Children: to be seen and heard?

Posted: 22/06/2016

The issue of whether, when and how the views of children should be heard in family cases has been cropping up in recent cases. Today, the Supreme Court was due to give judgment in an international case about the living arrangements for a nine year old child (Re D (A Child) [2016] UKSC 34) in which the question was whether the right for a child to be heard was of fundamental importance in deciding his future home. In the event, the appeal was struck out for the jurisdictional reasons set out below.

The story so far

In this case, both of the Romanian parents wanted the child to live with them. The mother was living in England (where the child had also lived since he was a baby) and the father in Romania. Romania’s highest court had already decided that the child should live in Romania with his father. The father applied for recognition and enforcement of the Romanian court order by the English court in early 2014. The application was governed by the Brussels II (Revised) Regulation (BIIR).

In response, the mother disagreed and said that the decision should not be recognised or enforced because the Romanian court had not given the child a chance to be heard. The English High Court and the Court of Appeal agreed with the mother and refused the father’s application to enforce the Romanian custody order applying Article 23(b) of BIIR which provides that a judgment should not be recognised: 'if it was given, except in a case of urgency, without the child having been given an opportunity to be heard, in violation of fundamental principles of procedure of the member state in which recognition was sought.'

It transpired that the Romanian court had not made direct or indirect enquiry of the child regarding his views. The Supreme Court appeal by the father sought to argue that the English court was wrong to refuse to recognise and enforce the Romanian court’s decision on the basis that the Romanian proceedings had breached a fundamental principle of domestic procedure regarding the voice of the child in disputed child arrangement cases. The focus was to be on the interpretation and application of Article 23(b) of BIIR.

Supreme Court

Judgment on the substantive issue was due to be handed down today. However, the Supreme Court has instead decided unanimously that it does not have jurisdiction to hear the father’s appeal because Articles 33, 34 and 68 of BIIR operate so that there can only be one tier of appeal in England and Wales (the Court of Appeal) which has already been exhausted. This means that the father has no further judicial recourse in England.

So where are we on the issue of listening to children in family matters?

The fundamental requirement to listen to children in disputes about their futures was recognised as long as ten years ago by the UK House of Lords in Re D (A Child) [2006] UKHL 51, [2007] 1 AC 619]: '…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.'

In domestic cases, there is a range of ways to involve a child affected by proceedings:

• full scale legal representation of the child
• a report of an independent CAFCASS officer or other professional
• a face to face interview with the judge or
• inviting the child to write a letter to the judge setting out their views.

The issue of hearing the children’s views should be addressed early on in the dispute so that the court can direct for the appropriate involvement to take place.

The relevant procedure in England and Wales for involving children in decision making that affects them (either through the courts or by agreement) is at PD12B of the Family Procedural Rules 2010 which makes it clear that children and young people should be at the centre of all decision making. This accords with the Family Justice Young People's Board Charter.

Of course, the level and manner of involvement will differ depending on the age and maturity of the child. In addition, the fact that a child is given the chance to participate does not mean that this/her views will be followed by the court as the weight to be given to a child’s opinion will be evaluated by the court having heard all the evidence.

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