Children, Autonomy and the Courts : Beyond the Right to Be Heard [1 ed.] 9789004355828, 9789004355811

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Children, Autonomy and the Courts

Stockholm Studies in Child Law and Children’s Rights Series Editor Said Mahmoudi (Stockholm University) General Editor Pernilla Leviner (Stockholm University) Editorial Board Philip Alston (New York University) Ursula Kilkelly (University College Cork) Yanghee Lee (Sungkyunkwan University) Marta Santos Pais (United Nations) Kirsten Sandberg (University of Oslo) Julia Sloth-Nielsen (University of the Western Cape and Leiden University)

volume 3

The titles published in this series are listed at brill.com/sscl

Children, Autonomy and the Courts Beyond the Right to be Heard By

Aoife Daly

leiden | boston

The Library of Congress Cataloging-in-Publication Data is available online at http://catalog.loc.gov lc record available at https://lccn.loc.gov/2017049980

Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/brill-typeface. issn 2405-8343 isbn 978-90-04-35581-1 (hardback) isbn 978-90-04-35582-8 (e-book) Copyright 2018 by Koninklijke Brill nv, Leiden, The Netherlands. Koninklijke Brill nv incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi, Brill Sense and Hotei Publishing. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill nv provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, ma 01923, usa. Fees are subject to change. This book is printed on acid-free paper and produced in a sustainable manner.

For my brother Colm and my son Cian, two children who have taught me so very much.

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Contents Foreword XI Preface XIII A Child-Friendly Summary Xv Acknowledgments Xvi Introduction: Children, Autonomy and the Courts: Beyond the Right to be Heard 1 1 The Argument in Favour of Prioritising Children’s Autonomy in Best Interest Proceedings 1 2 The Problem with Best Interest Proceedings 4 3 Introducing the Children’s Autonomy Principle 9 4 The Aim of this Book: Embedding Children’s Autonomy in Official Decisions 11 5 Overview of this Book 14 1 A Proposal: Replace the ‘Right to be Heard’ with a ‘Children’s Autonomy Principle’ 15 Introduction 15 1 Children and Proceedings: Is Article 12 Effective or is it Just Rhetoric? 17 2 The Obscured Autonomy Idea in the crc 21 3 Let’s Talk about Autonomy Instead of a Right to be Heard 30 4 Do Children Want Autonomy in Proceedings? 36 5 Why the Text of crc Article 12 is Flawed 43 6 The Right to be Heard is a Right Particular to Children: Due Process and Fair Trial Rights 58 7 Comparison with Legal Rights for Adults with Cognitive Impairment 63 8 Concluding Thoughts on the Validity of the ‘Right to be Heard’ in Proceedings 67 2 The Children’s Autonomy Principle and the Best Interest of the Child 71 Introduction 71 1 The ‘Children’s Rights’ Age: The Legal Journey and the Best Interest Principle 73 2 The Best Interest Principle: Focusing on the Child 80

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3 Where Should the Limits of the Best Interest Principle Lie? 90 4 The Best Interest Principle in Practice 97 5 The Interests of Which Children? 102 Concluding Thoughts on Autonomy in the Context of the Best Interest Principle 112 3 The ‘Liberal Ideal’: Autonomy, Capacity and the Adult/Child Divide 115 Introduction 115 1 Introducing Autonomy 118 2 What Does ‘Autonomy’ Actually Mean? 122 3 Self Determination Theory: Autonomy as Crucial to Well-being 132 4 Is it so Obvious that Children Should be Denied Legal Autonomy? 138 5 What We Can Learn about Autonomy from Medical Law 146 6 Children’s Autonomy in Medical Law (Compared to Other Areas of Law): A Different Ball Game? 162 7 Developmental Psychology and Children’s Decision-Making Abilities 175 Conclusions on Children and Autonomy 189 4 Ensuring Good Processes for Children through Respect for Autonomy 192 Introduction 192 1 Provision at National Level for the Right of Children to be Heard in Best Interest Proceedings: Being Heard is Not Seen as a Right 194 2 Providing the Opportunity to be Heard: Too Little Too Late? ‘Capability’, Being Heard ‘Freely’ and the Issue of Resources 208 3 Do Children Enjoy the Right to be Heard the Way they Wish? Representation, Judicial Interviews and Due Process 235 Concluding Thoughts on the Process of the Right to be Heard 277 5 ‘Weighing’ Views: The Right to be Heard Does Not Allow Children to Sufficiently Influence Outcomes 280 Introduction 280 1 The Right to be Heard is Not Making a Sufficient Difference 283 2 The Right to be Heard Has Benefited Some Older Children 318 3 Younger Children’s Wishes Devalued 324 4 Why the Right to be Heard Gives Children Little Influence on Outcomes 325

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5 Concluding Thoughts on the Inability of Children to Influence Outcomes 345 6 Putting the Autonomy Principle into Practice: Moving from a Focus on ‘Competence’ to One on Significant Harm 350 Introduction 350 1 Justifying a Focus on Significant Harm 352 2 Redefining Harm: Repressing Autonomy as Harmful 355 3 Significant Harm in the Context of Respect for Children’s Autonomy 363 4 The Concern that Children Will be Pressured or Manipulated in Proceedings 372 5 The Complexity of Reality: Resources and Other Obstacles 380 6 The Process of the Children’s Autonomy Principle and Its Application 387 Concluding Thoughts on a Focus on Significant Harm 390 7 Autonomy Support: Embedding the Children’s Autonomy Principle in Good Systems 393 Introduction 393 1 A Different Approach for Legal Systems: Children as Equals 396 2 Balancing Autonomy and the Integrity of the Family 404 3 Not Just Providing an Opportunity: Encouraging and Assisting 409 4 Autonomy Support: Structuring Respect 418 5 Systems Suitable for Autonomy Support 423 Conclusions on Embedding the Children’s Autonomy Principle in Good Systems 431 Conclusion 434 1 Recognising that Children Deserve More than a Right to be Heard 434 2 Prioritising Children’s Autonomy in the Courts: Moving Beyond a Right to be Heard 436 3 Reframing the Best Interest Principle to Explicitly Include Autonomy 437 4 Respecting Families and Supporting Autonomy 439 5 Reframing Systems for Best Interest Proceedings 439 Index 443

Foreword There has been a tendency to neglect the moral and consequently the legal status of children in policy, law and civil society. There was no real discussion of children’s rights until John Locke and Rousseau, and no substantial advocacy of them until well into the nineteenth century. This saw the end of the chimney-sweep and the beginnings of compulsory education. Courts and penal institutions designed for the needs of the young were created. The ostensible rationale was protection. Children’s rights were welfare-oriented until well into the twentieth century, and there was little space for notions of children as autonomous beings. There was negligible attention to the fact that they might have views, wishes and ideas about what was best for themselves. It was thinkers like Kate Douglas Wiggin, Ellen Key and, most significantly, Janusz Korczak who concluded that we needed to take children’s rights seriously. In 1983 I proposed ‘liberal paternalism’ for children which sought to confine paternalism “without totally eliminating it”. In England, the watershed decision was the Gillick case, a House of Lords ruling in 1985. In global terms the most significant event was the un endorsement of children’s rights in the form of the Convention on the Rights of the Child in 1989. This was a real achievement: no longer was it respectable to parrot the sentiment that, as Onora O’Neill put it, a child’s main remedy was to grow up. It was no longer very strange to think of children as rights-holders; to assume that they were deserving of a say, or of ‘participation’ in matters affecting them. The crc is often broken-down into three constituent parts, the so-called ‘3 Ps’. Protection is still there, as is the provision for welfare. But it is the third P to which greatest significance attaches. Participation rights, via the Article 12 right to be heard, are the linchpin of the Convention, recognising that it is children’s agency as individuals which is often so key to the enjoyment of their rights. Yet children’s rights remain aspiration rather than reality, and much work needs to be done. As ground-breaking as Article 12 has been, serious questions arise as to its efficacy as a framework for children’s rights in many arenas. One such arena is where court decisions are made about children. Article 12(2) states that children should be heard (and their views given due weight) in proceedings. This is the area which Aoife Daly has set-out to examine in this monograph. One of the remaining crucial tasks in children’s rights is to come to terms with the full meaning of each article of the crc and how it is playing out in practice. In Aoife Daly’s book it is argued with theoretical and empirical rigour that Article 12 is not facilitating children to influence proceedings in which

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their best interests are being determined. It is proposed that the notion of ­autonomy – that we should all have the freedom to make our own decisions to the extent possible – should instead be fundamental to the status of children in such proceedings. The book suggests that, if adults deserve to have choices to the extent possible in their private lives, why not children? If children have wishes, should overriding those wishes not be treated with the utmost seriousness by the courts? Should they not be assisted in making decisions themselves? This proposal to shift the focus from simply hearing children to actually seeking to uphold their autonomy is one which would serve to better acknowledge children as rights-holders in proceedings affecting them. It is one which should be considered by policy-makers, judges and other practitioners. It raises questions as to whether Article 12(2) should be interpreted in a way which better emphasises autonomy, or whether instead it should be replaced with text which explicitly prioritises autonomy. This monograph is the fullest account of Article 12 in the context of legal proceedings, highlighting moral and legal questions and proposing some radical solutions. It is thorough, perceptive and novel and will set a benchmark for future analyses of children’s rights in the context of the courts and beyond. Professor Emeritus Michael Freeman fba ucl Editor of The International Journal of Children’s Rights June 2017

Preface It is with great pleasure that we present this third volume of the Stockholm Studies in Child Law and Children’s Rights series, published under the auspices of the Stockholm Centre for the Rights of the Child at Stockholm University, Sweden. This series, in aiding and promoting research in the field of child law and children’s rights globally, seeks to provide timely and high-quality analyses of all issues relating to the interface of children and adolescents with their surrounding societies. The focus is on legal research results, but multi-disciplinary child-right-related studies also have an obvious place in the series and the aim is to publish research not only from Sweden and the other Nordic countries but from around the world. This present volume by Aoife Daly addresses the question of whether there is a gap between rhetoric and reality when it comes to the right of children to be heard in proceedings affecting them enshrined in Article 12(2) of the un Convention on the Rights of the Child. In this book, an alternative is proposed – a ‘children’s autonomy principle’: “In legal decisions in which the best interest of the child is the primary consideration, children should get to choose – if they wish – how they are involved (process autonomy) and the outcome (outcome autonomy) unless it is likely that significant harm will arise from their wishes.” This idea emanates from extensive analysis of global practice which indicates that hearing children in proceedings is not in fact often interpreted as a right. Aoife Daly argues persuasively that it is instead seen as a possibility where convenient, often only where it is deemed helpful to the court, and sometimes eclipsing due process rights such as attendance at court. When it comes to influencing decisions there are even greater obstacles for children. It is all too easy for adults to ignore the fact that under Article 12 they are supposed to accord ‘due weight’ to children’s views, it is argued, not least because nobody seems to know what this should involve. Children’s wishes, if they are fortunate enough to have had the opportunity to express them, are easily overridden in their apparent ‘best interests’. It is suggested in this radical and thorough study that the right to be heard has not served children well in proceedings about their best interests and therefore a new concept is necessary. ‘Autonomy’ is ubiquitous in a number of areas including medical law (where, it is pointed out, children’s wishes are taken more seriously), the rights of people with disabilities, and the rights of parents in respect of their children. It is argued convincingly that this concept

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should even be employed in the field of the rights of the child to gain greater appreciation and respect for children in proceedings about their best interests. The book contains not only this conceptual point, but also very practical suggestions and arguments for the employment of autonomy in practice. The level of ‘harm’ which should be present before children’s wishes can be overridden is outlined, as is the level of support and space which children may need to boost their decision-making. Whilst there would still be room for adult discretion in a system which prioritises autonomy, Aoife Daly argues, at least adults would have more explicit obligations to provide support to children, to clearly consider autonomy and to better justify overriding wishes. This would likely transform thinking about children, and give them a place of greater prominence in proceedings which are supposed to be about them. This exciting book is a refreshing and much-needed study of the right to be heard in proceedings. It sets a new direction for the concepts of best interests, hearing children and children’s autonomy. Even where legal change to more explicitly acknowledge children’s autonomy is not immediately forthcoming, this book demonstrates that there is much that practitioners, academics and others can do to ensure that children’s autonomy is given the recognition it deserves when children’s best interests are being determined by the courts and other authorities. Said Mahmoudi Professor of international law Pernilla Leviner Associate professor of public law

A Child-Friendly Summary – Sometimes courts decide where children will live and who they will see. – There is a law that says children should have a say in this. – I think the law is not working well enough. – Courts often do not hear children and often make them do things they do not want to. – I think the law should work differently. – Because adults get to choose where to live and who they see, so should children unless there is danger. – Having choices and making up your own mind is usually very good for you. – Children should have help to make choices if they want it, though.

Acknowledgments There are many family, friends, children, colleagues and other professionals who have contributed enormously to the completion of this book. In particular I would like to thank supportive friends and colleagues from various places who have provided support, feedback, conversations and muchneeded humour at various important junctures. A big thank you to those at the Irish Centre for Human Rights including Dr. Kathleen Cavanaugh, Professor Bill Schabas, Professor Ray Murphy, Dr. Andrea Breslin, Dr. Eadaoin O’Brien, Dr. Anthony Cullen, Dr. Roja Faraezi, Niamh Hayes, Dr. Joe Powderly, Dr. Edel Hughes, Dr. Michael Kearney, Dr. Yvonne McDermott; those at the Children’s Research Centre including Professor Sheila Greene, Dr. Jennifer Cronly, Dr. Muireann Ni Raghallaigh, Dr. Leslie Sherlock and Dr. Lindsey Garratt, and those at Save the Children Scotland including Douglas Hamilton and Laurie Gayle. I would like to particularly thank friends and colleagues at the School of Law and Social Justice at the University of Liverpool including Dr. Michelle Farrell, Professor Michael Dougan, Dr. Paula Case, Dr. Ellie Drywood and Dr. Mike Gordon, and students David Lane, Rachel Heah, Nawal Belkalem, and Meta Wright. I would also like to thank Professor Geoff Gilbert, Professor Maurice Sunkin and Karin Frode at the School of Law and Human Rights Centre at the University of Essex. I am very grateful to my good friend Associate Professor Pernilla Leviner of the University of Stockholm for invaluable feedback on early drafts, and thank you also to co-editor Professor Said Mahmoudi for his very useful input. I am delighted that this book is part of such a worthy edited series. I am also hugely appreciative of the support of Professor Helen Stalford at the University of Liverpool. She is a wonderful colleague who inspires endeavour and ambition. She has had an enormous influence on this book. There were many who assisted me greatly during the Ph.D. research on which parts of this book are based. I would like to thank my thesis supervisor at Trinity College Dublin, Associate Professor Liz Heffernan. I am grateful to Professor William Binchy, Professor Neville Cox, Associate Professor Eoin O’Dell and external examiner Associate Professor Patty Fitzsimmons of the University of San Francisco. I would also like to thank all of the judges and professionals who were hugely generous with their time; leaving a life-long influence on my thinking. Three individuals in particular who have supported my research in Ireland are Judge Conal Gibbons, solicitor Pól Ó Murchú, and Irish Special Rapporteur on Child Protection Dr. Geoffrey Shannon. I am also very grateful for the support of a scholarship from the Irish Research Council for the Humanities and Social Sciences which I received 2009–2010 as well as scholarships from Dun Laoghaire-Rathdown County Council from 2006–2009.

