Learning outcomes for this module
At the end of this module you will be able to:
Understand what children's rights law and guidance requires of you as a practitioner when meeting with and taking instructions from a child.
Recognise the key concerns and challenges for lawyers when taking instructions from a child.
Identify practical techniques to make meetings with children “child friendly”.
Reflect on your training needs.
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What young people say about their first meeting with their lawyer.
To get us started here are some accounts from the young people describing meetings with their lawyers. Listen to what the young people say and commplete the short reflective exercise below.
Reflective Exercise
As you listen to the three young people discussing their situation, note down what the lawyers did which was unhelpful, and the impact that this had on their client. Also note the two suggestions that Liam has which he thinks would have made things better.Katie: the solicitor did not listen, and did not look interested. He did not dig deeper so did not understand the cause of the problems.
Caitlin: the solicitor did not seem friendly, he seemed strict. He spoke to her Mum and Dad, rather than directly to her or her little brother. He did not explain things. As a result she did not understand what was going on and did not get her point of view across.
Liam: Liam suggests constant updates will help build trust, and also a friendly, humane approach, for example asking, “How was your day?”
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Ensuring capacity – not the child’s but the lawyer’s
This part of the module encourages you to reflect on your training, to ensure that you have the skills you need to work with children.
When lawyers are skilled at working with children, children are more likely to understand what is happening, to be able to participate in decision-making and to feel that their views are taken into account. Training is crucial to this process.
The Child Friendly Justice Guidelines state that lawyers working with children must have received training in and be knowledgeable about:
children’s rights and legal proceedings adapted to children
the needs of children of different ages and different stages of development
the needs of children who are in situations of vulnerability
how to communicate with children
Child Friendly Justice Guidelines
All professionals working with and for children should receive necessary interdisciplinary training on the rights and needs of children of different age groups, and on proceedings that are adapted to them.
Guideline 15
Professionals having direct contact with children should also be trained in communicating with them at all ages and stages of development, and with children in situations of particular vulnerability.
Guideline 39
Lawyers representing children should be trained in and knowledgeable on children’s rights and related issues, receive ongoing and in-depth training and be capable of communicating with children at their level of understanding.
Reflective Exercise
Spend five to ten minutes individually or in pairs reflecting on your training needs. Ideally you should have your training record to hand and your learning development plan. Here are some questions to guide your reflections:- Look at your training record. Have you received training in relation to the following issues:
- children’s rights and legal proceedings adapted to children
- the needs of children of different ages and different stages of development
- the needs of children who are in situations of vulnerability
- how to communicate with children
- How useful was your training in preparing you for the various challenges of working on children’s cases?
- Has the training you received covered legal arguments from a children's rights perspective?
- Do you have a sufficiently high level of expertise in your area of practice to be sure you are competent to represent vulnerable clients? Children are considered vulnerable and professional bodies emphasise the importance of having in place appropriately trained experts when representing them. An SRA report has drawn attention to the low standards of service some vulnerable groups receive and in particular the lack of knowledge of children’s rights.
- What additional training would you like to receive or recommend that your colleagues receive? You should consider cross-referring to additional training tools to support your work with children.
- If you are a solicitor, consider what the SRA's requirement of "continuing competence" means for your work with children and consider updating your statement.
- Can you set up a peer review mechanism to support good practice for those in your firm who work with children. This could involve identifying staff with high levels of expertise to pass on their good practice to others less experienced, or encouraging colleagues to readily ask for support to enable them to improve their practice when working with children.
Key points on developing your capacity to work with children
TALE VIDEO 2
"You should not make presumptions based purely on the child’s age. It is good practice to reflect on how you might adapt your approach to enable younger children to give instructions."
Sarah Woodhouse
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Establishing trust
Remember the video clips of Katie, Caitlin and Liam you viewed at the start of this module? Like them, a number of the children we have spoken to feel that their lawyers are simply going through the motions. Lawyers perceive that their case is one of a string of similar cases, with established strategies, all decided by the lawyer in advance, often before they have even met. These children did not feel that their unique perspectives were of interest or relevance to their lawyers.
