Presenting the voice of the child in written representations and witness statements

If you are to adopt a children’s rights-based approach to preparing key documents used in legal proceedings, like statements, representations, skeleton arguments, and written submissions, you will need to consider both procedural and substantive aspects. The procedural aspects include how you bring the child’s interests, wishes and feelings to bear on the documents you submit to the court or other decision-making authority, and how you make sure that their authentic voice is heard by the relevant decision maker. The substantive aspect includes how you use children’s rights principles, law and guidance to support your arguments. 

In many cases, the primary means by which a child is heard by the court is through a written witness statement (this is true of immigration cases, for example, where all evidence in chief has to be set out in a written statement, and the only oral evidence generally allowed are responses to cross examination. An independent social work report can be commissioned, but is relatively rare). In other cases, such as family cases, the views and interests of the child will be presented through an independent expert’s statement, such as a Guardian’s report. 

As the child’s lawyer, it is your responsibility to ensure that the child’s interests, wishes and feelings are communicated as clearly and to the highest possible standard in all of the written documents that you prepare. 

The following lawyers reflect on the challenges of trying to bring children’s rights to bear on their day-to-day practice:

"Generally statements have the solicitor’s voice in them, not the client’s voice. You have your little set phrases that go into them! What the court thinks is relevant and what the client thinks is relevant is always different."
Lucy Yeatman

You can see here that the lawyer’s job in preparing a statement or proof of evidence is a complex one.  It requires a level of skill and sensitivity to preserve the genuine voice of the child whilst also drafting something that is persuasive and supportive of the legal arguments in a case.  As practitioners, we all know that the statement will need to address issues that will be of interest and relevance to the decision maker.  It is also important to be aware that if we do not write statements that preserve the genuine voice of the child, there is a risk of them not “coming up to proof” when giving evidence or being cross examined, leading to poor outcomes.  Of course, if a statement strays from instructions there is also a risk of presenting a misleading account to the Court, raising professional conduct issues.  

Reflective exercise

Consider the reflections of two lawyers set out below, and then consider a sample written statement from your own case work involving a child client. There are some questions below to help you reflect on the steps you took to prepare that statement.

For some children it may be more difficult to involve them intensely in drafting statements to the court, particularly if they have learning difficulties, emotional problems, or if there is a language barrier. The following reflections from another lawyer in relation to one of their child clients, ‘Rona’, illustrate some of these challenges:  

Consider the strategies of the above lawyers in addition to the following points to guide your reflection. You might like to focus on a particular case, perhaps the one related to the statement you have brought with you to this training session. What did you tell this child / what do you generally tell child clients about the purpose of a statement and how it will be used once it has been prepared?  

• What did you tell this child / what do you generally tell child clients about the purpose of a statement and how it will be used once it has been prepared?

• How far do you think your child clients generally understand this process? How do you test their understanding? Is there anything you could you do differently to explain the process more clearly?

• What process did you follow to prepare the statement? If you wrote the statement during an appointment, how do you think the child experienced this process? Alternatively, did you draft the statement after an appointment on the basis of information provided? There are pros and cons to each approach – could the approach you use be varied depending on the client?

• Did you provide opportunities for the child to speak without interruption? And time for them to think about what they wanted to tell the decision-maker? Have you thought about the way in which you ask child clients questions (e.g. are they open or closed; are they leading questions?).

• Consider the lawyers’ points in the reflections above and in the video – To what extent do you think your statement preserves the genuine voice of that particular child? How much have you re-phrased what the child was telling you? Do you quote him/her verbatim, or do you edit the child’s expressed instructions and their wishes / feelings? Was doing so necessary and helpful?

• Were there issues you left out? What were they and why?

• What steps did you take (if any) to obtain feedback from the child on the draft statement? Did you give the child the opportunity to suggest changes?

• Have you considered using other, creative techniques to support a written submission, such as photos, a video recording, letters directly from the child to the decision-maker, or pictures drawn by the child? Could you consider using these techniques? If you have used them already, how effective were they in communicating the child’s perspective to the decision-maker?

Bringing children’s rights to bear on your substantive (legal) arguments: challenges and opportunities 

Children’s rights principles are enshrined in international legal instruments by which the UK is bound. Module 6 offers some guidance on how to apply these provisions at international level. Obvious examples include: 

• The UN Convention on the Rights of the Child 1989 (UNCRC). This is widely regarded as the most comprehensive and reliable catalogue of children’s civil, political, social, economic and cultural rights. It contains 41 substantive provisions and is accompanied by detailed guidance and state-specific recommendations, developed by the UN Committee on the rights of the child (the body responsible for monitoring its implementation). The UK ratified the UNCRC in 1991 but it has only been incorporated partially into domestic law in a devolved context. This means that, for the most part, the CRC is legally binding in principle but there are no enforcement mechanisms or sanctions if the UK authorities fail to comply with its provisions unless they are reflected in specific obligations under domestic law.
  