Acknowledgments

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A special thank you goes to my family. Thank you in particular to my parents who have always been so supportive of my work. I am so appreciative of the encouragement of my sister Orla Daly and her partner Mark Kane, and also that of Deirdre Hannigan and Freya Coogan. A large part of my thinking has been encouraged by my brother Colm, who strives to exercise autonomy and to enjoy life to the full in spite of severe health problems. My learning has also been facilitated hugely by my exuberant three year old son Cian, who is very interested in a book about how “adults should listen to children” – this will no doubt come back to haunt me. The greatest thanks goes to my ever-supportive husband Alan Connolly whose unreserved assistance and enthusiasm for this book ensured that it reached the finish line. Thank you with all my heart.

Introduction: Children, Autonomy and the Courts: Beyond the Right to be Heard My Judge thanked me for coming but said they were capable of making decisions without me.1

∵ 1

The Argument in Favour of Prioritising Children’s Autonomy in Best Interest Proceedings

The ‘right to be heard’ enshrined in Article 12(1) of the un Convention on the Rights of the Child (crc) is possibly the most discussed, and certainly the most controversial, principle in the arena of children’s rights. This book initially began as an attempt2 to ascertain what such a right actually means and what good examples of implementation might look like in the context of best interest proceedings – legal proceedings in which decisions are made in the best interest3 of the child (for example ‘residence’ and ‘contact’ arrangements4). In the process, I determined, however, that whilst being ‘heard’ might suffice in, for example, the political arena, the right to be heard is ill-suited to application in best interest proceedings. In liberal democracies5 1 Nineteen year old young man speaking of his experiences of family proceedings as a child, quoted in Jennifer McIntosh, “Four Young People Speak about Children’s Involvement in Family Court Matters” 15 Journal of Family Studies 98 (2009), at 101. 2 This book is based on the Ph.D. thesis: Aoife Daly, The International Legal Right of Children to be Heard in Civil Law Proceedings Affecting them (Unpublished Ph.D. Thesis, Trinity College Dublin, 2010). 3 I prefer the ‘best interest of the child’ (singular) although it is necessary to use ‘best interests’ (plural) occasionally, for example when referring to the best interests of children as a group, or when various interests are being considered. 4 ‘Contact’ and ‘residence’ is the terminology used in England and Wales, although amending legislation (the Children and Families Act 2014) has replaced these words with the c­ atch-all term ‘child arrangement orders’. I prefer the terms ‘contact’ and ‘residence’ to ‘access’ and ‘custody’ (used in other jurisdictions) as the latter words have greater connotations of ­children as property. 5 That is, states in which individual freedoms and the rule of law are ostensibly upheld. See further Jeffrey Kopstein, Mark Lichbach and Stephen Hanson, Comparative Politics: Interests, © koninklijke brill nv, leiden, ���� | doi 10.1163/9789004355828_002

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Introduction: Beyond the Right to be Heard

i­ndividual freedom is upheld as the ultimate ideal; yet the right to be heard provides ­potentially little respect for children’s legal autonomy, and too many excuses to override children’s wishes, because it still leaves adults (primarily judges) with all of the discretion, and therefore all of the power. It results, for example, in children being denied due process rights in proceedings concerning their6 own legal interests,7 and in children being ordered by courts into relationships they do not want.8 When asked, most children say they want to be involved in proceedings, they want to influence decisions, and some feel strongly about determining the outcome.9 I argue that we need to move beyond the right to be heard, therefore, and to focus instead on the concept of autonomy. This book engages in an analysis of what autonomy means, how it underpins liberal democracy10 and the individual’s sense of dignity and well-being,11 and its consequences for children’s legal rights. Detailed analysis of case law

6 7

8

9

10

11

Identities, and Institutions in a Changing Global Order (4th edn, Cambridge University Press, 2014). For a list of such states, see that produced in Freedom House, Freedom in the World 2016 (Freedom House, 2016), at 12–3. The report categorises 86 states as ‘free’; 59 as ‘partly free’ and 50 as ‘not free’. At 13. In order to avoid the awkward ‘him/her’ situation, I will refer to hypothetical people as ‘they’. See for example P.–S. (Children) [2013] EWCA Civ 223 and O. (A Child) [2012] EWCA Civ 1576 in England and Wales; Gordon v Campbell [2015] NZHC 1264 in New Zealand; In Re A.G., Slip Opinion No. 2014-Ohio-2597 in the US, and Canada’s Comeau v Comeau, 2013 ONSC 6762; all considered in Chapter 4. See for example many cases considered in Chapter 5 including K. (Children) [2016] EWCA 99; M. v B. [2016] EWHC 1657; Re H.–B. [2015] EWCA Civ 389; and Re E. (Children) [2011] UKSC 27 in England and Wales; US case In Re Marriage of Winternitz, 2015 DJDAR 3526, and Canadian cases D’Abruzzo v Giancola, 2017 ONSC 2349 and Letourneau v Letourneau, 2014 ABCA 156. See further Chapter 1, Section 4. Although children have not been formally consulted for this book, extensive research of existing consultations and interviews has been conducted. Direct quotes from children are presented throughout this research. Formal consultation explicitly on the matter of the proposed children’s autonomy principle is the next step in the research on this topic. See for example Jonathan Beever and Nicolae Morar, “The Porosity of Autonomy: Social and Biological Constitution of the Patient in Biomedicine” 16 The American Journal of Bioethics 34 (2016) and Viv Ashley, “Philosophical Models of Autonomy” Essex Autonomy Project Green Paper Report (Essex Autonomy Project, 2012), at 1. Edward Deci and Richard Ryan, “Autonomy and Need Satisfaction in Close Relationships: Relationships Motivation Theory” in Netta Weinstein, ed, Human Motivation and Interpersonal Relationships (Springer, 2014).

Introduction: Beyond the Right to be Heard

3

and research, both first hand12 and secondary,13 makes it clear that crc Article 12 has not assisted children in gaining much power in proceedings in which their best interests are decided. The reluctance to prioritise children’s wishes in proceedings is based strongly on fears of undermining parents, yet, ironically best interest proceedings arise because parents cannot agree (private law), or because children are likely not safe with them (child protection). The reluctance is also based on assumptions that children are incapable, dishonest or irresponsible decision-makers – assumptions which are not borne out by the evidence.14 The introduction of a ‘right to be heard’ in proceedings reflects to some extent a misplaced focus and a misunderstanding about childhood; even about the human condition. This is because as it still permits judges to override children’s wishes in their apparent ‘best interests’ it supports rather than challenges a general assumption in the law that adults are totally autonomous and that children are not at all, when the reality is much more fluid and complex. This assumption both denies children their individuality and overresponsibilises (and sometimes neglects) adults.15 12

13

14

15

As part of completion of a Ph.D. thesis I conducted interviews with professionals in Ireland, and attended District Court proceedings (in Dublin and in the courts of three cities outside of Dublin) from 2008–9, see note 2 above. I spent approximately 24 days observing child care proceedings and nine days observing family law proceedings. Approximately 17 professionals (including solicitors, barristers, guardians ad litem and other professionals) were interviewed. Reference to this research will be made in particular in Chapters 4 and 5. The dates of proceedings in Dublin will not be cited in order to protect anonymity of all involved – professionals in Dublin are more easily identifiable than elsewhere in the country for various reasons. Searches were conducted of relevant databases for case law in Australia (http://www .familycourt.gov.au), Canada (www.canlii.org/en/index.html), England and Wales (www .jordanpublishing.co.uk), Ireland (www.courts.ie), New Zealand (https://forms.justice .govt.nz), Scotland (Westlaw database references to relevant legislation), South Africa (HYPERLINK “http://www.centreforchildlaw.co.za/cases/south-african-cases” www.­cent reforchildlaw.co.za), the US (http://caselaw.findlaw.com/), and the most relevant cases were chosen for analysis. Research assistants with language expertise were employed for the identification of relevant cases in France, Norway and Sweden. Most case examples are drawn from England and Wales for language and practical reasons (I am based in this jurisdiction, and detailed judgments are provided in the higher courts) and case law cited in this book is from this jurisdiction unless otherwise identified. Admittedly this enquiry is Anglo-centric. It is intended however that the theories and arguments of this book will be applicable to some extent in any jurisdiction. This is considered in detail in Chapter 3, particularly in Section 2.3. Furthermore, adults are far from perfect decision-makers – Donald Trump has just been elected President of the us at the time of writing. See for example Jonathan Herring, Vulnerable Adults and the Law (Oxford University Press, 2016); Jonathan Herring and Jesse Wall, “Autonomy, Capacity and Vulnerable

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Introduction: Beyond the Right to be Heard

As adults, at the end of the day, we pride ourselves on our autonomy. In reality it is a limited, relational type of autonomy where we are restricted by our circumstances, and often prioritise the interests of our loved ones as we do our own. What we do not seem to realise is that children are no different in this regard – they pride themselves on this kind of autonomy also.16 Therefore it is argued in this book that in proceedings about children’s best interests, the autonomy of children should come first. The benefits of accepting this are several. Children will genuinely become the most important individuals in proceedings concerning them. True influence on outcomes will be enjoyed. Parents will be less likely to resort to legal proceedings, because legal outcomes will be easier to predict (as they will be more likely to be in line with children’s own wishes17). An indirect benefit may be that children will be taken more seriously in their own families at difficult times, such as when parents are separating. Possibly even more beneficial will be the likelihood that children will be ‘heard’ and subsequently ignored less frequently – something which leaves them disillusioned and upset.18 It will be argued in this book that a focus on autonomy is more likely to give children real influence on both process and outcomes in best interest proceedings. In this introductory section, an overview is provided of some of the main ideas and concepts considered throughout. 2

The Problem with Best Interest Proceedings I have been writing letters to the judge. He answered, but he didn’t really listen.19

16 17

18 19

Adults: Filling the Gaps in the Mental Capacity Act” 35 Legal Studies 698 (2015), at 698; Charles Foster, Choosing Life, Choosing Death: The Tyranny of Autonomy in Medical Ethics and Law (Hart, 2009); and Martha Fineman, “Vulnerable Subject: Anchoring Equality in the Human Condition” 20 Yale Journal of Law and Feminism 1 (2008). See further Chapter 3. I prefer the term ‘wishes’ compared to ‘views’ which is relied upon in crc Article 12, as a ‘wish’ implies a potential decision, whereas a ‘view’ does not. I rely more on the concept of a child’s wishes therefore, though I sometimes use the term ‘views’ where that is more appropriate to the context (for example where this is the term used in a particular law or case). See Chapter 4, Section 2.3.3. Eleven-year-old girl in Belgium, quoted in Sofie Maes, Jan De Mol and Ann Buysse, “Children’s Experiences and Meaning Construction on Parental Divorce: A Focus Group Study” 19 Childhood 266 (2001), at 275.

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2.1 The Indeterminacy of the Right to be Heard in Proceedings crc Article 12, which contains the ‘right to be heard’, stipulates that: 1. States Parties 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. 2. For this purpose, 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. The inclusion of this provision was the first time at international law level that there had been an attempt to deal with the primary dilemma relating to children’s rights – that adults usually make decisions on children’s behalf. The law generally understands ‘children’ to include all those under the age of 18 years (as does crc Article 1), and individuals in this group as lacking legal capacity.20 crc Article 12 is heralded as a significant step forward for the recognition of children’s rights. The noble aim of Article 12 is to account for the reality that decision-making ability is not binary; whereby one day an individual lacks those abilities, and overnight (that is, on reaching 18 years) suddenly gains them. It recognises that obtaining decision-making ability is a gradual process, and that the guidance and control of children by adults should steadily decrease in accordance with this process.21 crc Article 12 does this by stipulating that children have a right to be heard, particularly in proceedings (Article 12[2]). An accompanying right that those views will be given “due weight” aims to further strengthen the process in that it is insufficient just to “hear”; which implies that children’s views must have some level of influence.22 However the form that such a process should 20

Priscilla Alderson, The Politics of Childhoods Real and Imagined (Routledge, 2016), section entitled ‘Childhood Youth and Politics’. I will use the term ‘children’ to refer to all under-18s as I am exploring systems and laws which also generally categorise under-18s accordingly. It is acknowledged that many adolescents would not identify as ‘children’. Bhaba argues that using the term neglects adolescents: Jacqueline Bhabha, “Introduction: The Importance of a Rights-Based Approach to Adolescence” in Jacqueline Bhabha, ed, Human Rights and Adolescence (University of Pennsylvania Press, 2014). 21 See crc Article 5 which recognises the principle of the evolving capacities of the child. 22 Committee on the Rights of the Child, General Comment No. 5: General Measures of Implementation of the Convention on the Rights of the Child CRC/GC/2003/5 (27 Nov. 2003), para. 12.

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Introduction: Beyond the Right to be Heard

take – whether they should enjoy legal representation for example, or meet the judge – and the extent of children’s influence on outcomes, are left unclear in the text of Article 12. This book points to the problems of implementation that this uncertainty has presented; problems which have rendered the right ill-defined and ineffective.23 In fact, Article 12 has actually compounded the low status accorded to children in their own proceedings, whilst permitting adults to claim they are committed to children’s rights because of the rhetoric of the right of children to be heard. Children themselves are frequently left upset and bewildered by proceedings which may exclude them completely, or alternatively include them only to override their stated wishes (often without explanation).24 An alternative approach is proposed in this book; one which would better facilitate children’s involvement through prioritising their autonomy in both the process of hearing children and in the decision itself. The book builds on theories such as Freeman’s ‘liberal paternalism’25 which sought to confine paternalism for children “without totally eliminating it”;26 whilst reconceptualising the rationale of modern legal decisions about children’s best interests; proposing concrete answers to some difficult questions about how to approach vague terms such as ‘due weight for children’s views’ and ‘capacities’. 2.2

What are ‘Best Interest Proceedings/Decisions’? They are there to help; they try to make you and others safe, they are trying to help you.27

I will argue in this book that where courts make decisions in which a child’s best interest is the primary factor, they are essentially rendering ‘substitute decisions’28 on matters which adults would decide for themselves. Such 23

24 25

26 27 28

Attempts to more firmly define the terms, for example through General Comments, have provided limited assistance in this regard. See further Chapter 1, Section 5 and Chapter 5, Section 1.2. See Chapter 5. Freeman now prefers the term ‘limited’ paternalism. See Michael Freeman, A Magna Carta for Children?: Rethinking Children’s Rights (forthcoming, Cambridge University Press, 2017). Michael Freeman, The Rights and Wrongs of Children (Frances Pinter, 1983), at 55. Fifteen-year-old boy quoted in Children’s Hearings Reform Team, The Views of Children (Children’s Parliament/Children’s Hearings Reform Team, 2010), at 14. See in the context of adults with disabilities Mary Donnelly, “Best Interests in the Mental Capacity Act: Time to Say Goodbye?” 24 Medical Law Review 318 (2016) and see further consideration of this point in Chapter 1, Section 7.