TALE VIDEO 3
"Being involved in legal proceedings in general, and meeting legal professionals in particular, can be a daunting and confusing experience for a child."
Helen Stalford
Children should be treated with care, sensitivity, fairness and respect throughout any procedure or case, with special attention for their personal situation, well-being and specific needs, and with full respect for their physical and psychological integrity. This treatment should be given to them, in whichever way they have come into contact with judicial or non-judicial proceedings or other interventions, and regardless of their legal status and capacity in any procedure or case.
Guideline 54
In all proceedings, children should be treated with respect for their age, their special needs, their maturity and level of understanding, and bearing in mind any communication difficulties they may have. Cases involving children should be dealt with in non-intimidating and child-sensitive settings.
Guideline 57
When children are heard or interviewed in judicial and non-judicial proceedings and during other interventions, judges and other professionals should interact with them with respect and sensitivity.
Guideline 64
Interviews of and the gathering of statements from children should, as far as possible, be carried out by trained professionals. Every effort should be made for children to give evidence in the most favourable settings and under the most suitable conditions, having regard to their age, maturity and level of understanding and any communication difficulties they may have.
If the lawyer makes a series of assumptions and sets out his or her proposed approach to the case in a mechanical and instrumental way, it establishes a passive role for the child. It can also reinforce the child’s sense of marginalisation and distrust of authority figures.
Conversely, if children are supported to understand and make decisions about their own case it can be significantly more empowering and constructive for them and for you as their legal representative.
TALE VIDEO 4
The child’s impressions of your first meeting will influence how forthcoming they are with information relating to their case and that will in turn impact on the quality of your advice.
Sarah Woodhouse.
Reflective Exercise
Many practitioners will already be operating on this basis, respectfully assisting children to understand their situation, to discern how to make decisions about what they want, and to express this. It is important to ask yourself whether you have developed good practice in this regard.
- Are you aware of how you might come across to your client?
- What efforts do you make to ensure you are approachable?
- Do you come across as disinterested or judgemental?
- Do you talk at your clients, or do you actively listen to what your client has to say and talk through the possible consequences?
Creating a more positive, trusting relationship with a child from the outset does not just involve lawyers making efforts to communicate with (and listen to) their child clients; it extends to sensitive adaptations of the physical environment.
Here are some thoughts from practitioners about how they approach building a relationship with their child clients from the point of their first meeting, and how this assists progress on the case.
Consider how the strategies which they adopt also give effect to the Child friendly Justice Guidelines.
As far as appropriate and possible, interviewing and waiting rooms should be arranged for children in a child-friendly environment.
"Only if you have a relationship of trust with your client can you make proper decisions about things, for example whether the child should or should not give oral evidence."
Jo Bezzano.
Reflective Exercise
Consider the experience of children of different ages visiting your offices. Use the checklist below as a tool to think about whether there are aspects that you might consider changing.Key points on establishing trust
Give young people sufficient time and space to get to know and trust you. The child may be willing and comfortable to divulge some information to you in the first meeting, but remember you are a relative stranger to them and it may be better to start with asking for and providing some basic factual information. As such, do not try to elicit too much information during the first meeting. Accept that this approach will be resource/time intensive to begin with, but in all likelihood it will save time and effort in the future and will result in a higher standard of legal work. It can be good to ease in by explaining what your role is and how you will work with him or her through the legal process. This will go some way towards reassuring the child that you are there to represent them and not just part of a bigger, hostile system.
Avoid making assumptions about the child clients based on ‘similar’ case work you have already dealt with or incomplete facts. Treat them as individuals with their own story to tell. Give the child an opportunity to talk freely and generally about their concerns, fears and wishes, and to vent their emotions. Doing so may not help you achieve a positive outcome to the case in a direct way, but can help establish that you are there to advocate for the child and that you take them, and their views, seriously.
