Children’s right to be heard as a legal obligation

This module explores the ways in which lawyers can support children to participate in formal court or tribunal proceedings before judges and other officials.  The materials will illustrate some of the key benefits of involving children directly in formal proceedings.  We will also look at some of the concerns and obstacles that make this difficult to achieve in practice and how to overcome these, as well as circumstances where it might be appropriate for a child’s involvement to be more indirect.

At the outset, it is important to acknowledge that in some types of proceedings, such as immigration, criminal or child protection cases, the stakes are extremely high and the proceedings are adversarial and often confrontational.  Our child clients have often received advice from many different sources including family members, other young people, social and youth workers and, in the context of immigration, traffickers,  and others who have a exploitative relationship with the child  A children’s rights-based approach does not detract from your obligation to give clear advice and your responsibility to act in your client’s best interests at all times as well as your duty to take and act on instructions where your client is competent. This can be a difficult balance to strike.  

The right to participation in decision-making is a fundamental tenet of a children’s rights-based approach to the legal process. Numerous provisions of international law, including the UN Convention on the Rights of the Child, the European Convention on Human Rights, the Council of Europe Guidelines on Child Friendly Justice and the International Association of Youth and Family Judges and Magistrates (IAYFJM) Guidelines on Children in Contact with the Justice System make explicit reference to this right. 

Applying these principles and guidance to the representation of children in formal hearings means being prepared to challenge some of our presumptions around children’s vulnerabilities and incapacities. In particular, it requires recognition by legal practitioners of the following:

Children’s opportunities and experiences of participation in formal proceedings vary considerably according to the legal context and, indeed, according to the personnel involved in the case.

In immigration cases, some practice guidance has been issued to support and protect children during their participation in both Home Office interviews (in the case of child asylum seekers) and tribunal hearings.  There is a duty on the Home Office to conduct an assessment of the best interests of any children affected by its decision and statutory guidance about how to do this. However, the default position in Article 8 cases or in asylum cases where children are dependents is often to exclude them from direct and active participation in appeal hearings.  In a particular case there may be good tactical reasons for doing so.  But in other cases a greater role for the child in hearings may well benefit the case as well as the child. Some legal practitioners may not even meet with children, instead taking instructions from the adults who care for them about the wishes of the children and their perspective on what is happening; this is dubious ethically and may well mean that important information never comes to light.  Of course, Judges can be particularly reluctant to hear from a child who is under 14, and representatives can be concerned that the child may be cross examined in order to create discrepancies between their evidence and that of their parents or carers – and that this is potentially damaging to the case and to the child. We will address these concerns and make some practical suggestions about how to overcome them below.   In family cases a guardian is often appointed to represent the interests of the child – there is no such role in immigration cases, so it is particularly important that practitioners take the time to explore what evidence a child might provide and in what format.

In all family cases, there is a statutory obligation to ascertain and consider the wishes and feelings of the child in the light of the child’s age and understanding (s.1(3) Children Act 1989). Much progress has been made in highlighting the importance of children’s views in this context, and a Family Justice Young People’s Board, composed of over 50 children and young people, advise the government and courts on how to make their processes more sensitive to children’s rights and needs. 

In criminal proceedings procedural adaptations can be made to ensure that the participation of children in interviews and hearings does not exacerbate existing vulnerabilities.

And yet, despite a clear international obligation to give children an opportunity to be heard across all different types of legal proceedings, and in spite of clear domestic guidance explaining how this can be achieved, there is significant inconsistency and resistance by practitioners and judges in practice. Children continue to be denied an opportunity to be heard. The default position is generally to exclude children from direct and active participation in formal proceedings in favour of more indirect, proxy representation via written statements and welfare professionals’ reports. Even then, the extent to which the expressed views and wishes of children are conveyed varies considerably (see Module 3 for further guidance on preparing witness statements and written representations to the court from a children’s rights perspective).  

"I was terrified about the idea of going to court and none of the officials told me what I should do or how I should behave. In the end I just stood there and took it all in." 
Katie

Across all of these legal areas, child clients and lawyers alike have identified three important priorities when it comes to engaging children in formal hearings:

But participation is not straight forward. There are often well-founded concerns that militate against children’s direct participation in legal proceedings:

• The child may not have the capacity to give evidence because of their age, limited understanding or disability.

• The child might have limited factual knowledge to support their case (for instance in complex asylum claims or sensitive family cases).

• There may be genuine concerns that participating in formal proceedings will be harmful to a child, particularly if they have suffered trauma, if it may expose them to inappropriate information, or if the outcome of cross examination might bring them into conflict with or undermine their relationships with significant others.

• You as their lawyer may feel that involving the child more directly in proceedings may not advance their case; in fact you might feel that it would risk damaging their case, for example if they come across as lacking credibility.

The following lawyers’ reflections highlights these concerns:
 

"The thing about immigration cases in particular is that they are highly strategic. What the claimant says during proceedings has very little impact on the outcome."
Sarah Woodhouse

Notwithstanding some of the risks associated with children’s participation, all of the lawyers we have spoken to acknowledge not only their legal obligation, but the significant benefits of representing children’s voice to the decision-maker.