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7

­judgments are most commonly given in the arenas of family law and child protection, where decisions must be made about where children will live and with whom they will have relationships.29 The best interest principle dictates that it is the best interest of the child, rather than the interests of anyone else, that determines the outcome of a case.30 It is not to be merely a consideration – that is, one factor to weigh against others, as happens in criminal and immigration law.31 I am arguing in this book that the defining feature of best interest­ decisions is therefore that it is a decision which is being taken because the individual is a child. If the individual was instead an adult, the case would not arise as they would decide the matter for themselves. This makes the principle, and therefore the decision, extraordinarily paternalistic – especially because it is not just very young children to whom this is applied – it is generally possible for courts to apply such decisions to all under the age of 18 years.32 29

30

31

32

They may also include, however, court decisions such as those made about children’s property and medical treatment. Medical law decisions take a strange position in this enquiry – they are simultaneously included and yet somewhat external. They are included because they are technically best interest decisions, but external because children’s consent to medical treatment is usually at issue and this is taken more seriously than children’s wishes in other areas of the law. Medical law cases are therefore primarily used for comparison purposes in this book. These issues are considered in detail in Chapter 3. The best interest principle is prominent across liberal democracies. See for example Fiona Raitt, “Judicial Discretion and Methods of Ascertaining the Views of a Child” 16 Child and Family Law Quarterly 151 (2004), at 151. The principle of the ‘best interest’ or ‘welfare’ of the child as the ‘primary’ or ‘paramount’ consideration is encapsulated in the legislation of numerous jurisdictions. See for example Children Act (England and Wales) 1989, Section 1. Some distinguish between ‘primary’ and ‘paramount’ as noted in Chapter 1, Section 2.2, but my point is that children’s best interests determine the outcome in these proceedings – and if they do not, they should. See further Chapter 1, Section 2.2. It is acknowledged that for some purposes the limit is set at age 16 years – see G. (A Child: Intractable Contact) [2013] ewhc B16 in which the contact order was made to last until the child’s 16th birthday. Yet the courts of England and Wales, for example, have frequently imposed medical treatment on unwilling 17 year olds. See Re P. (A Child) [2014] ewhc 1650 in which it was determined that it was permissible to override the consent of a 17 year old patient who was deemed to have capacity. Notably in California an unwilling 17 year old cancer patient was treated under armed guard in 2015. ahc Media, “Ethical Controversy Erupts over Minors’ Autonomy” ahc Media (1 Mar. 2015). Available at: https:// www.ahcmedia.com/articles/134767-ethical-controversy-erupts-over-minors-autonomy (last accessed 19 Nov. 2016). In England and Wales it is also possible to incarcerate 17 year olds ‘for their own safety’ even if it is shortly before their 18th birthday, at which point they must be released. See for example W. (A Child) [2016] ewca Civ 804.

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Introduction: Beyond the Right to be Heard

The example of Clare’s case33 lends some substance to this point. Clare is 11 years old and lives with her mother. Her parents have been separated since she was three and have been in a legal dispute about paternal visits for a number of years, during which time Clare has insisted (through the court channels for hearing children) that she does not wish to continue the visits. Her father has not done anything particularly bad, she just does not enjoy spending time with him. At the most recent hearing the court decided that the visits should continue, and Clare is very upset. This is a decision about a personal relationship which Clare would have made herself if she were an adult, but it has entered the legal arena because she is a child, and the decision-maker adults (her parents) are in disagreement. The law is structured in such a way that courts make the decision, and children’s preferences are just one factor of many to consider. It was decided in this case that Clare’s wishes were outweighed in the best interest decision by the presumed value of maintaining the relationship with her father. I argue in this book that this approach – children’s preferences as just one factor of many – is not justifiable. The ‘best interest principle’ used in these cases is extremely paternalistic as it takes children’s decisions from them. This is sometimes appropriate, as some children (infants for example) will need the decision to be taken by another, and some children will not wish to make such a decision. But considering the value placed on personal autonomy in liberal democracies, where children have preferences, this should not just be treated as any other factor. This should at least be considered the most important factor. Yet Article 12 does not require this. Adults ‘hear’ children, and in spite of calls to ‘weigh’ views, nobody actually knows what this means, and consequently little trouble is taken to determine what adequate weight for children’s views should look like. Huge importance is placed on the need to understand, support and value the decision-making of vulnerable adults,34 yet little effort is expended on trying to determine where the courts should and should not uphold children’s decisions. Courts generally do not concern themselves with such matters, and where they do (usually in medical law cases) it is easy to determine that children do not have capacity, because capacity is so little understood.35 This is why we need to focus on 33

34 35

Taken from Kay Tisdall and Fiona Morrison, “Children’s Participation in Court Proceedings when Parents Divorce or Separate: Legal Constructions and Lived Experiences” 14 Law and Childhood Studies: Current Legal Issues 156 (2012), at 165–71. Herring and Wall, note 15, at 698. See Chapter 3 and Michael Freeman, “Rethinking Gillick” 13 International Journal of Children’s Rights 201 (2005), at 211.

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‘­autonomy’– which is after all what is being denied to a child when someone else makes a legal decision on their behalf – in order to bring greater focus and definition to what Article 12(2) is presumably trying to achieve for children, that is, legal proceedings which recognise their dignity and individuality. 3

Introducing the Children’s Autonomy Principle I’d probably say stand up for yourself really.36

There are a number of ways in which the term ‘autonomy’ can be understood.37 Autonomy is primarily understood as the individual’s capacity for self-governance – ‘personal autonomy’. There is a distinction however between (1) autonomy as a capacity to make decisions, including the legal right to take those decisions (for example capacity to consent to medical treatment); and (2) autonomy as an ideal, that is the liberal ideal that we should all have personal autonomy in our lives to the extent possible. It is primarily the latter conception which I am arguing for in best interest proceedings about children. Children need not have identical legal autonomy rights to adults, but instead only be denied them where absolutely necessary. Furthermore, in reality nobody has total autonomy, because of numerous constraints such as those relating to finances, personal abilities, and our relationships with others. If I wished to exercise my autonomy to marry Brad Pitt (single, I understand, at the time of writing) I might not succeed – he might have some objections. I would also face some legal issues in that I am already married. Furthermore I may face some familial opposition on my end. Autonomy is not about always getting what you want; it is primarily about being recognised as having choices to the extent you possibly can, free from undue interference of others, particularly from physical or legal coercion. Autonomy is intimately linked to our environment and our relationships with others, as these relationships are often what define us and determine what our values (and consequently our choices) are. Our approaches to children’s autonomy should involve an understanding of these factors, and this is what the following principle tries to capture. 36

37

Fourteen-year-old boy with experience of family law proceedings, quoted in Gillian Douglas et al., Research into the Operation of Rule 9.5 of the Family Proceedings Rules, 1991 (Department for Constitutional Affairs, 2006), at 99. He was asked what advice he would have for other children in the same situation. See further Chapter 3.

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I would like to propose in this book that we should put in place standards to mitigate the paternalism of best interest proceedings through the children’s autonomy principle which is as follows: Children’s Autonomy Principle: In legal decisions in which the best interest of the child is the primary consideration, children should get to choose – if they wish – how they are involved (process autonomy) and the outcome (outcome autonomy) unless it is likely that significant harm will arise from their wishes. There are, of course, questions which require answering regarding how such a principle could work in practice. Exceptions could be in put place where children do not want this power, where they are very young or where there is explicit pressure on them – these issues are considered in the coming chapters.38 The two main points to highlight at this juncture relate to significant harm and autonomy support. Although a ‘significant harm’ threshold for overriding ­children’s wishes appears to be high, in fact courts regularly accept harm to children where it is perceived to outweigh some more serious harm – leaving­children in inadequate families rather than taking them into care,39 for example, and ordering changes of residence from one parent to another whilst accepting that this will cause great distress.40 If we are to take children’s autonomy seriously then a vague notion of potential future harm (from children missing contact with a parent for example) should not alone be invoked as a reason to override children’s wishes.41 The second important point is that many children will need information and support if their wishes are to play such an important role in proceedings. It is proposed therefore that systems should be adequately resourced to ensure ‘autonomy support’ for children in their involvement in proceedings. ‘Autonomy support’ in the context of best interest proceedings will be taken here to mean non-controlling, impartial information and support to form and/or express views and decisions about a best interest matter.42 The vagueness of Article 12 on how children’s views are to be ‘weighed’ leaves open the possibility of overriding children’s wishes for any and every

38 See in particular Chapter 6. 39 See Re L. (Care: Threshold Criteria) [2007] 1 flr 2050 at para. 50. 40 See t.e. v s.h. and S. [2010] ewhc 192 and Re R. (A Child) [2009] ewhc B38. 41 See Chapter 6. 42 See Chapter 7.

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reason – to achieve ‘contact at all costs’43 for example, or because rejecting ­inoculations is an objectively poor decision.44 Compare these scenarios to cases in which the state is considering interfering with adult autonomy – states do not force adults to have a personal relationship with someone else no matter how beneficial it would apparently be (imagine if parents were forced into contact visits with children against their will). States do not legally compel parents to inoculate their children. In few if any best interest cases do the courts consider the potential harm of coercing children into arrangements they do not want. The application of the children’s autonomy principle would likely mean that children would achieve outcomes in line with their preferences in cases where they resist contact. Some outcomes would remain the same of course – where a child wishes to remain in a dangerous home which is causing them significant harm, for example, their autonomy most likely cannot be upheld.45 But in all cases children would be benefitted – even in cases where children do not achieve the outcome they wish for, they should receive ‘autonomy support’ to help them through the case, they should enjoy ‘process autonomy’46 which means that they should be involved in proceedings in the way they wish (for example if they wish to meet the judge or be present in court), and regardless of the outcome, their autonomy – and therefore their dignity and individuality – should be respected to the highest extent possible. 4

The Aim of this Book: Embedding Children’s Autonomy in Official Decisions [The judge] said that I don’t decide whether I see my dad or not … It was kind of like a warning, this time, I guess.47

43

44 45

46 47

See for example Stephen Gilmore et al., “Contact/Shared Residence and Child Well-Bring: Research Evidence and its Implications for Legal Decision-Making” 20 International Journal of Law, Policy and the Family 344 (2006) and further Chapter 5. F. v F. [2013] ewhc 2683. For this reason many of the examples in this book relate to private family law cases rather than to child protection cases. It is intended however that the points and proposals outlined in this book will be of relevance in at least some aspects of child protection cases, for example when it comes to the process of hearing children, and instances where it is debatable as to whether the threshold for state intervention has been reached. See Chapter 1, Section 8.2. Quote from fourteen year old boy incarcerated overnight by judge for refusing to go on a court-mandated visit with his father. See Jameson Cook, “Teenager Incarcerated for

12

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This book aims to demonstrate that autonomy is crucial to children’s wellbeing, that the best interest principle should involve explicit consideration of autonomy, and that autonomy is not prioritised in crc Article 12, or at the very least in interpretations of Article 12. The book also aims to change attitudes about the adult/child divide and how this arguably manifests in total denial of children’s autonomy rights when best interest decisions are made. It seeks to secure a change of approach on the part of judges primarily, and also others who can influence children’s treatment in the courts, such as social workers, lawyers, and more broadly policy-makers and legislators (who can potentially, of course, secure legal change).48 Parents need not fear that I am seeking to treat children exactly like adults – I am not. I am speaking very particularly about one zone of the law concerning children; that is official decisions in which the best interest of the child is the primary consideration. I am not arguing that children should have a veto in every decision in their lives – at home, at school, or in public. Children should have a greater say in these areas, but this is not the focus of this book, and the children’s autonomy principle which I am proposing is not designed for zones other than those which involve the state, and particularly courts, making decisions about intimate aspects of children’s lives. For one thing, I wish to draw attention to the institutionalisation of the denial of children’s autonomy in the courts; organs of the state which do not just reflect, but also shape, how children are perceived. Secondly, I do not have the scope in this book to consider all of the areas in which children are unjustifiably denied autonomy – they are numerous and the solutions will be complex.49 It is the element of state interference which is a key driver of the children’s autonomy principle which I am proposing. The court may think that it is taking the place of the parent in best interest decisions,50 but it is not. Unlike parents, courts have force of law behind them. It is a power which has on occasion led 48 49

50

Refusing to Visit his Father” Macomb Daily (21 Nov. 2009). Available at www.macombdaily .com/articles/2009/11/21/ (last accessed 12 Dec. 2016). See further Chapter 7. There are some texts in which other areas of children’s autonomy are tackled in some detail. See for example Ian Butler, Lesley Scanlon, Margaret Robinson, Children and Decision Making (Jessica Kingsley Publishers, 2005) for consideration of the family context; Lynn Hagger, The Child As Vulnerable Patient: Protection and Empowerment (Ashgate, 2013) and Claudia Wiesemann, Moral Equality, Bioethics, and the Child (Springer, 2016) for the context of medical treatment; and Hanne Warming, ed, Participation, Citizenship and Trust in Children’s Lives (Palgrave MacMillan, 2013) on the topic of children’s citizenship. This impression has been expressed by judges, for example, in Re G. [2012] ewca Civ 1233; Re S. (Contact: Intractable Dispute) [2010] 2 flr 1517, at para 7; and J. v C. [1970] ac 668, at 722.

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to outrageous outcomes. It has led to children being incarcerated in the us for refusing to obey visitation orders51 – an ironic, though perhaps inevitable, destination of such proceedings because children’s refusals constitute contempt of court. In ‘international abduction’ cases it results in children being forcibly removed by police, often terrified, sometimes across jurisdictions, to parents that they do not wish to see.52 It is difficult to reach any other conclusion than the fact that the best interest principle and its attendant ‘right to be heard’ are drastically failing children in such cases, institutionalising an unjustifiably paternalistic and coercive approach to children’s wishes. I am not suggesting that children be accorded the right to get whatever they wish even in this narrow context. A concept of autonomy necessarily involves acknowledging where individuals are not autonomous and where they require protection, and responding appropriately.53 Nor am I claiming that a focus on autonomy will solve most of the difficulties encountered by children in ­proceedings as, clearly, not all problems relate to children’s wishes. Not all proceedings require a simple yes/no answer. Many cases involve the problems of highly dysfunctional families – problems that authorities cannot solve. Some cases involve numerous types of proceedings – immigration, child protection, private family law – which complicates whether a child’s wish can be upheld.54 I am simply arguing that children can be benefitted by adults adopting a d­ eeper appreciation of what autonomy means in real terms for children in best interest cases. I am advocating a framework in which children’s wishes 51

52

53 54

See Chapter 5, Section 4.2. See also Cook, note 47; Bill Laitner, “3 Kids Ordered to Juvenile Hall After Refusing to Have Lunch with Dad” usa Today (9 Jul. 2015). Available at http://www.usatoday.com/story/news/nation/2015/07/09/judge-jails-kids-refusing-lunch -dad/29940397/ (last accessed 12 Dec. 2016); and In re Marriage of Marshall, 278 Ill.App.3d 1071 (1996), all involving children being incarcerated for refusing to attend contact visits. Children are also sometimes threatened by courts with police to enforce contact or residence orders. See Chapter 5 and Canada cases K.D.S. v G.M.P., 2017 ONSC 212 and Millar v Williams, 2009 CanLII 41350 (ON SC). See for example Chapter 6 which outlines the distress for children in cases concerning the Hague Convention on International Child Abduction (1980). See particularly M. v B. [2016] ewhc 1657; Re M. (Republic of Ireland) (Child’s Objections) ( Joinder of Children as Parties to Appeal) [2015] ewca Civ 26 and Israeli case FamA (Dist ta) 1167/99 R. v L. (unreported, 3 July 2000) [incadat cite: HC/E/IL 834]. Such cases are complicated by the supremacy of the presumption in favour of return (in that they are not treated by the courts as ‘best interest decisions’), a point which is considered in Chapter 2, Section 5.3. See Herring and Wall in the context of vulnerable adults; note 15, at 699. See further Chapter 3. Immigration cases are rarely, if ever, decided with the best interest of the child as the primary consideration unfortunately, frequently leaving little room for a child’s wishes. See further Chapter 2, Section 5.2.