  Domestic law relating to children can, however, be interpreted in the light of the UNCRC, even if the latter provisions are not directly incorporated. As a lawyer, therefore, you can introduce specific legal arguments based on domestic law, but cross-refer to the UNCRC to support an interpretation of that law in a way that is compatible with children’s rights. A good example of this is in the context of the child welfare principle under s.1 of the Children Act 1989 (for family proceedings) or s.55 of the Borders, Citizenship and Immigration Act 2009 (for immigration proceedings). As well as referring to the general best interests standard contained in Article 3 UNCRC, you can cross-refer to all manner of other UNCRC provisions (their right to have a say in decisions that affect them, their right to education, to protection against violence, to be detained only as a measure of last resort, to nationality and identity etc.) to support an assessment of the child’s welfare.

• EU law relating to children: There is a strong constitutional obligation on both the EU institutions and the EU Member States to protect children’s rights in all areas of EU activity (Article 3(3) Treaty on European Union). Also, the EU’s Charter of Fundamental Rights requires Member States to adhere to children’s rights standards when implementing EU law (Article 24). Both the EU’s Court of Justice and, on occasion, the UK courts, have referred to the Charter when adjudicating on cases involving children that fall within the scope of EU law. To supplement this, there are over 80 EU legal instruments that contain explicit provision for children across a range of areas, including cross-border family law, consumer protection, youth employment, free movement of EU nationals and their families, immigration and asylum and data protection. Most are in the form of EU Directives – this is EU legislation that is binding on all EU Member States in terms of the objectives it wants to achieve, but that requires Member States to implement the provisions in the form of domestic law by a particular deadline. A minority of provisions are in the form of EU Regulations – these are the strongest form of EU legislation and can be enforced in their entirety, immediately and directly before the national courts and authorities without the need for domestic implementing legislation. For instance, EU law governing parent child abduction between the Member States is governing by Regulation 2201/2003 (commonly referred to as the Brussels IIbis Regulation). Much EU legislation, whether it be in the form of Directives or Regulations, (i.e. relating to immigration and asylum and cross-border family proceedings) is informed by the UNCRC and by the EU Charter of Fundamental Rights, which means that it has to be interpreted in a manner that is compatible with children’s rights. 

  Following Brexit, it is likely that these provisions will continue to apply, at least for the immediate future. It is unlikely that the UK will retain the EU Charter of Fundamental Rights, though. As such, lawyers should continue to apply retained EU law in a manner that is consistent with children’s rights as set out in the UNCRC. 

• The European Convention on Human Rights (ECHR). The ECHR is a key source of human rights protection in the UK, particularly since its incorporation into UK law by the Human Rights Act 1998. Its provisions have been interpreted by the European Court of Human Rights (ECtHR) in over 1,000 cases involving children to support their rights. It has become an important point of reference, for instance, in protecting children’s best interests and family rights under immigration and asylum law, criminal justice, discrimination cases based on religion, ethnicity and disability, and in a range of private family cases and care proceedings. The fact that it has been incorporated into domestic law gives this instrument unparalleled traction as a human rights instrument in proceedings involving children.

How can lawyers draw on these international instruments in practice?

Unfortunately, we have very few explicit expressions of children’s rights in domestic law, so it’s not surprising that there is widespread resistance among lawyers to drawing explicitly on children’s rights principles in their legal arguments. This may be because of a lack of knowledge or confidence as to how to use those principles. There is also a strong perception amongst lawyers that children’s rights are only likely to have real traction if enshrined in domestic law – so the tendency is to draw on legal authorities at the closest possible level to where the proceedings are occurring, whether that be the primary legislation to which you are referring or case law and policy guidance connected to that legislation.   

• For that reason, lawyers much more likely to use provisions of the ECHR (such as Article 8 or Article 6) rather than the relevant provisions of the UNCRC because of the former’s incorporation into domestic law by virtue of the HRA 1998.

• Similarly, immigration lawyers will refer to the welfare principle enshrined in s.55 of the Borders, Citizenship and Immigration Act 2009 with only cursory reference to the best interests principle contained in Article 3 UNCRC.

• Family lawyers will not necessarily look to children’s rights principles at all; they will refer instead to the welfare checklist as contained in the Children Act 1989 on the basis that the welfare checklist is deemed compliant with the UK’s international obligations and human rights principles

Listen to the following practitioners talk about their experiences:

"If I had a child who wanted to be heard and the judge was unwilling, I would phrase an argument around his or her Article 6 (ECHR) rights, the right to a fair trial, I’ve never used the UNCRC in a case and I’ve been doing children’s law for 15 years."
Jo-Anne Lomax

Why is it important to adopt a children’s rights-based approach to your substantive legal arguments?

