to hear what the child has to say than it is for refusing to hear the parents’ views.”

23     The third challenge in seeking to provide effectively for the separate representation of children in public law proceedings, and arising from this formulation, is determining how children, as moral actors in their own right, can best have their position separately represented within proceedings. In particular, to what extent should children be able to represent their own position directly to the Court?

24     At present, the primary evidential mechanism for the separate representation of children in public law proceedings is the report of the Children’s Guardian, compiled pursuant to s 7 of the Children Act 1989. [52] To date it has not been the general practice in family proceedings for the children to give direct oral testimony as to their wishes and feelings [53] and, except by direction of the Court, children should not attend Children Act 1989 hearings. [54] Indeed, the court may properly refuse to receive oral evidence from a child notwithstanding that he is sufficiently competent to be an independent party to the proceedings. [55] Whilst, within the context of private law cases, the European Court of Human Rights has held that it is essential that the competent courts give careful consideration to what lies in the best interests of the child only after having direct contact with the child, [56] when the Grand Chamber considered that proposition it rejected it, holding that—

“It would be going too far to say that domestic courts are always required to hear a child in court on the issue of access to a parent not having custody, but this issue depends on the specific circumstances of each case having due regard to the age and maturity of the child concerned.” [57]

25     It can be argued that the manner in which the separate representation of children is achieved currently is, at least evidentially, paternalistic in nature. Whilst there are some cogent reasons for this approach, some commentators have argued that this position, and in particular the process adopted pursuant to s 7 of the 1989 Act, is not fully compliant with art 12 of UNCRC. [58] Indeed, in light of cases such as Mabon v Mabon and Re D (A Child) the debate over the extent to which children should be able to convey their views directly to the Court is currently one that is increasing markedly in its intensity. The President of the Family Division has mooted the question of whether we should in fact review our reluctance to allow children to speak to Judges in private. [59] A powerful personal account of this practice has been provided by District Judge Nicholas Crichton. [60] The Family Justice Council Voice of the Child Committee is currently examining the issue of the direct participation of the child in proceedings and recently held a Conference to facilitate debate on the subject. [61] Research suggests that it is increasingly common for judges to see children in at Court within public law proceedings. The Your Shout research by the NSPCC found that—

“The young people also gave strong support to the Act’s emphasis on consultation with themselves and those who were important to them. Overall, it was encouraging to see that roughly a quarter of the sample had been to court and that a quarter of these said they had spoken to the judge. Traditionally there has been resistance to the idea of involving children directly in care proceedings. This finding indicates that practice may be slowly changing and that judges are more prepared to give children who want to be involved the chance to attend the court hearing and to speak to them.” [62]

26     The issue of the extent to which the separate representation of children in public law should extend to the attendance of those children at Court is a difficult one. In particular, within in the context of public law litigation hearing the voice of the child is, more often than not, a far from straightforward issue. Whilst children should feel that they have participated as partners in the decision making process, they should not be made to feel that the burden of decision making has fallen totally upon them. There is accordingly a tension between the child’s right to be heard and the Court’s duty to make decisions that safeguard the welfare of that child. [63] Within the context of the provisions for bringing the wishes and feelings of the child before the Court contained in s 7 of the 1989 Act, Judges in England and Wales have discretion whether to see the child, to be exercised in accordance with a number of guiding principles set out in the case law. [64] The extent to which this discretion should be exercised in favour of permitting the child to attend Court is now one of the principle challenges in the effort to achieve effective separate representation of children in public law proceedings.

Ongoing access to justice

27     Where care proceedings conclude with the child being made the subject of a care order, the duty of the Local Authority under the Children Act 1989 to ascertain, so far as is reasonably practicable, the wishes and feelings of the child regarding matters to be decided continues. [65] In addition, as noted above, the regulations governing the review of the child’s position in care require that an explanation be given to the child as to what steps he or she might take under the Children Act 1989, [66] that the views of the child be sought and accounted for on any matter that is to be considered in the course of a review [67] and that, so far as is practicable, the child be involved in the review. [68] However, as with the pre-proceedings process, there is no statutory provision for the child interests to be separately represented in care.

28     Following the implementation of the Adoption and Children Act 2002 the child theoretically has the protection of the Independent Reviewing Officer who should be appointed by the Local Authority and who should ensure that the child’s views are understood and taken into account within the review process. [69] However, the amendments made to the Review of Children Cases Regulations 1991 have failed to ensure that Independent Reviewing Officer’s are truly independent of the Local Authorities in respect of which they may be asked to consider issues concerning whether a child is being adequately listened to. This lack of true independence materially and detrimentally affects the separate representation of the interests of children in care. [70]

29     The need for and effect of independent representation of views for children in care can be demonstrated by the work of Voice (formerly Voice of the Child in Care), founded in 1975 by Gwen James following the high profile death of Maria Colwell. Its remit was to allow children and young people in care to have a say in decisions that affect their lives. Over the years the service has gradually evolved from a helpline, to providing a visiting advocacy service to children in secure units to offering a direct advocacy service for young people in care and in need. In its 2006 report on Voice, [71] the Thomas Coram Research Unit [72] found that the circumstances requiring the support of an advocate described by young people and advocates covered a broad range including negotiating contact with family or siblings; placement factors; immigration status and entitlements for young people seeking asylum; contesting a court order; unmet entitlements to provision under the Children (Leaving Care) Act 2000; [73] access to housing and a wide range of complaints procedures in situations where social services departments were failing to meet their duty of care to the young person. The research noted that children valued highly the services of an independent advocate, one child observing in respect of her advocate:

“She made me feel like a person … that’s what I can’t stand about Social Services … she (advocate) made me feel like my views and opinions were as strong and as great as any other person’s … it was a completely different relationship.”

30     Once again, as with the position prior to proceedings, to meet the demands of cardinal principle, the separate representation of children must meet the challenge of encompassing the whole process by which children’s best interests are determined. Again, the separate representation of the child during proceedings stands for little if children entrusted to the care system lack representation sufficient to ensure plans that representation during proceedings helped to achieve for them are given effect once the care order is made.

Conclusion

31     The international legal obligations that bind the jurisdiction of England and Wales require the opportunity for children both to articulate and express directly their own wishes and feelings and to have their interests adequately and independently represented in all matters affecting them. In that children may be exposed to greater harm where their voices are not heard, there is also a moral imperative to listen to the voice of the child. Whilst we claim the Children Act 1989 as a coherent statutory code that satisfies these legal and moral obligations, in fact significant challenges remain before this claim can be justified.

32     Above all, as we develop our understanding of children as the holders of rights, the key challenge for the jurisdiction of England and Wales, and for the jurisdictions of the Channel Islands as they continue to enhance their public law legislation, is to develop statutory mechanisms that see the separate representation of children in a much wider context than the narrow prism of proceedings, separate representation that encompass the whole period in which the State intervenes in the life of a child so as to ensure that the child has a consistent and continuous voice during that intervention. Only in this way will the separate representation of children reflect the reality of the child’s journey through the child protection and family justice systems and ensure sustainable outcomes for those children.

Alistair MacDonald is a barrister practising from St Philip’s Chambers, Birmingham. He is a past Co-Chair of the Association of Lawyers for Children.