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are overridden by the state only where truly necessary – something which we adults take for granted every day in liberal democracies. 5

Overview of this Book

In Chapter 1, the initial argument is made that the text of the crc Article 12 ‘right to be heard’ is flawed when it comes to best interest proceedings, as it is too vague and inadequate for the personal matters determined in such proceedings. We need to focus instead on children’s autonomy. In Chapter 2 it is stated that whilst the ‘best interest principle’ is positive in that it focuses on children’s interests rather than those of others, it is flawed in the way that children’s wishes are treated as any other factor in the best interest determination. In Chapter 3 it is argued that autonomy is crucial to well-being, but it is also limited. This goes for everyone, including children. The limits of children’s autonomy are usually understood to be defined by ‘capacity’ but as this is so little understood, the limit for children should instead be determined by potential harm from outcomes. Chapter 4 uses examples of practice and proceedings from around the world to demonstrate that Article 12 has not resulted in good processes. Children are routinely excluded, and many processes fail to adequately prepare children for proceedings. In Chapter 5 evidence is considered that points to Article 12 making little difference in the outcomes of decisions as children’s wishes are easily overridden. A power gap is created where children’s wishes are denied, one which is filled by already powerful forces such as the state and parents (particularly non-resident parents). Chapter 6 outlines how courts should only override children’s autonomy where it is likely that significant harm will result, similar to the high standard by which the state must abide in child protection cases. In Chapter 7 it is argued that for the autonomy principle to work, an autonomy-supportive, child-friendly process for hearing children must be in place – this requires a change in the values underpinning legal systems. The final chapter brings together key points from the preceding chapters.

chapter 1

A Proposal: Replace the ‘Right to be Heard’ with a ‘Children’s Autonomy Principle’ I would just like adults to explain (validly) why they are making this decision and for me to have more right to veto so they have to give more consideration.1

∵ Introduction In this chapter, the crc Article 12 right to be heard is placed in the context of the legal status of children in liberal democracies. ‘Children’ – that is, those under the age of 18 years – are (for most purposes) legally assumed to lack the mental capacity to make their own decisions.2 Therefore when certain legal questions arise in a dispute between parents or other responsible adults (usually considered children’s substitute decision-makers3), such as where children will live after divorce, courts make decisions which reflect the best interest of the child.4 These ‘best interest decisions’ (taken in best interest proceedings), 1 2 3 4

1 Eighteen year old young lady talking about her medical treatment, quoted in European Commission, Evaluation of Legislation, Policy and Practice on Child Participation in the European Union: A Final Report to the European Commission Directorate-General for Justice (European Commission, 2014), at 178. 2 Irma Hein et al., “Why is it Hard to Make Progress in Assessing Children’s Decision-Making Competence?” 16 bmc Medical Ethics 1 (2015), at 1; Gary Melton, “Toward ‘Personhood’ for Adolescents: Autonomy and Privacy as Values in Public Policy” 38 American Psychologist 99 (1983), at 100. In us case Ginsberg v New York, Justice Stewart suggested that children’s liberty is dependent upon their level of competence: “Essentially, the argument is that minors are dependent beings who lack the capacity … and therefore … lack independent liberty interests.” Ginsberg v New York, 390 u.s. 629, (1968) at 649–50 (concurring opinion). 3 See for example us case Parham v j.r. 442 u.s. 584 (1979), at 602. 4 See for example Section  60CA of the Family Law Act 1975 in Australia; Section  1 of the Children Act 1989 in England and Wales; Section 27 of the Child Care Act, 1991 in Ireland;

© koninklijke brill nv, leiden, ���� | doi 10.1163/9789004355828_003

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which are essentially unique to children, pose many challenging questions. The most important question is, on what basis do we decide what is ‘best’? The ‘best interest’ standard becomes particularly problematic where children have their own wishes on the matter, as the best interest decision does not permit (or encourage) them to make their own choices. It is difficult to reconcile such a paternalistic approach to all under-18s on the one hand with the priority accorded to autonomy – the ideal that we should all have personal freedom in our lives to the extent possible – in the liberal democracy on the other. Does under-18 status justify dispensing with children’s autonomy in their own personal matters, which is essentially what occurs in best interest decisions? The Article 12 ‘right to be heard’ – an international human rights law response to this quandary – ostensibly goes some way towards accounting for children’s lack of legal capacity, by permitting their wishes to be considered in the ­decision-making process. The Article 12 right to be heard is much revered and celebrated and has been described as presenting “a radical r­e-conceptualisation of the adult-child decision-making relationship.”5 Yet a closer look at the theory behind Article 12 shows that it falls very short of making-up for a lack of autonomy in best interest proceedings. First, Article 12 does not explicitly encourage states to support children to exercise and develop their capacities, unlike for example the un Convention on the Rights of Persons with Disabilities which focuses on maximising involvement in ­decision-making concerning oneself.6 Secondly, even where systems are in place to hear children (they often are not), it is unclear how children’s wishes are to be weighed against other factors. Thirdly, it encourages a preoccupation with ‘protecting’ children and ensuring they do not have a determinative say in ­decision-making. Finally, Article 12 leaves many questions unanswered concerning children’s access to justice more generally, such as whether children should have legal standing in all cases concerning them. Considering these significant theoretical (and consequently legal and practical) barriers, would it be preferable to take a different approach to the human rights challenge posed by children’s legal status, and the fact that choice is denied to children when legal decisions are made about them? This chapter 5 6

S­ ection 4 of the Care of Children Act 2004 in New Zealand and Section 11(7) of the Children (Scotland) Act 1995. 5 Gerison Lansdown, Promoting Children’s Participation in Democratic Decision-Making (unicef, 2001), at 1. 6 un General Assembly, Convention on the Rights of Persons with Disabilities, resolution adopted by the General Assembly, 24 January 2007, A/RES/61/106. See for example Articles 12 and 13.

A Proposal

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proposes that crc Article 12 should not focus on ‘hearing’ children, but instead should aim to facilitate children to exercise autonomy to the highest degree possible, through a children’s autonomy principle. It is argued that such a principle should give children a right in legal decisions in which the best interest of the child is the primary consideration to choose – if they wish – how they are involved (process autonomy) and the outcome (outcome autonomy) unless it is likely that significant harm would arise from their involvement or preferences. The examination in this chapter of the textual problems with crc Article 12 will inform the discussion in Chapters 2 and 3 of the moral and legal inconsistencies surrounding the treatment of children’s autonomy, and will be further bolstered by examples of the failures of Article 12 in practice which are analysed in Chapters 4 and 5. It will also inform the elaboration on the children’s autonomy principle, and consideration of the type of system (and support) needed to implement it, in Chapters 6 and 7. 1

Children and Proceedings: Is Article 12 Effective or is it Just Rhetoric? ‘Imagine’ (the Lennon song) is about peace and dreams. Just imagine if everyone respected children’s rights and if all children had the right to say their opinion and all children could participate, and maybe grownups could listen …7

The right of children to be heard in civil law proceedings affecting them is set in a challenging legal context. Mill’s famous dictum, “over himself, over his own body and mind, the individual is sovereign”,8 is not presumed to apply to children. This particular group of individuals are in the unique position that, legally, they usually do not possess sovereignty in these areas.9 It is assumed that adults – usually parents – will oversee the exercise of their rights on their behalf. The us Supreme Court stated in Parham v j.r. for example: “Most children, even in adolescence, simply are not able to make sound judgments 7 8 9

7 Fifteen year old Greek girl, quoted in European Commission, note 1, at 185. 8 John Stuart Mill, On Liberty (4th edn, Longman, Roberts and Green, 1869 [1859]), at 9. 9 Eekelaar states that no other individuals “are normally subjected to this liability except in special circumstances (perhaps mental illness, or unconsciousness).” John Eekelaar, “The Interests of the Child and the Child’s Wishes: The Role of Dynamic Self-Determinism” in Philip Alston, Stephen Parker and John Seymour, eds, Children, Rights and the Law (Oxford University Press, 1992), at 43.

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concerning many decisions … Parents can and must make those judgments.”10 People are legally considered minors (and therefore under the control of parents or guardians) until they reach the age of majority, at which point they are considered adults for legal purposes and consequently get to make their own choices, unless those choices result in a particular level of harm for others. Children’s inability to exercise their own legal rights for most purposes is, on the face of it at least, unproblematic much of the time as parents engage on their behalf in any necessary interaction with the legalities of the societies in which children live. Yet cases arise in the legal arena that involve stark conflicts of interest between parents and their children.11 Most common are those where the state seeks to take children into care and cases in which separated parents engage in disputes over the raising of their children, for example concerning the ‘residence’ of the child or the ‘contact’ the non-resident parent will have with them. These are perhaps the instances in which it is most clearly no longer satisfactory to assume that parents will decide – they are either in dispute with each other (family law), or being challenged by the state (child protection). These are the types of cases in which courts are most commonly called upon to make decisions about the child’s upbringing. These proceedings are of enormous importance to the child involved (though most children will never experience involvement in such cases).12 They are also important on a broader, societal level. The judge – or ­other ­decision-maker, as the case may be – is a representative of the state in these ­decisions, and is therefore making decisions for and about children on behalf of society. ­Finding solutions in the best interests of the child has “­powerful symbolic meaning.”13 Best

10 11 12 13

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Parham v j.r., 442 u.s. 584 (1979), at 603. See also Re Roddy (A Minor); Torbay Borough Council v Associated Newspapers Ltd. [2003] ewhc 2927 in which the court gave a slightly more qualified interpretation – that “depending on the circumstances, decision-making power may rest not with the child but with the child’s parents or even with the court.” Para 37. Brittany Rudd et al., “Associations between Parent and Child Reports of Interparental Conflict/Violence and Child Difficulties in a Family Mediation Setting” 53 Family Court Review 602 (2015), at 602. Research estimates that only 2–15% of separating couples with children will ever have their case heard by a judge. See for example Elisabeth Godbout, Claudine Parent, and Marie-Christine Saint-Jacques, “Positions Taken by Judges and Custody Experts on Issues Relating to the Best Interests of Children in Custody Disputes in Quebec” 29 International Journal of Law, Policy and the Family 272 (2015), at 272–3. In the us, Kelly suggests that the number is 5%. Joan Kelly, “Children’s Living Arrangements Following Separation and Divorce: Insights from Empirical and Clinical Research” 46 Family Processes 35 (2007), at 40. Child protection cases constitute a relatively low proportion of the population, of course. Godbout, Parent, and Saint-Jacques, ibid, at 273.

A Proposal

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interest proceedings are one of the very few instances in which the wishes (or autonomy, as I am positing) of the child is ever raised as a legal issue.14 There is indeed symbolic meaning to how children’s autonomy is treated in these kinds of cases, particularly considering the problematic status that they hold in society more broadly, where they are seen as semi-citizens (if citizens at all).15 crc Article 12 attempts to lift children beyond the invisibility that a legal minority/incapacitated status confers upon them by putting something in place that acknowledges that they may have something to say. Children are to be heard in all matters affecting them, in particular in judicial and administrative proceedings. Yet in many ways this notion of children as individual rights holders has not sat comfortably in our legal systems, as is demonstrated in Chapters 4 and 5. The research presented in these chapters points clearly to the failure of states to accept hearing children as a ‘right’, the failure to properly resource systems, the failure to properly train staff and to ensure that being involved is a good experience for children, and the inability of children to have influence on outcomes (which, in particular, makes ‘hearing’ children appear very tokenistic). Therefore in spite of huge hopes placed on the Article 12 right to be heard, implementing it in the legal arena has proven a challenge indeed. Nevertheless, there remains an overriding sense that crc Article 12 is important, that it constitutes a modern approach to children, and that it is the correct framework through which to vindicate children’s rights in proceedings affecting them. The principle is to be found in training documents16 and in the legislation of many states,17 with an increasing number of states ­enshrining 14 15 16 17

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15

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Cases concerning children’s upbringing are usually determined in accordance with what is in the best interest of the child, in liberal democracies at least. See Fiona Raitt, “Judicial Discretion and Methods of Ascertaining the Views of a Child” 16 Child and Family Law Quarterly 151 (2004), at 151. See below, Section 2.2. See for example Matias Cordero Arce, “Maturing Children’s Rights Theory: From Children, with Children, of Children” 23 International Journal of Children’s Rights 283 (2015) and Elizabeth Cohen, “Neither Seen nor Heard: Children’s Citizenship in Contemporary Democracies” 9 Citizenship Studies 221 (2005). See for example Scottish Executive, A Report on Implementation of the un Convention on the Rights of the Child in Scotland 1999–2007 (Scottish Executive, 2007), at 45; Penal Reform International, Justice for Children Briefing No. 4: The Minimum Age of Criminal Responsibility (Penal Reform International, 2013) at 2; Child Dispute Resolution Advisory Group, Final Report of the Voice of the Child Dispute Resolution Advisory Group (March 2015), at 4 and see further Robbie Gilligan, “Children In Care: Global Perspectives On The Challenges Of Securing Their Wellbeing And Rights” in Anne Smith, ed, Enhancing Children’s Rights: Connecting Research, Policy and Practice (Palgrave Macmillan, 2015), at 133. Laura Lundy et al., The un Convention on the Rights of the Child: A Study of Legal Implementation in 12 Countries (unicef, 2012), at 4.