Lawyers can underestimate the impact of relatively small gestures on the relationship they have with their child clients. Offering a cup of tea or other refreshment, your tone of voice, making an effort to convey warmth and a sympathetic attitude, and taking an interest in a child’s life outside their legal case all go a long way in creating a positive relationship.
Consciously adopt an "autonomy support" approach – this is described above.
Identify at least one commitment that you can make to changing your reception arrangements for child clients.
Remember: even small changes can make a big difference.
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Whose voice are you hearing?
TALE VIDEO 6
Children should have the right to their own legal counsel and representation, in their own name, in proceedings where there is, or could be, a conflict of interest between the child and the parents or other involved parties.
Guideline 40
Children should be considered as fully fledged clients with their own rights and lawyers representing children should bring forward the opinion of the child.
Guideline 58
Children should be allowed to be accompanied by their parents or, where appropriate, an adult of their choice, unless a reasoned decision has been made to the contrary in respect of that person.
"Although lawyers are always under tight time constraints we should try to use open ended questioning and avoid the temptation for us to 'fill in the gaps' in young people's stories."
Mital Raithatha.
Key points on hearing children
Make it clear to all concerned who your client is – if your client is the child, you and accompanying adults must be conscious of this at all times. Your professional obligations are clear that you must take instructions directly from your client, even if this takes longer and demands more creative approaches.
Make it clear that accompanying adults are there to play a supportive role; they can support the child emotionally, provide gaps in information that the child cannot or does not want to provide, and ensure that the child fully understands the process and advice.
Arrange the room thoughtfully before the appointment – have the child in the primary position, and place the accompanying adult’s seat to one side.
Direct anything you say to the child, not to the accompanying adult. It can help to always keep eye contact with the child, not with accompanying adults.
Consider asking (perhaps even insisting) that accompanying adults leave the room to enable you to take instructions directly and more freely from the child.
Make it a policy of your firm that lawyers will make a clear statement at the beginning of each meeting with child clients that they are your client and that you will be addressing all questions and advice directly to them.
You might want to include a clause in your client care letter, supported by a verbal reassurance that all instructions will be taken directly from the child in the first instance, where appropriate.
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Adopting a children’s rights based approach where the child does not want to or cannot give instructions
TALE VIDEO 8
"Children have a fundamental right to participate in justice proceedings, and that means that they also have the right to be informed and to be heard."
Helen Stalford.
In some legal contexts there is specific statutory guidance on best interests and ascertaining the wishes and feelings of children, such as family proceedings, social care, or immigration proceedings.
[The] concept of the child’s best interests is flexible and adaptable. It should be adjusted and defined on an individual basis, according to the specific situation of the child or children concerned, taking into consideration their personal context, situation and needs. For individual decisions, the child's best interests must be assessed and determined in light of the specific circumstances of the particular child.
Guidelines on Child Friendly Justice (III. Fundamental Principles, B(2)
In assessing the best interests of the involved or affected children:
(a) their views and opinions should be given due weight;
(b) all other rights of the child, such as the right to dignity, liberty and equal treatment should be respected at all times;
(c) a comprehensive approach should be adopted by all relevant authorities so as to take due account of all interests at stake, including psychological and physical well-being and legal, social and economic interests of the child.
Guidelines on Child Friendly Justice (III. Fundamental Principles, A(1)
(1)The right of all children to be informed about their rights, to be given appropriate ways to access justice and to be consulted and
heard in proceedings involving or affecting them should be respected. This includes giving due weight to the children’s views
bearing in mind their maturity and any communication difficulties they may have in order to make this participation meaningful.
(2) Children should be considered and treated as full bearers of rights and should be entitled to exercise all their rights in a manner that takes into account their capacity to form their own views and the circumstances of the case.
Key points on how to uphold children's rights when the child is not instructing
Ensure that your client is aware from the outset of your obligations in respect of promoting and protecting the rights of any children concerned, particularly as regards best interests and the right to participate.