If children’s rights are more embedded in our legal system, then the focus of proceedings, the decisions made, and the experience of children will change. Despite some of the concerns expressed by lawyers, there are real possibilities and, indeed, an obligation, to draw more directly and creatively on international children’s rights sources in your legal arguments for the following reasons: 

• To embed it in the jurisprudence. In reaching a decision on a particular case, judges generally only respond to the arguments that are put to them by children’s legal representatives. It is therefore up to you as lawyers to include children’s rights-based arguments in your submissions so that they grab the attention of the courts and become embedded in the jurisprudence

• Making children’s rights meaningful: Children are entirely reliant on you to give a voice to their rights in legal proceedings; if you, as their legal representatives, fail to give those rights expression in your representations to the courts or other decision-makers those rights become meaningless

• Improving outcomes in your cases. Drawing more confidently on international children’s rights sources can enhance the chance of success insofar as they add weight to a particular claim, and may even provide the grounds for a successful appeal. A particularly effective technique for using the European Convention on Human Rights (ECHR) to protect children’s rights, for example, is to cross-refer to the relevant provisions of the The United Nations Convention on the Rights of the Child (UNCRC) to achieve a more child-focused interpretation of the ECHR provisions. For example, Article 7 of the UNCRC which acknowledges the child’s right to know and be cared for by his/her parents, has been referred to by the European Court oof Human Rights (ECtHR) in support of a father’s challenge to his son’s adoption which had occurred without his knowledge (Keegan v Ireland (Application No 16969/90) [1994] ECHR Series A 290). In Sahin v Germany (Application No 30943/96) [2001]) and Sommerfield v Germany (Application No 31871/96) ECHR 2003-VIII 341) - both concerning applications for child contact - the ECtHR referred to Article 12 of the UNCRC in determining both the extent to which the child should be allowed to participate in proceedings and the weight that should be attached to the views expressed. Equally, in the context of juvenile justice, the ECtHR has referred to Article 40(3) UNCRC to inform its interpretation of Article 6 ECHR concerning the right to a fair trial.

• Protecting children’s rights post-Brexit. As the UK prepares to leave the EU, there is a real possibility (perhaps even a probability) that the children’s rights protection contained in EU law will be diluted, at least in the longer term, as measures are repealed and amended. This is particularly true of immigration and asylum law. It is therefore crucially important that these rights inform the case law while they are still expressed in the legislation. There is weak protection for children’s rights in common law.

Remember: you have a growing jurisprudence on your side which supports a rights-based approach to legal cases involving children. For more detail, see Stalford, H., Hollingsworth, K. and Gilmore, S. (eds) Rewriting Children’s Rights Judgments: From Academic Vision to New Practice (2017, Oxford: Hart Publishing)

How can lawyers weave children’s rights into their arguments more persuasively?

1. Use the strongest jurisprudence that connects the relevant legislation with children’s rights principles (see above examples);
   

2. Think about cross fertilising between the ECHR and the UNCRC to add more weight to a rights-based claim:

   • Article 12 UNCRC (the right to be heard) can be used in conjunction with Article 6 ECHR in all sorts of proceedings to promote children’s right to a fair trial if there are concerns or objections around the child’s participation in proceedings;

   • Article 3 UNCRC (the best interests principle) can be used in conjunction with Article 8 ECHR to support children’s right to family life. This is typically used in immigration proceedings, but also think about cross-fertilising Article 8 ECHR arguments with Article 7 UNCRC (children’s right to be cared for by their parents); Article 8 UNCRC (the child’s right to preserve his or her identity, including nationality, name and family relations); or Article 9 (the child’s right not to be separated from his or her parents).

   • Article 3 ECHR (prohibition of torture or inhuman or degrading treatment) has been used in child protection cases and could be supported by explicit reference to a range of UNCRC provisions, including Article 3 (the best interests principle); Art 6 (children’s right to life, survival and development); and Article 19 (right to be protected against all forms of violence)

3. Present familiar principles such as the welfare principle in a way that corresponds with children’s rights principles – not just Article 3 (the best interests principle) but a range of other principles that support children’s welfare (such as the right to education (Art 28 UNCRC), the right to the highest attainable standard of health (Art 24 UNCRC); the right to be cared for by their parents (Arts 7, 8 and 9 UNCRC) It’s important for you to know that the best interests principle underpins the interpretation and application of all of the other provisions contained in the UNCRC and is meant to be interpreted really expansively, not just in narrow welfarist terms, so use it as a gateway to considering many other substantive provisions. This will facilitate a really rigorous presentation of the various factors that need to be taken into account to uphold the child’s best interests.
   

4. Foreground your rights arguments early on in a case (at first instance) so that you can keep coming back to those same arguments and reinforcing them if the case progresses to appeal.

Listen to the following lawyers talk about their strategies in this respect:

"The courts say that the Children Act 1989 was written with children’s rights in mind, so the courts think they don’t have to consider rights-based arguments, but they are the lazy judges; the more respected judges would consider rights arguments."
Rosalind Compton

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