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the right through Constitutions.18 The text of crc Article 12 has also been mirrored in a variety of national and international instruments including the un Convention on the Rights of Persons with Disabilities,19 the African Charter on the Rights and Welfare of the Child,20 the eu Charter of Fundamental Rights,21 Council Regulation (ec) 2201/2003 of the eu (which relates to interjurisdictional parental disputes)22 and the Council of Europe Guidelines on Child-Friendly Justice.23 The prevalence of the crc Article 12 rhetoric and the stark absence of any real change in children’s proceedings exist simultaneously. This paradox can be explained by a number of factors. Fluid understandings of childhood have resulted in the law struggling to define and to manage issues concerning children, and concerning their ability to make decisions. The varying degrees of ‘abilities’ across the spectrum of childhood mean that it is difficult to create laws which apply to all under-18s.24 Assumptions about and perceptions of children as a group have created a situation where it is accepted without question that decisions have to be made about children rather than by them, in order to protect them from themselves or others. The default position is that under-18s are incompetent, and this assumption – so often unquestioned – leads to many ethical and legal quandaries. The fact that crc Article 12 does little to challenge this fundamental assumption must be tackled. 18 19 20 21 22 23 24

18 19 20 21 22

23

24

See further Aisling Parkes, Children and International Human Rights Law: The Right of Children to be Heard (Routledge, 2013), at 48. Article 7(3). oau Doc. CAB/LEG/24.9/49 (1990), entered into force Nov. 29, 1999. Article 4. The Charter of Fundamental Rights of the European Union, oj (C 364) 1, adopted 7 December 2000. Article 24(1). Council Regulation (ec) 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (ec) No 1347/2000. It requires that children are heard in relation to proceedings under the Hague Convention on International Child Abduction (1980) unless this appears inappropriate, having regard to the age or maturity of the child. See Guidelines of the Committee of Ministers of the Council of Europe on Child-Friendly Justice, adopted by the Committee of Ministers on 17 November 2010 at the 1098th meeting of the Ministers’ Deputies, Strasbourg, Council of Europe, at 17 and 18. In particular, adolescence has received little attention in the rights context, although this is gradually changing. See Jacqueline Bhabha, “Introduction: The Importance of a ­Rights-Based Approach to Adolescence” in Jacqueline Bhabha, ed, Human Rights and Adolescence (University of Pennsylvania Press, 2014) and Committee on the Rights of the

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21

The Obscured Autonomy Idea in the crc [C]hildren’s rights are ok, but in everyday life we find many opposite behaviours.25

The word ‘autonomy’ arises sporadically when various children’s rights issues, both practical and theoretical, are considered. Therefore it is important to examine whether the children’s rights framework advocated by the crc, and played-out in the courts, recognises and relies upon the concept. It must also be considered whether the term ‘autonomy’ could replace the baffling array of terminology used interchangeably with the ‘right to be heard’; and consequently bring greater focus to the status that children should have in best interest proceedings. 2.1 Does the crc Enshrine ‘Autonomy’? One of the primary assumptions within ‘liberal legalism’ (applied within ­societies dominated by a liberal political philosophy) is that the basic unit of society is the individual, and that the individual is rational and autonomous.26 The term ‘personal autonomy’ has evolved to encapsulate ­self-governance, selfdetermination, and personal sovereignty.27 In this book therefore, autonomy is taken to refer to the liberal ideal that we should all have personal autonomy in our lives to the extent possible. It seems that, as children’s status has improved with the advent of the rights discourse and the prominence of crc Article 12, the idea of, if not always the exact term, ‘autonomy’ has evolved to some extent in theory and practice. The term is not explicitly part of the language of the crc. Article 12 is a very qualified right – children will be heard, if they are deemed “capable of forming views”, and their views will be given weight in line with their age and perceived 25 26 27

25 26

27

Child, General Comment No. 20 (2016) on the Implementation of the Rights of the Child during Adolescence CRC/C/GC/20 (6 Dec. 2016). Child quoted in European Commission, note 1, at 176. Rosemary Hunter, “Contesting the Dominant Paradigm: Feminist Critiques of Liberal Legalism” in Vanessa Munro and Margaret Davies eds, The Ashgate Research Companion to Feminist Legal Theory (Ashgate, 2013), at 13. See also Jonathan Beever and Nicolae Morar, “The Porosity of Autonomy: Social and Biological Constitution of the Patient in Biomedicine” 16 The American Journal of Bioethics 34 (2016), at 34; and Marina Oshana, “A Commitment to Autonomy Is a Commitment to Feminism” in Andrea Veltman and Mark Piper, eds, Autonomy, Oppression, and Gender (Oxford University Press, 2014), at 214. Viv Ashley, “Philosophical Models of Autonomy” Essex Autonomy Project Green Paper Report (Essex Autonomy Project, 2012), at 2.

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maturity. Even though children have other ‘freedoms’ in the crc such as the right to freedom of expression, the right to freedom of information, and the right to freedom of association and assembly, these have been largely ignored by commentators and courts. Therefore the crc hints at autonomy for under18s, but a limited version, one which has not been progressively interpreted and applied by courts and others with the influence to do so.28 Of course the bright line between minority (under 18) and majority (over 18) does not operate simplistically in reality, and indeed it is not the legal standard in all contexts. For some purposes, children attain legal autonomy earlier, for example children have the right to consent to medical treatment at 16 years in England and Wales.29 Judges also take children’s wishes into account in the legal arena, (even if in a limited and inconsistent way) as demonstrated throughout this book, and some accord a high level of weight to children’s ­preferences.30 Furthermore, and perhaps most importantly, in reality under18s engage in decision-making in many aspects of their lives every day – “with whom will I be friends?”; “what career should I choose?”; “how do I deal with an abusive parent?” Some children negotiate these questions, relationships and dilemmas better than many adults, exerting influence on their own lives, on those of family members,31 and on events in society more broadly.32 The blanket legal incapacity33 of under-18s does not, therefore, ring true in reality. Children act with effectiveness – that is, successfully influencing their environment – regularly. This has led to a complex situation in which it is u­ nclear what is meant by ‘the right to be heard’ or indeed children’s ‘views’, ‘wishes’, 28 29 30 31 32 33

28

29 30

31

32 33

See further Aoife Daly, “A Commentary on the United Nations Convention on the Rights of the Child, Article 15: The Right to Freedom of Association and Peaceful Assembly” in Andre Alen et al., eds, A Commentary on the United Nations Convention on the Rights of the Child (Martinus Nijhoff Publishers, 2016). Family Law Reform Act 1969, Section 8. In reality the situation is complicated however – see further Chapter 3, Section 6. See for example Re M. (Republic of Ireland) (Child’s Objections) ( Joinder of Children as Parties to Appeal) ewca Civ 26; W. (A Child) [2016] ewca Civ 1051; Re Roddy (A Minor); Torbay Borough Council v Associated Newspapers Ltd [2003] ewhc 2927. In Canada see pja v scc, 2015 ABQB 800 and Weinkauf v Weinkauf, 2011 ABQB 446, and in New Zealand Thorpe v Barrett [2015] NZHC 3344 and Blair V Blair HC DUN CIV 2012-412-0051, and in South Africa Central Authority for the Republic of South Africa and Another v B. (2011/21074) [2011]. See descriptions of children’s influence on family decision-making in Ian Butler, Lesley Scanlon and Margaret Robinson, Children and Decision Making (Jessica Kingsley Publishers, 2005). For consideration of children’s influence on political matters, see Daly, note 28. By ‘legal capacity’ I mean the legal right to make one’s own decisions, a point examined in detail in Chapter 3, Section 2. Quinn defines legal capacity as something which “enables

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‘preferences’, ‘freedoms’, ‘autonomy’ and similar terms in use. Discussions in the area of children’s rights involve a bewildering range of terminology. This has contributed greatly to confusion about children’s rights and abilities; a failure to adequately define linguistic and legal boundaries; and ultimately stagnation in the debate. Uses, understandings and assumptions about social phenomena such as children’s rights are dictated to a large extent by language use, and it is therefore necessary to critically analyse the language of children’s rights.34 The Article 12 ‘right to be heard’ and associated terms determine society’s perceived reality about the ‘right’ and ‘appropriate’ way to treat children, and a close examination demonstrates that there is a need for a change in terminology. 2.2 Best Interest Decisions are Substitute Decisions It is crucial to emphasise that best interest proceedings essentially involve ‘substitute decision-making’35 – that is, official decisions made by an adult on the child’s behalf because the child herself (apparently) cannot make the decision. Once one accepts that this is the nature of the court’s decision – a determination made on the child’s behalf – it becomes even clearer that children require more than a ‘right to be heard’ in this context. They instead require respect for their autonomy, as is accorded to vulnerable adults who may likewise find their best interests determined by the courts. Decisions in the courts about children’s upbringing are (with some exceptions)36 decided with the best interest of the child as the primary or ‘paramount’ consideration. The crc of course recognises this.37 The concept of a 34 35 36 37

34 35 36

37

persons to sculpt their own legal universe – a web of mutual rights and obligations voluntarily entered into with others … Legal capacity opens up zones of personal freedom.” Gerard Quinn, “Personhood and Legal Capacity, Perspectives on the Paradigm Shift of Article 12 of the Convention on the Rights of Persons with Disabilities” Paper presented at the hpod Conference (Harvard Law School, Boston, 20 Feb. 2010). Ann Quennerstedt, “Children, But Not Really Humans? Critical Reflections on the Hampering Effect of the ‘3 Ps’” 18 International Journal of Children’s Rights 619 (2010), at 620. For consideration of substitute decisions for people with cognitive impairment, see below Section 7. See for example the Hague Convention on International Child Abduction, in which the presumption in favour of return of the child to the jurisdiction from where they have been taken displaces the obligation to determine outcomes in the best interest of the child. Hague Convention on Civil Aspects of International Child Abduction, tias No 11670, 1434 unts 48, adopted 25 October 1980, entered into force 1 December 1983. See Chapter 2, Section 5.3. Although the crc refers to the best interest of the child as a primary consideration in all matters affecting the child in Article 3, the instrument points to the best interest of the child as the primary consideration in, for example, adoption cases (Article 21).

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decision in which ‘the best interest of the child is the primary consideration’ is almost always taken to mean that the outcome which is best for the child should be followed. This is the interpretation by courts in England and Wales, for example, of the term “the child’s welfare shall be the court’s paramount consideration” in the Children Act 198938 (‘best interest’ is sometimes used interchangeably with the term ‘welfare’).39 This is undoubtedly the morally correct way to proceed in cases about children’s upbringing, medical treatment and other such issues. These decisions are essentially substitute decisions on a matter on which a child would herself decide if she were an adult. The child cannot take the decision however, because under-18s are generally denied legal capacity (not necessarily because she is incapable in reality). The vulnerable situation of the child compels us to ensure that decisions are made in her interests, rather than those of anyone else. These decisions are distinct from decisions, for example, in which state interests are prominent, such as criminal and immigration proceedings.40 These cases do not involve a substitute decision because the legal issue would equally come before the courts if the person were an adult (for example where an adult was accused of committing a crime).41 Yet there is a degree of reluctance to understand or accept that court decisions about children’s upbringing are substitute decisions, unlike in the area of adults with cognitive impairment where decisions about best interests are considered substitute decisions.42 First, there is a failure to conceptually distinguish them from other types of proceedings. Judges and others fail to consider whether the child’s wishes should be treated differently to, say, how 38 39 40 41 42

38 39

40

41

42

See for example Re G. (Children) (Residence: Same-sex Partner) [2006] ukhl 43; Re P. (Contact: Supervision) [1996] 2 flr 314, at 328; and J. v C. [1970] ac 668 at 710–1. See for example Re G. (Children) [2012] ewca Civ 1233, at para. 26. Some argue that there are differences in meaning between the terms best interests and welfare. See further Helen Stalford, Kathryn Hollingsworth and Stephen Gilmore, Children’s Rights Judgments: From Academic Vision to New Practice (Hart, forthcoming 2017), Chapter 2. As I argue in Chapter 2, children’s autonomy is also important in such proceedings, but they are different types of proceedings. Unfortunately not even the best interest principle is relied upon sufficiently in these cases. As not even this basic obligation to children is met, it will inevitably be more difficult to argue that children’s autonomy should be prioritised. It is crucial however to ensure that these proceedings are suited to children’s particular needs. They may require additional assistance and their best interests should be to the forefront of proceedings. See further Rachel Taylor, “Putting Children First? Children’s Interests as a Primary Consideration in Public Law” 28 Child and Family Law Quarterly 45 (2016) and Chapter 2, Section 5.2. See below at Section 7.

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they would be treated in an immigration law case, considering a best interest decision is a substitute decision (and one would expect more input from the child in resolving whatever question is posed). Secondly, some even disagree that such decisions should prioritise children’s interests.43 Relational theorists who resist the individualism of much of the rights approach argue that the child’s interests should not be the sole consideration in such cases, because the interests of parents and others should be given greater recognition.44 I disagree strongly – the extent to which children’s interests are considered as intertwined with the interests of others already accounts for the need to consider in best interest proceedings the position of parents and other important people in children’s lives.45 The focus of such proceedings should indeed be firmly on the interests of the child in question. But more than this, such proceedings should be firmly accepted to constitute substitute decision-making processes. Without such acceptance, we cannot adequately understand why children’s autonomy is so crucial in those decisions. They are paternalistic decisions in societies which value autonomy over all other qualities, and therefore they are decisions which require accountability and limitation of the paternalism engaged. A ‘right to be heard’ does not seem strong enough to mitigate the starkness of being denied the legal right to make decisions about one’s personal life. 2.3

43 44 45

43

44

45

The Breadth of crc Article 12 and the Lost Message of Best Interest Proceedings They didn’t care what I thought, it was about what they thought. What they thought was best for me. I could say what is best for me as well, like Guggenheim argues that the best interest principle should not be applied in such cases as it undermines parents. See Martin Guggenheim, What’s Wrong with Children’s Rights (Harvard University Press, 2005), at xi and 32. See further Chapter 2, Section 2.2. See for example, John Herring’s criticism of the best interest principle, and his suggestion that the interests of others should be considered in proceedings concerning contact and residence. Jonathan Herring, Family Law (5th edn, Pearson Education Ltd, 2011), at 40. See also Helen Fenwick and Shazia Choudhury, “Taking the Rights of Parents and Children Seriously: Confronting the Welfare Principle under the Human Rights Act” 25 Oxford Journal of Legal Studies 453 (2005); John Eekelaar, “Beyond the Welfare Principle” 14 Child and Family Law Quarterly 237 (2002); John Herring, “The Human Rights Act and the Welfare Principle in Family Law: Conflicting or Complimentary?” 11 Child and Family Law Quarterly 223 (1999); and Helen Reece, “The Paramountcy Principle: Consensus or Construct?” 49 Current Legal Problems 267 (1996). See for example In Re G. (Children) [2006] ukhl 43 where Baroness Hale made the point that the welfare principle is sufficient to consider the important position of parents.