Encourage the adult to keep the child informed of progress on the case and to support the child in contacting you or another relevant justice professional directly, as appropriate.
Take additional steps to communicate directly with the child yourself to ensure that they are aware of progress on the case and of opportunities to make their wishes, knowledge and feelings known to you.
Useful references
- The Solicitors Regulation Authority Providing services to people who are vulnerable (March 2016). Note that this guidance does not contain any examples relating explicitly to children but acknowledge that ‘age’ is an indicator of vulnerability.
- Experiences of Consumers who may be vulnerable in family law: A report for the Solicitors Regulatory Authority, March 2017
- On clarifying the disctinction between children’s incapacity to instruct and their incapacity to determine what is in their best interests, see D Archard and M S kivenes, ‘Balancing a Child’ s Best Interests and a Child’ s Views’ (2009) 1(7) International Journal of Children’ s Rights 1.
- Coram Children’s Legal Centre, ‘Best Interests of the Child in Immigration and Asylum Law’ Migrant Children’s Project Fact Sheet, May 2017
- CAFCASS, My Wishes, Needs and Feelings: Guidance for Practitioners.
- For another example of a glossary adapted to immigration and asylum proceedings that could be adapted to a child friendly version see – H. Crawley ‘Working with children and young people subject to immigration control: guidelines for best practice’ Second edition, 2012., published by ILPA at p.119.
- Syd Bolton, Kalvir Kaur, Shu Shin Luh, Jackie Peirce and Colin Yeo, Working with refugee children Current issues in best practice, ILPA (May2011)
- Tribunals Judiciary, Practice Direction First Tier and Upper Tribunal ‘Child, Vulnerable adult and sensitive witnesses’, 30th October 2008 (contained in Annex 2).
- Tribunals Judiciary, Joint Presidential Guidance Note No 2 of 2010, ‘Child, vulnerable adult and sensitive appellant guidance’
- SRA 2016 Providing services to people who are vulnerable And Ministry of Justice (2011) ‘Achieving Best Evidence in Criminal Proceedings Guidance on interviewing victims and witnesses, and guidance on using special measure’ CPS, Dept for Education, Dept for Health and Welsh Assembly Government
- Arthur, R. Giving effect to young people’s right to participate effectively in criminal proceedings(2016) Child and Family Law Quarterly 28, 3, 223-238
- The UN Committee on the Rights of the Child has also expressed concern that many children feel they are not listened to by judges and other professionals working with children in conflict with the law: United Nations Committee on the Rights of the Child, Concluding observations on the fifth periodic report of the United Kingdom of Great Britain and Northern Ireland (UNCRC, 2016), at para 29.
- ‘Working with Refugee Children’ (May 2011) See in particular chapter 2 and their interesting presentation of ‘cognitive interviewing’ at p.55 onwards
- Police Training on Child Rights & Child Protection Manual of the Consortium for Street Children. You will find some useful tips in here that can be applied to interviewing vulnerable groups in a legal context.
- Ministry of Justice Achieving Best Evidence in Criminal Proceedings: Guidance on Interviewing Victims and Witnesses, and Guidance on Using Special Measures March 2011. See in particular ther material on 'phased interviewing'.
- Floriana Grasso, Katie Atkinson, Phil Jimmieson, 'In My Shoes - A Computer Assisted Interview for Communicating with Children about Emotions' (2013) Humaine Association Conference on Affective Computing and Intelligent Interaction (ACII); Geneva, Switzerland: IEEE.
- Penal Reform International 'Protecting children’s rights in criminal justice systems' (2013)
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CAFCASS Family Justice Young People’s Board - top tips (presented by children and young people in video format):
- Sasha’s top tips for best practice on working with children and young people in the family justice proces
- Matthew’s top tips for interviewing children with autism
- Aleesha’s top tips for working with children and young people with a disability