"While you develop a certain view of a child based on the paperwork, 99% of the time when you actually meet them that perception will radically change and you will have a better understanding of what steps need to be taken to properly conduct your case."
Jo-Anne Lomax

Achieving meaningful child participation in practice

There is an abundance of research in a family context highlighting the importance of involving the child as much as possible (if the child so desires) in formal proceedings. It leads to better understanding of the rules and the potential outcomes; it leads to better compliance (by adults and children alike) with the court’s decisions; and it leads to a greater sense by the child that they have been respected, valued and listened to in the course of reaching decisions that will impact dramatically on their life.  

So what strategies can lawyers can use to support children’s meaningful and effective participation in formal proceedings? In general, there are two main ways in which the child’s wishes, experiences and feelings are presented to the court: in an indirect way, through proxy reports of adult professionals appointed to represent the views of the child following discussions with that child or through adult carers whom decision makers assume are a proxy for the child; and as a direct participant or witness in proceedings.  

Guidelines 61 and 62 of the Child Friendly Justice Guidelines offers some direction on how practitioners should adapt proceedings and the environment to facilitate children’s participation either directly or indirectly: 

In family proceedings children’s direct participation in family proceedings is the exception rather than the norm; instead, their views and wishes are mostly presented to the court by a CAFCASS officer or social worker in the form of a report and oral evidence following a meeting with the child (usually of about 1 or 2 hours). In such cases, lawyers can take steps to ensure that such evidence is rigorous and genuinely reflective of the child’s wishes and feelings. 

If you think it is appropriate (for instance, if you feel that the child’s best interests and voice are not being adequately served by adults acting on their behalf), there are two main ways in which lawyers can facilitate children’s more direct participation in proceedings:

• They can apply to be joined as a party to proceedings: this is relatively rare and can only occur with the permission of the court if it is deemed to be in the best interests of the child and will not result in undue delay;

• They can request to meet the judge. Judges are more willing now than ever to meet directly with children during the course of proceedings, and guidelines have been developed to facilitate this. Note, however, that such meetings cannot be used for presenting new evidence to the court; rather they are intended to facilitate the judge’s understanding of the child’s wishes and feelings to support evidence that has already been presented and cross-examined in the main proceedings. Meetings with the judge are also aimed at helping the child to feel valued in the process and to enable the judge to explain aspects of the case, the rules and the potential outcome directly to him or her.

In immigration cases, the degree of involvement of children in legal proceedings is within the control of legal practitioners to a large degree.  Some lawyers would take a statement from a 5 year old child in an Article 8 appeal hearing. Other lawyers would not take statements from children who are older teenagers; we consider this to be poor practice where the proceedings concern the child in any significant respect, for example might result in the removal or deportation of an adult family member, or a decision about asylum status where they are a dependent on the application.  Children can be tendered to give evidence in appeal hearings – often the Home Office Presenting Officer will agree not to question children who are younger than 14, or will agree a list of questions in the time before the hearing begins.

Preparing the child to appear in court

In footage in Module 1 and 2 some of the young people talked about having limited preparation for their appearance in court - their lawyers neglected to provide even the most basic information about what time to turn up, what to wear, how and when to stand, and what the court might look like. 
So how do you actually go about preparing a child to give evidence in court or other formal proceedings? The Guidelines on Child Friendly Justice offer some pointers in this regard. 

The lawyers in the following film talk about the value of enabling the child to participate directly in formal proceedings, not just in terms of fulfilling their obligations in respect of children’s rights, but in a more strategic sense, to enable them to make the most persuasive and powerful case on behalf of their client: 

"It is important to tell children what will happen but also what will not happen in court. Children will often imagine that court proceedings will be the same as what they see on television - much more formal and dramatic than real life." 
Mital Raithatha, Rosalind Compton and Jo-Anne Lomax

Key points on preparing the child to appear in court

1. Show child a photo of the court or some images online so that they have an accurate impression of the physical layout.
   

2. Remember to give the child practical information (verbally and in writing) – where the court is, what time to arrive, what to wear, where to find you or the person who will represent them, to allow time for transport delays, what to do if they are delayed, and finally any steps they can take to prepare for the hearing, for example reading through their statement or attending a conference with Counsel.
   

3. You might want to suggest that the child attends the tribunal or court before their hearing (if possible in your area of law) to observe a case and just get a sense of how the procedure works – they can do this with a friend or supportive adult, or you can accompany them if you have funding to do so. Remember to brief them to switch off their phone and not to disturb the hearing. You can send them with a letter to show to the reception desk explaining why they are there and asking to be directed to a hearing room with substantive hearings listed. Some lawyers are not convinced this is a good idea, because the case that is observed might go badly, or the child might decide that they need to emulate the answers given by a witness and this might corrupt their own evidence, so approach this with caution.
   

4. Brief the child in general terms about answering questions in the hearing if they are giving oral evidence – how to deal with questions they do not understand or where they can’t remember the answer; likely or agreed areas of questioning; who to look at when answering and similar.
   

5. Remember to ensure you have informed them about their rights during the hearing and of your role, for example your commitment to represent their views to the judge, and their right to ask for a break if they want one.
   

6. Make sure they understand how and when the decision of the court or tribunal will be delivered

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