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you could as well. You could say what is best for you. I don’t need, well I do need sometimes, but most of the time I don’t need people to say what is best for me.46 As crc Article 12 enshrines a right to be heard in “all matters” affecting children, it has been drafted to apply to a broad variety of scenarios. This means that it is ill-suited to best interest proceedings in which substitute decisions are being taken about children’s personal lives. Whilst a right to be heard, or ‘participation’ as it has become known, may be suitable for such things as children’s political opinions, it is not suitable for best interest decisions. This is to be seen in the fact that, along with ‘participation’, many other terms are also employed to try to explain or position children’s decision-making in such proceedings, such varying terms as ‘voice’, ‘self-determination’ and ‘competence’.47 An early draft of the crc explicitly enshrined together the best interest principle and the right to be heard in proceedings; a format which if retained may have ultimately resulted in stronger attention for and implementation of autonomy rights for children in best interest proceedings.48 Yet ultimately the crc Article 12 right of children to be heard was drafted to apply not just to proceedings but to any variety of matters. It has been taken to apply to the political arena, for example in respect of children’s campaigning on a particular issue or children being heard by political representatives,49 as well as to more everyday issues such as being heard in the family and at school.50 The fact that the right to be heard can potentially apply to such a wide variety of scenarios has diluted the message of how important it is to uphold children’s autonomy and due process rights in best interest proceedings. It has also likely contributed to the plethora of terms in use when it comes to Article 12. The most common extraneous word used as a ‘right to be heard’ parallel is ‘participation’.51 In the struggle to identify, describe and apply the complex idea in Article 12 of children generally being heard and involved, commentators have come to rely heavily on the catch-all word. Whilst useful in the manner in which it neatly fits all scenarios (participating in politics, 46 47 48 49 50 51

46

47 48 49 50 51

Twelve year old boy quoted in Nigel Thomas and Claire O’Kane, “When Children’s Wishes and Feelings Clash with their ‘Best Interests’” 6 The International Journal of Children’s Rights 137 (1998), at 147. See Chapter 5, Section 1.3. See further below, Section 5.1. See further Daly, note 28. See for example Parkes note 18, Chapters 4 and 6. See Quennerstedt, note 34, at 620.

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­ articipating in decision-making about one’s own life, participating in a legal p process), it is inadequate in many ways, for example it does not necessarily involve the ‘weight’ element used in crc Article 12 to imply influence. The extent to which it requires any particular level of influence or quality of process or outcome is unclear.52 The notion is open to a range of interpretations, from “having minimal information to having quite a full share in decision-making.”53 Therefore it is not clear what we mean when we say ‘participation’.54 Perhaps then the term ‘participation’ is not appropriate for the context of proceedings. The monopoly of crc Article 12 and the ‘participation’ discourse55 it inspires has distracted commentators from the regular ‘civil and political rights’ framework which emphasises that children’s rights are human rights.56 It has distracted academics, courts and others from the n ­ ecessary development, discussion and application of the general civil and political rights for children.57 Discussion of, or reliance upon, any of the ‘freedom’ rights in the crc are very rare. So too is reliance on the right to private life, which in theory at least should be able to accommodate attempts to progress the status and treatment of children in respect of their personal freedoms.58 It is true that children require special provisions at the level of international human rights law to differentiate them from adults, hidden as children are in the ‘­private’ family

52 53 54 55 56 57 58

52

53 54

55 56

57

58

There are a number of theories of participation. Some commentators are now insisting on influence being a prerequisite for something to be considered ‘participation’. See for example Svein Arild Vis and Nigel Thomas, “Beyond Talking: Children’s Participation in Norwegian Care and Protection Cases” 12 European Journal of Social Work 155 (2009) and Sharon Bessell, “Participation in Decision-Making in Out-of-Home Care in Australia: What Do Young People Say?” 33 Children and Youth Services Review 496 (2011), at 497. Priscilla Alderson and Jonathan Montgomery, Health Care Choices: Making Decisions with Children (Institute for Public Policy Research, 1996), at 27. Alderson and Montgomery state that “[p]articipation can be worse than useless when used as a pretence of consultation, or to disguise the fact that no real choice is being given.” Ibid. Thomas Hammarberg, “The un Convention on the Rights of the Child: And How to Make It Work” 12 Human Rights Quarterly 97 (1990), at 100. See Quennerstedt, note 34, at 631–2. Quennerstedt criticises the problematic ‘3 Ps’ formula which categorises crc articles as related to protection, participation and/or provision rather than to ‘civil and political rights’ and ‘economic, social and cultural rights’. See Quennerstedt, note 34. See also Daly, note 28 and Alfred De Zayas, “The crc in Litigation Under the iccpr and cedaw” in Ton Liefaard and Jaap Doek, eds, Litigating the Rights of the Child (Springer, 2015), in which it is made clear that autonomy rights have not been the focus of iccpr jurisprudence concerning children. See further Daly, note 28.

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c­ ontext and often ignored by policy-makers. This is where the well-intentioned, child-specific ‘right to be heard’ comes from. Yet many argue that the ‘right to be heard’ has not served children well in the contexts of political rights and private lives.59 I am arguing that neither has it served them well in the context of best interest proceedings, and that a focus on ‘autonomy’ is preferable. There are many other terms used in the context of best interest proceedings such as ‘giving children a voice’,60 ‘independence’,61 ‘agency’62 and ‘selfdetermination’.63 In some situations there is reference to children having a “determinative say”,64 although most authors are at pains to emphasise the importance of not interpreting crc Article 12 as involving a determinative say,65 even though the term “due weight” seems to imply that they should have in at least some cases – that is, if determinative “weight” were “due” to those views. The notion of children’s ‘ability’ to make decisions also generates terminology which is included in this mix. crc Article 12 itself refers to the right to be heard applying to children “capable of forming views”. It stipulates that views 59 60 61 62 63 64 65

59 See for example Daly, note 28, Cordero Arce, note 15 and Quennerstedt, note 34. 60 Lundy, note 17, at 927. 61 In Mabon v Mabon and others [2005] ewca Civ 634 “independent representation” is considered, see for example para. 44. 62 This is the process of learning and developing through active interaction with others and through participation in their own environments. See Allison James and Alan Prout, “Strategies and Structures: Towards a New Perspective on Children’s Experiences of Family Life”, in Julia Brannen and Margaret O’Brien, eds, Children in Families: Research and Policy (RoutledgeFalmer, 1996). 63 Thomas and O’Kane, note 46, at 139. 64 Grant Taylor, “When Are Children’s Views Determinative in Relation to Matters of Custody?” 11 The Scrivener 54 (2002). 65 See for example Gillian Macdonald, “Hearing Children’s Voices? Including Children’s Perspectives on their Experiences of Domestic Violence in Welfare Reports Prepared for the English Courts in Private Family Law Proceedings” 65 Child Abuse and Neglect 1 (2017) at 4; Parkes note 18, at 267; John Tobin, “Justifying Children’s Rights” 21 International Journal of Children’s Rights 395 (2013), at 440; Victoria Weisz, Sarah Beal and Twila Wingrove, “The Legal Experiences of Children, Families, and Professionals Who Work with Them” in Monica Miller and Brian Bornstein, eds, Stress, Trauma, and Wellbeing in the Legal System (Oxford University Press, 2010), at 66–7. For case law, see Re j.s. (Disposal of Body) [2016] ewhc 2859, at para. 32 (“js cannot expect automatic acceptance of her wishes”); and W. (Minors) [2010] ewca 520 in which the court refers to “the need to take decisions about much younger children not necessarily in accordance with their wishes but at any rate in the light of their wishes.” See also Irish cases z.d. v. k.d. [2008] 4 i.r. 751: “[T]he views of the child are not synonymous with an obligation to bow to the child’s wishes” and U. v U. [2011] iehc 268: “It is clear that a court’s obligation is to take account of the child’s views and it is not the obligation of the court to implement those views.” See in Canada Jewish

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should be weighed in accordance with age and maturity. Terms such as ‘mental capacity’, ‘competence’ and ‘decision-making abilities’ are particularly relied upon in the context of medical consent,66 and these terms are sometimes used in best interest decisions more broadly, as outlined in Chapter 5. There are also a number of phrases in the specific context of legal proceedings which are of note. Some authors refer to children’s “legal personhood”67 – that is, their recognition as persons before the law – and “legal standing”68 to denote their ability to initiate court action, to become party to a case, or to have legal representation. The right to be heard intersects with broader access to justice issues for children, for example whether children are able to bring cases themselves. But the right also stands somewhat apart, because such cases are often within tort law, judicial review and other areas of the law separate to ‘best interest proceedings’ where decisions are made in accordance with the best interest of the child (rather than simply giving consideration to the principle).69 There are, therefore, a dizzying amount of notions, ideas, terms, often used interchangeably with the right to be heard; some scenario-specific, some more general. It renders it difficult to pin down what it is that we are actually talking about when we use these terms. They are often used (including by courts70) as if they have accepted meanings, which they usually do not. This is why autonomy may serve as a useful focus for proceedings where children’s interests are at stake. Autonomy is central to our understandings of our identity as human beings, our agency as democratic citizens, and our feelings of self-worth.71 The autonomous rational person is the ideal (though not always the reality) in a liberal democracy. Although the term ‘autonomy’ is not without its complexities, it

66 67 68 69 70 71

66 67 68 69

70 71

Family and Child Services of Greater Toronto v. J.K., 2014 ONCJ 792, para. 19, and in Australia Robbins and Rosemount [2008] FamCA 486, para. 492. See extensive consideration of these concepts in Chapter 3. Alexis Dyschkant, “Legal Personhood: How we are Getting it Wrong” 5 University of Illinois Law Review 2075 (2015), at 2081. See Sonja Grover, The Child’s Right to Legal Standing (LexisNexis, 2008). Although these broader issues of access to justice are very much linked to the central point in this book – that autonomy should be prioritised in best interest decisions – the many issues, complexities and potential solutions will not be examined in detail. Other authors have written extensively about these issues elsewhere. See for example Child Rights International Network, Rights, Remedies and Representation: Global Report on Access to Justice for Children (Child Rights International Network, 2016), considered in Chapter 4, and Grover, ibid. See Chapter 5, Section 1.3, where it is in particular outlined that terms such as ‘maturity’ and ‘capacity’ are relied upon by judges with little or no definitions agreed or provided. See further Chapter 3, Section 2.

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is more clear what we mean when we use it. So in an area (that is, children’s rights in best interest proceedings) seemingly struggling for a focal point perhaps this is the best one available. 3

Let’s Talk about Autonomy Instead of a Right to be Heard I’m 14 and I feel strongly I’m old enough to understand the risks I’m taking and make my own mind up.72

3.1 Why We Should Focus on Autonomy The primary proposal in this book is that instead of a ‘right to be heard’ in proceedings concerning them, we should apply a children’s autonomy principle prioritising children’s autonomy to the extent that in legal decisions in which the best interest of the child is the primary consideration, children should get to choose – if they wish – how they are involved (process autonomy) and the outcome (outcome autonomy) unless it is likely that significant harm will arise from their wishes. Autonomy is the most valued characteristic in a liberal democracy. Yet, how frequently do courts at present refer to children’s autonomy? The notion is to be found in use across different types of scenarios. The Committee on the Rights of the Child makes some reference to the term.73 It is occasionally referenced in the case law,74 although usually only in passing reference and sometimes taken to mean ‘capacity’.75 Although it may not yet have a coherent legal or even practical meaning in such cases, it is not entirely foreign to the courts.76 Would it be possible, therefore, to encourage a clearer understanding of what ‘autonomy’ is, the importance of it, and determine its place in cases where children’s best interests are being determined? 72 73 74 75 76

72

Boy in care quoted in Alison McLeod, “Respect or Empowerment? Alternative Understandings of ‘Listening’ in Childcare Social Work” 30 Adoption and Fostering 43 (2006), at 46. 73 Committee on the Rights of the Child, General Comment No. 20, note 24. The term is used twice in paras 9 and 34. 74 See for example Re J. (A Minor) [2016] ewhc 2430, para. 73 and Mabon v Mabon and others [2005] ewca Civ 634, para. 26. 75 See D. (A Child) (International Recognition) [2016] ewca Civ 12, para. 33. 76 It is often also used in health care literature, see for example Nicholas Lennings, “Forward, Gillick: Are Competent Children Autonomous Medical Decision Makers? New Developments in Australia” 2 Journal of Law and Biosciences 459 (2015); Rhonda Gay Hartman,

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It is clear that the word ‘autonomy’, albeit not perfect and sometimes misunderstood,77 better suits the notion which the right to be heard attempts to encapsulate, at the very least in personal decision-making. Unlike the ‘right to be heard’ it has connotations of an empowered individual; of control over one’s own destiny. It may be too absolute – implying that one is either legally ‘autonomous’ or ‘non-autonomous’,78 which simply brings us back to the starkly binary minority-majority age limit issue. However, it is understood here to constitute an ideal – something to be enjoyed unless this is genuinely not possible. It seems the obvious term to co-opt in order to try to progress children’s rights in this area. Children may not always get to choose an outcome for themselves, but it could be understood that this will be the aspiration. Adults have legal autonomy, children do not. But the in-out divide, whilst necessary in some circumstances (such as where children are in danger or where children do not wish to choose), should be surmountable in others. Children should enjoy autonomy where possible. Whilst most children prefer to make such decisions together with those whom they trust, in some circumstances children feel strongly about what they want and great distress when they do not get it.79 In any case, autonomy is not all about getting what you want – it is also about being supported to be involved and to make decisions on matters concerning oneself.80 Prioritising autonomy in best interest proceedings seems desirable and possible therefore. There are many challenges to supporting children’s autonomy; however, this is no reason not to seek solutions to problems which might arise (the threshold for overriding children’s wishes is considered in Chapter 6). ‘Autonomy’ is far more simple to understand than the right to be heard, and is in line with the principle of non-discrimination, which is that individuals should not be treated differently unless there is a good reason.81 ­Decision-makers 77 78 79 80 81

77

78 79 80 81

“Adolescent Autonomy: Clarifying an Ageless Conundrum” 51 Hastings Law Journal 1265 (2000) and generally Chapter 3. The term autonomy is not straightforward either, as considered in detail in Chapter 3. Interpreted incorrectly, for example, it can lead to vulnerable people being abandoned to life-threatening ‘choices’. See John Coggon, “Varied and Principled Understandings of Autonomy in English Law: Justifiable Inconsistency or Blinkered Moralism?” 15 Health Care Analysis 235 (2007), at 236. See Chapter 3, Section 2. See Section 4 below. See Chapter 7. For a consideration of non-discrimination and children, see further Claire Breen, Age Discrimination and Children’s Rights (Martinus Nijhoff Publishers, 2006) and Cordero Arce, note 15, at 305.

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would be compelled where they are overriding children’s preferences to at least explain why it is justifiable to treat the child differently to someone over the age of 18 years. Autonomy focuses the mind on the two major aspects of children’s interaction with proceedings: (1) the experience of taking part for children (including due process) and ensuring that it is empowering for them, and (2) the importance of outcomes, and the influence of children on outcomes, as crucial to children’s rights. 3.2 A Place for Paternalism In many ways it is understandable that we have been reluctant to use the powerful word ‘autonomy’ in relation to children. We feel a duty to protect children who are, on the whole, generally more vulnerable than adults. Schoenholtz poses the question, what makes children unique to the extent that they require a distinct set of legal standards? He continues: “[T]hey are distinct as human beings. They are developing beings, both cognitively and biologically, in contrast with adults.”82 Although some authors correctly strive to point to the problems with appearing to define children by what they are not,83 it is unhelpful to ignore the fact that children will at least in some circumstances require greater protection than adults. An infant cannot be assumed to have the autonomy rights of an adult. A two year old abandoned at home alone by parents to fend for herself will likely come to great harm, an 18 year old in the same circumstances will not. Some distinction needs to be made, and paternalism is inevitable. Paternalism, a word which evokes the protection of a father in respect of a child, is inherently geared towards the adult-child context, despite its more general usage in reality. Although there are no strict definitions, paternalism is defined in Oxford English Dictionary in terms of the protective actions of those with responsibilities for their charges: “The policy or practice of restricting the freedoms and responsibilities of subordinates or dependants in what is considered or claimed to be their best interests.”84 Van Boom and Ogus refer to the legal connotations of paternalism; that is that paternalistic legislation has traditionally been used to protect the estates of minors and individuals with cognitive impairment against the consequences of their own actions.85 They

82 83 84 85

82 83 84 85

Andrew Schoenholtz, “Developing the Substantive Best Interests of Child Migrants: A Call for Action” 46 Valparaiso University Law Review 991 (2012), at 999. See for example Cordero Arce, note 15. https://www.oxforddictionaries.com (last accessed 31 May 2016). Willem van Boom and Anthony Ogus, “Introducing, Defining and Balancing ‘Autonomy vs. Paternalism’” 3 Erasmus Law Review 1 (2010).

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point to the myriad examples of modern paternalism outside of this context, ranging from gambling regulation to restrictions on freedom of contract in marital issues; the commonality between these efforts being the substitution of individual decision-making with the preferred decision of the legislator or court.86 They also make a distinction between ‘weak paternalism’ – soft state intervention aimed at informing and influencing the decision-making process (that is ‘nudging’ individuals to ostensibly preferable outcomes) and ‘strong paternalism’ – a more interventionist method which aims to ensure that an individual’s ostensibly undesirable behaviour is altered or stopped, often through mandatory law.87 Where ‘best interest’ decisions are made by courts on behalf of under-18s on matters about which the responsible adults disagree, this can certainly be described as ‘strong paternalism’. The right to be heard has been introduced via the crc to mitigate this legal coercion of all under-18s. Yet the general legal incapacity of under-18s has not often been challenged on a fundamental level from the perspective of whether it is warranted, appropriate or justified. In the 1970s Holt,88 Farson89 and others challenged the fundamental societal approach to children but the fact that best interest proceedings take decision-making powers from children on personal, intimate matters has largely avoided any serious moral challenge.90 This appears quite staggering considering the importance accorded to autonomy as a principle, quality and ideal for adults. What is most striking in the literature, case law and general attitudes is the extent to which there is nearunanimity on the need to ‘protect’ children from their ostensibly inferior decision-making abilities. Steinberg points to broad acceptance of the denial of children’s autonomy as a duty rather than a restriction of an individual’s rights: A commitment to individual liberties is the hallmark of liberal s­ ocieties. Interfering with individuals’ self-determining decisions is considered morally justified, if at all, only in extreme circumstances. Paternalism tends to be frowned upon. When it is directed at children, however, 86 87 88 89 90

86 87 88 89 90

Ibid. Ibid. John Holt, Escape from Childhood (e.p. Dutton, 1974). Richard Farson, Birthrights: A Bill of Rights for Children (Macmillan, 1974). There have been some admirable attempts by Freeman and Eekelaar to tackle the wishes versus best interest issue of course. See for example Michael Freeman, The Rights and Wrongs of Children (Frances Pinter, 1983) and John Eekelaar, “The Interests of the Child

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paternalism is normally regarded as morally justified, or even morally required.91 Therefore despite the fact that only serious, usually life-threatening actions will warrant state interference for adults, these individual liberties that we so fiercely protect are denied to children almost without question.92 Steinberg poses the question that, if paternalism is taken to mean treating someone as a child, “what could be wrong with treating a child as if she is a child”?93 To answer her (somewhat rhetorical) question: First, every society defines childhood differently (in many contexts children have ‘adult’ responsibilities such as employment and parenthood)94 and therefore treating older children as lacking any decision-making capacity appears less self-evident. Secondly, what we consider as ‘like a child’, that is, the characteristics of childhood, is questionable at best. Archard points to our conceptualisation of children as a group as “cute, lovable creatures but, above all, weak, vulnerable and dependent” and points to the argument that to some degree this is for the purpose of suiting adult desires to protect and love rather than reflecting children’s actual nature, similar to the way in which constructing women as the ‘weaker sex’ fits with a male desire for domination.95 The adult-child dichotomy with which we are so comfortable does not stand up well against scrutiny – children can and do run households;96 adults can be incapable of looking after themselves. Lee suggests that the fallacy of adults and children as fundamentally different, with adults as complete and children as incomplete, “was always just a convenient fiction, a quick and easy way of avoiding confusion.”97 This over-simplified conceptualisation of the “riddle”98 of development, of the journey through life and the point at which (if indeed 91 92 93 94 95 96 97 98

and the Child’s Wishes: The Role of Dynamic Self-Determinism” 8 International Journal of Law, Policy and the Family 42 (1994). 91 Ingrid Steinberg, Paternalism and the Moral Status of Children (Unpublished dissertation, University of California, 2015), at 1. 92 Ibid., at 15. 93 Ibid., at 20. 94 Paula Fass, “Children and Globali[s]ation” 36 Journal of Social History 963 (2003), at 964. 95 David Archard, Children. Rights and Childhood (Routledge, 2004), at 218. 96 See Helen Meintjes et al., Child-Headed Households in South Africa: A Statistical Brief (2005). 97 Nick Lee, Childhood and Society: Growing Up in an Age of Uncertainty (Open University Press, 2001), at 9. 98 Lee, Ibid.

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it could be called a ‘point’) we are capable of making decisions, has created a powerful discourse of grown and growing, capable and vulnerable, competent and incompetent. This polarisation and exclusion of children has made it that much easier to devalue their wishes.99 The binary ‘child versus adult’ approach lacks nuance and to a large extent, unmodified, constitutes unfair discrimination against children on the basis of childhood. The law inclines towards binary classifications – guilty or innocent, above or below the age of majority or consent. It is unsurprising, therefore, that clarity of the legal definition of a child as for most purposes anyone under the age of 18 years is seen to outweigh any arbitrariness which this somewhat artificial cut-off point may involve.100 Because children are generally more vulnerable than adults, some degree of differentiation is acceptable (and necessary in some contexts), but sweeping differential treatment of any group of individuals should be treated with caution. It should be accepted that “at least some instances of paternalism directed at children are morally unacceptable” such as treating a 17 year old as an infant without justification.101 So efforts are needed to identify where it is acceptable to impose paternalism on children. It is of course not as straightforward as paternalism versus no paternalism. In the context of best interest proceedings, for example, it is argued in this book that it is not only outcomes in which children should have greater autonomy, they must also be assisted in exercising autonomy in the process of proceedings.102 They may require legal representation, advice, and time to come to conclusions about the outcome that they want. Although part of the argument in favour of ensuring better process and ­outcomes for children in best interest proceedings is a broad moral point  – children should not be treated detrimentally unless there is a very good ­reason – an even larger part of the argument is pragmatic and evidence-based. Many theorists emphasise a general need to shield children from proceedings, but there are so many arguments against this: Children generally express that they wish to be involved. Proceedings can and should be organised in a way that facilitates children to be involved where they wish to. Children can decline to take part. Some children have strong preferences as to outcomes. It is long-established that children frequently suffer harm where they are excluded from proceedings: 99 100 101 102

99

Berry Mayall, “The Sociology of Childhood in relation to Children’s Rights” 8 International Journal of Children’s Rights 243 (2000), 246. 100 Aoife Nolan, Children and Socio-Economic Rights (Hart, 2011), at 5. 101 Steinberg, note 91, at 22. 102 See in particular Chapter 7.

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Empirical studies indicate that the tradition of not listening to children’s voices during divorce processes has had unintended negative effects. Extensive research literature indicates that perceived control over decisions is related to positive mental health … This seems to be true in the case of children having no control over the outcome of divorce proceedings. As a result of their exclusion, children complain about feeling isolated and lonely during the divorce process, and many older youngsters express anger and frustration about being left out.103 It is crucial to separate out the instances in which paternalism really is ­warranted in best interest proceedings, for example where children should not be involved, or when they simply cannot get the outcome which they want.104 Yet at present this does not occur. Because the overly-cautious right to be heard does not set a clear standard for involving children in proceedings,105 paternalism can be easily used to exclude children. It is certainly used as an excuse when in actual fact it is resources, not protection, which is the real obstacle to hearing children.106 Using a notion of ‘autonomy’ – with strict limitations on when children’s wishes can be overridden – instead of a ‘right to be heard’ would further the aim of insisting on paternalism only where it is genuinely needed. 4

Do Children Want Autonomy in Proceedings? Just know that children aren’t just children. That they have opinions, that they are not stupid they know what goes on and they are capable of being able to recogni[s]e what they want …107

Children wish in some circumstances to have a determinative say – for example in the most difficult of cases where family relationships have become so 103 104 105 106 107

103 Joan Kelly, “Psychological and Legal Interventions for Parents and Children in Custody and Access Disputes: Current Research and Practice” 10 Virginia Journal of Social Policy and the Law 129 (2002), at 148. See also Gary Melton, “Parents and Children: Legal Reform to Facilitate Children’s Participation” 54 American Psychologist 935 (1999), at 938. 104 This matter is considered extensively in Chapter 6. 105 See Sections 5 to 7 below and also Chapter 4. 106 See further Chapter 4, Section 2.4. 107 Child quoted in Anne Graham and Robyn Fitzgerald, “Taking Account of the ‘To and Fro’ of Children’s Experiences in Family Law” 31 Children Australia 30 (2006), at 38.

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damaged that the usual rules of family affection and loyalty no longer apply.108 The majority of children, however – in family life, medical treatment and even less contentious family law proceedings – report that they instead wish to be treated as respected agents in the decision-making process. Therefore though children do not always want to make the decision themselves (some do) – they generally wish to make the decision together with trusted others, and to be supported in this process. 4.1

Children Generally Want to Decide Together with Others And you should try to balance the votes … instead of one person like just Mum or Dad saying yes, this is what’s going to happen, like yes and no to something and without giving me and my brothers any say in it.109

There is much variation as to the influence which children wish to have in decision-making.110 There are very few, if any, research studies which try to explicitly establish the extent to which children want to have a determinative say in best interest proceedings. Some research examines children’s ‘views’ of ‘participation’ in such proceedings generally, however, and also research in other contexts such as healthcare is informative. Although much of the research – and consequently many of the participants111 – muddle ‘participation’, ‘being heard’ and ‘having a determinative say’ we can gather some impressions of the position that children wish to hold in legal decision-making concerning them. What most children really want is to be included in the decision-making processes – they feel that this accords them respect and dignity.112 In the health care context, Alderson found that most children felt that children, parents, and doctors should decide together. In the event of a disagreement, the most 108 109 110 111 112

108 Bren Neale and Carol Smart, Good to Talk: With Children after Divorce (Nuffield Foundation, 2001), at 16–7. 109 Child quoted in Lisbeth Pike and Paul Murphy, “Invisible Parties: Listening to Children: A Social Science Perspective” Paper presented at Australian Family Law Conference (Perth, 24 Oct. 2006), at 7. 110 See for example, Megan Gollop, Anne Smith and Nicola Taylor, “Children’s Involvement in Custody and Access Arrangements” 12 Child and Family Law Quarterly 396 (2000). 111 See McLeod, note 72, at 43–52. 112 Virginia Morrow, “We are People Too: Children’s and Young People’s Perspectives on Children’s Rights and Decision-Making in England” 7 International Journal of Children’s Rights 149 (1999), at 152.

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c­ ommon answer that children gave was that they would accept their parents’ view, and the next most popular option was “to negotiate.”113 Children often recognise that they require the expertise of others to come to the conclusions that are right for them: Even if they had asked me, I wouldn’t have known which foster unit to choose. I didn’t know anybody around the place [in the children’s village] but now I am good here.114 It seems that particularly in low-conflict family law cases generally most children do not want to make decisions by themselves.115 As one girl said in Cashmore’s research: I don’t think it should go their [children’s] way, but I think they should have a say in what happens.116 Some children refer to wanting to avoid pressure, and to avoid the risk of upsetting parents: I wouldn’t have wanted to make a choice. Like, I wouldn’t have done it. I wouldn’t put one of them in that sort of – like, ‘I choose them and not you’ … ask the kids but don’t like have a lot of pressure on them.117 When it comes to general family life, children likewise seem to accept that they don’t have an authoritative say in the day-to-day matters. They recognise that they need to have some help in making decisions118 and that the degree of autonomy they should enjoy “depends on what is being decided”.119 They want guidance from adults.120 It is unsurprising and very wise – children want assistance from those they know and trust. There is strength in numbers, so to have someone in your corner is vitally important. In the healthcare context, one ten year old noted the importance of involving her mother in such decisions and information-sharing: [I]f the doctor just talks to us children and he doesn’t tell your mum, then your mum won’t know what to look for [if something goes wrong].121 Many children are very modest and fair about what they expect 113 114 115 116 117 118 119 120 121

113 Priscilla Alderson, Children’s Consent to Surgery (Open University Press, 1993), at 164. 114 Fourteen year old girl in care in Greece, quoted in European Commission, note 1, at 167. 115 See for example Alan Campbell, “The Right to be Heard: Australian Children’s Views about their Involvement in Decision-Making Following Parental Separation” 14 Child Care in Practice 237 (2008). 116 Sixteen year old girl quoted in Judy Cashmore, “Children’s Participation in Family Law Decision-Making: Theoretical Approaches to Understanding Children’s Views” 33 Child Inclusive Research, Policy and Practice, Children and Youth Services Review 515 (2011), at 517. 117 Ibid, at 518. 118 Morrow, note 112, at 160. See also Butler, Scanlon and Robinson, note 31. 119 Morrow, ibid, at 166. 120 Ibid, at 152; and Butler, Scanlon and Robinson, note 31, at 39. 121 Mary Donnelly and Ursula Kilkelly, “Child-Friendly Healthcare: Delivering on the Right to be Heard” 19 Medical Law Review 27 (2011), at 37.

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from the process: Well, I wanted people to ask me because I just wanted my, not my say like ruling everything, but I wanted a say in it to help me.122 Thomas and O’Kane report that children in care appear more accepting of adults’ decisions when they were made with the child’s physical safety in mind, but less so where those decisions are based on a more vague concept of their best interests.123 This accords with the argument being made in favour of the children’s autonomy principle, that a more solid sense of risk should be required before children’s wishes can be overridden. This is not to say that physical harm is the only significant harm, but that a vague notion of perceived future harm should not suffice.124 4.2

Some Children Very Much Want to Decide Themselves Maybe if I had stood stronger and tried to say well I want contact … But at 13, how do you know how to stand your ground …125

4.2.1

Children are More Likely to Want a Determinative Say in Protracted Family Law Cases In spite of the generally modest expectations of children about their levels of influence in most circumstances, there is a cohort within which children have very clear ideas about what they want, and are unafraid to ask for (or demand) it. In family law, the knowledge and understanding of this group around the disputes of their parents, and their lack of reluctance to state their wishes, undermines the insistence of many commentators that children may be put under pressure, caught in compromising positions between parents, and that they should consequently be ‘shielded’ from proceedings.126

122 123 124 125 126

122 Eleven year old girl with experience of family law proceedings describing her conversation with her children’s guardian (a court-appointed representative of her interests and wishes), quoted in Gillian Douglas et al., Research into the Operation of Rule 9.5 of the Family Proceedings Rules, 1991 (Department for Constitutional Affairs, 2006), at 69. 123 Thomas and O’Kane, note 46, at 147. 124 See further Chapter 6. 125 Nineteen year old young lady care leaver expressing regret about a lost relationship with her now deceased uncle. Quoted in Meredith Kiraly and Cathy Humphreys, “Perspectives From Young People about Family Contact in Kinship Care: ‘Don’t Push Us: Listen More’” 66 Australian Social Work 314 (2013), in section entitled “Age of the Child”. 126 This point is made, for example by Cashmore, note 116, at 519–20; Pike and Murphy, note 109; Nicola Taylor, “What do we Know about Involving Children and Young People in Family Law Decision Making? A Research Update” 20 Australian Journal of Family Law 154

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Although many children acknowledge that it may be difficult to express views and/or preferences in parental disputes, many children have been found to be adamant that they can and should do this, because it is their lives which are being affected, and it is children themselves who have to live with the outcome.127 Very frequently, children who fall into this group have families with many problems, with entrenched, long-running conflicts, which leave children in no doubt about the outcome they wish to see.128 Common family dynamics may no longer apply129 in family law cases which may feature entrenched disagreement, and perhaps violence and abuse, as children’s trust in some family relationships can be deeply undermined.130 Their wishes can consequently be stronger, and they may be less concerned about upsetting people by expressing those wishes.131 They are far more likely to insist on their preference.132 These children do not seek negotiation or participation in the process – they want to have the right to a determinative say.133 One of the main areas of contention when considering how much say children should and do have in these decisions, is that children very strongly do not think that it is acceptable to be forced to see a parent against their wishes.134 When one considers the unhappy reality of being coerced into a personal relationship which is negative, one can understand why. As a 16 year old girl explains in one study: I didn’t see the point in going there [if I was just being ignored]. And it just went on until I was 12 or 13 when I had enough guts to say ‘no’. I said ‘no’ and just didn’t go.135 It is clear from the empirical research136 and the case law137 that forced contact is a common occurrence. Systems are generally 127 128 129 130 131 132 133 134 135 136 137

127 128 129 130 131 132 133 134 135 136 137

(2006); Vanessa May and Carol Smart, “Silence in Court?: Hearing Children in Residence and Contact Disputes” 16 Child and Family Law Quarterly 305 (2004); Neale and Smart, note 108, at 16–7 and Carol Smart and Bren Neale, “‘It’s My Life Too’: Children’s Perspectives on Post Divorce Parenting” Family Law 163 (2000), at 166. Pike and Murphy, note 109, at 7. May and Smart, at 315. Neale and Smart, note 108, at 16–7. Cashmore, note 116, at 519–20. Ibid. Taylor, note 126. Smart and Neale, note 126, at 166. Gollop, Smith and Taylor, note 110. See the many case examples considered in Chapter 6. Cashmore, note 116, at 518. See further Chapter 5, Section 4.3.2. See for example, Douglas et al., note 122; Pike and Murphy, note 109; Taylor, note 126; May and Smart, note 126. See Chapter 5.

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very poorly designed for children trapped in a situation where they absolutely do not want contact, yet the estranged parent is seeking it anyway through the courts. The inclination in favour of parents’ rights (usually fathers’ rights, because care dynamics mean they are usually the non-resident parent) in the guise of a “child’s right to contact”138 is so prevalent, and the notion that children are incompetent is so strong,139 that these are the children whose wishes are typically overridden in best interest proceedings. 4.2.2 Children in Care Often Want a Determinative Say Likewise, children in care also seek greater control over the decisions being made on their behalf. In the Scottish Children’s Hearings system, for example, children report that a positive hearing outcome is when the decision made reflects their wishes.140 Some children feel frustrated at not having the outcome they wanted: A 15 year old girl stated, for example, that if the decision’s not what I wanted then I feel like they haven’t really listened to me …141 Panels often make decisions which are against the wishes of the children involved.142 Yet two thirds of children express the view that they had been helped by decisions made in the hearings system,143 primarily due to changes in the behaviour of family members,144 perhaps indicating the extent to which children can accept decisions not in line with their wishes. Although many children in care have good relationships with professionals, which can make a huge difference to their lives,145 one significant problem which the research seems to demonstrate is the disjoint between what being ‘heard’ means to children in care on the one hand and to adults on the other. McLeod’s research has highlighted that children in care seek a ­determinative 138 139 140 141 142 143 144 145

138 In the context of England and Wales, for example see Re W. (A Minor) (Contact) [1994] 2 flr 441, in which the judge opined that “contact with a parent is a fundamental right of a child, save in wholly exceptional circumstances” and likewise Re R. (A Minor)(Contact) [1993] 2 flr 762. This point is examined in detail in Chapter 5, Section 4.3.2. 139 See Chapter 5, Section 1.3. 140 Children’s Hearings Scotland, Children and Young People’s Views and Experiences of Children’s Hearings: A Summary (Children’s Hearings Scotland, 2014), at 15. 141 Ibid. 142 Scottish Children’s Reporter Administration, The Children’s Hearings System: Understood and Making a Difference (Scottish Children’s Reporter Administration, 2011). 143 Ibid. 144 Ibid, at 5. 145 Margaret Bell, “Promoting Children’s Rights Through the Use of Relationship” 7 Child and Family Social Work 1 (2002), at 1.

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say, not ‘participation’.146 Social workers, however, expressed beliefs that hearing children involved communication and consultation, and emphasised the justifiability of overruling children’s wishes where this was ‘necessary’ on welfare grounds.147 McLeod identified that “while the social workers believed they were listening, and could describe detailed efforts they had made to elicit children’s views, the young people, in the main, did not feel they had been heard.”148 This appears to be because many children in this context seek to have their wishes upheld rather than to have conversations about their views. Although children in care do appreciate a sympathetic listener, they primarily want to see concrete outcomes from a ‘hearing’ process, outcomes which improve their situation in the way they wish.149 4.3 Concluding Thoughts on Children’s Views of Autonomy The main findings in the research appear to be that children generally want to be involved in joint decision-making with others, rather than being the sole decision-maker. This is very much in line with the relational nature of decision-making, whereby both adults and children make their decisions based on the needs of both themselves and their loved ones.150 Importantly, however, there is a minority of children – primarily in the most difficult cases – who strongly want the right to decide for themselves. These are the children who are particularly disadvantaged by the unbridled paternalism of the best interest principle. The proposed children’s autonomy principle accommodates all children, however (as opposed to solely those who know and express immediately the outcome they desire), because it facilitates children to enjoy the approach to their autonomy which they themselves prefer. They can opt to have no involvement in proceedings; they can ‘give views’ but opt-out of the presumption in favour of their wishes (leaving it to adults to ultimately settle the issue); or they can achieve their desired outcome (unless significant harm will likely result).151 146 147 148 149 150 151

146 McLeod, note 72, at 43–52 and Alison McLeod, “Whose Agenda? Issues of Power and Relationship when Listening to Looked-After Young People” 12 Child and Family Social Work 278 (2007), at 278–86. 147 See also Elizabeth Fern, “Child-Directed Social Work Practice: Findings from an Action Research Study Conducted in Iceland” 44 British Journal of Social Work 1110 (2014), at 1112. 148 McLeod, note 72, at 280. 149 Bell, note 145. 150 See Chapter 3, Section 2.3. 151 These issues are explored in detail in Chapter 6.

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Why the Text of crc Article 12 is Flawed Like some of the words I couldn’t even understand … they could have been speaking Chinese.152

In this section the text of Article 12 is examined in detail in order to determine where its strengths and weaknesses lie, and to see how it measures up to comparable standards for adults. This generates consideration of whether an alternative textual provision for children’s rights in proceedings – one based around the concept of autonomy – would be preferable. An alternative text on the basis of this analysis is presented below in Section 8. 5.1 The Drafting of Article 12: Muddying the ‘Best Interest’ Waters To understand the evolution of crc Article 12, one has to examine the travaux153 – drafting documents – of the crc. An important point arising from the travaux is that the best interest principle and the right to be heard were originally explicitly linked together in one provision, and their ultimate separation has added to the problems with identifying what the right to be heard in proceedings is for and how it should be implemented. During the crc drafting process the us delegation submitted a draft of ­Article 3 concerning the best interest principle. This proposed provision simultaneously included the right to be heard in proceedings, even though the latter right had also been provided for in another article, draft Article 12, which outlined a right to be heard generally (that is in all matters, rather than just proceedings). The proposed text of Article 3 read: 1. 2.

In all official actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, or administrative authorities, the best interests of the child shall be a primary consideration. In all judicial and administrative proceedings affecting a child that has reached the age of reason, an opportunity for the views of the child to be heard as an independent party to the proceedings shall be provided,

152 153

152 Child quoted in Pike and Murphy, note 109, at 7, explaining the difficulties understanding court processes and language used by associated adults. This child is not specifically referring to crc Article 12. 153 The travaux préparatoires of a treaty is “the record of the drafting of the treaty” (David Harris, Cases and Materials on International Law [6th edn, Sweet and Maxwell, 2004], at 840). The travaux documents are often useful in clarifying the intentions of the drafters of a treaty.

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and those views shall be taken into consideration by the competent authorities.154 It was highlighted in the final stage of the drafting of the Convention in 1989 that the scope of draft Article 3(2) – hearing children in proceedings – overlapped with the scope of draft Article 12, which contained the right of children to express views generally. It was agreed that paragraph 2 would be deleted from draft Article 3, and that hearing children in proceedings would instead be discussed under draft Article 12.155 The early draft of Article 3 highlights the belief on the part of the drafters that the right to be heard should be part of the process of determining the best interest of the child. What it also demonstrates is that the initial intention of drafters was for the right to be heard to serve as a power-check in the process of best interest proceedings – a way to ensure that the child as an individual with due process rights was not forgotten by the decision-making adults. The early draft contains a lot more than a right to be heard – it mentions status for the child as “an independent party to the proceedings.” This status is far more distinct, and involves greater power for children, than just being heard. When best interests and the right to be heard were separated out into Articles 3 and 12 respectively, however, the impact and significance of the status which was to be accorded to children was lost. Although Article 12 does mention “proceedings” as an arena in which children should be heard, this no longer involved a right to party status, and the term ‘best interest’ is not explicitly included in Article 12.156 crc Article 12 refers to hearing children in “all matters” – the drafters wished to ensure that the right would apply to a broad range of scenarios.157 Article 12 therefore necessitates that children are heard in the family, in school, and in politics, for example. Whilst the breadth of the right to be heard is positive in one sense, the decision to remove the clear best interest/right to be heard relationship detracts from two crucial matters. First, whilst proceedings are mentioned, Article 12 fails to emphasise the best interest proceedings ­element, 154 155 156 157

154 Travaux Préparatoires of the Convention on the Rights of the Child, Considerations of 1981 Working Group, E/CN.4/L.1575, para. 20. Accessed in Sharon Detrick, Jaap Doek and Nigel Cantwell, The Convention on the Rights of the Child: A Guide to the Travaux Préparatoires (Martinus Nijhoff, 1992). 155 Travaux Préparatoires of the Convention on the Rights of the Child, Considerations of 1981 Working Group, E/CN.4/1989/48, para. 235. Accessed in Detrick, Doek and Cantwell, ibid. 156 For further consideration of party status for children, see Chapter 4, Section 3.3.3. 157 Travaux Préparatoires of the Convention on the Rights of the Child, Considerations of 1981 Working Group, E/CN.4/L.1575, para.74. Accessed in Detrick, Doek and Cantwell, note 154.

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and in particular the complexities of where children’s wishes should be positioned in proceedings. The second section of Article 12 refers to a right to be heard in both judicial and administrative proceedings – it essentially means the same thing as hearing children in best interest proceedings, but the term ‘best interest’ is no longer explicitly in the provision (as it would have been in the original Article 3[1]). The impact of this on our conceptualisation of the best interest/right to be heard relationship has likely been significant. Article 12 does emphasise that children should be “particularly” heard in proceedings, however this is not the prominent point in the provision – the prominent point is an obligation to hear children in a very general way. This greatly obscures the importance of best interest proceedings (not least because best interests are not explicitly mentioned) and the denial of children’s legal autonomy which such proceedings necessarily involve. It seems obvious that vindicating someone’s wishes will usually be in their best interests, and therefore should be prioritised, in personal matters. Yet it is difficult to bring this point to the fore when the focus of Article 12 is on ‘hearing’ children in a very general way, across all areas of life. 5.2

Interpretation of Article 12: Adults Firmly in Charge I get no say to see my [siblings] or my Mum. I can’t just go and see them. I think I should have full say about who I see. They are my family. I should be allowed to see them.158

The text of Article 12 is full of qualifications. In order to be heard, a child should be in a situation where proceedings “affect” her, she must be “capable of forming … views”. Those views must be “her own”. Once the expression of views has occurred, those views will be given “due weight”, although this phrase is rarely used in case law in reality.159 Adults will consider “age and maturity” to determine the degree of weight, despite the fact that there is little agreement on how or even whether children’s ‘competence’ can or should be measured.160 There are many, many obstacles for children to overcome before they can access the right to be heard. In spite of (or probably because of) these complexities inherent in Article 12, there has been little in the way of efforts to clarify the meaning of the right to be heard in proceedings from the perspective of children’s autonomy interests. The un Committee on the Rights of the Child comments 158 159 160

158 Child in care quoted in Fitzgerald and Graham, note 107, at 494. 159 See Chapter 5, Section 1.3. 160 See Chapter 3, Section 7.

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on aspects of Article 12 have been helpful, as outlined below, but are not considered ‘hard’ law. General Comment on Article 12161 has provided some elaboration on ­Article 12 generally but does not answer many of the questions raised in this chapter. It is inevitably a broad, generalised document designed to address ‘participation’ across all contexts. What is evident from case law, policy, and empirical research is that an overly-‘protective’ approach is most commonly taken when those questions arise in practice at national level.162 The nature of the text of Article 12 permits adults to retain almost all of the power; to sometimes make determinations lacking in rationale and transparency, ostensibly on the basis of some vague notion of protection.163 A closer look at the concepts raised in Article 12 will demonstrate more clearly how the text of this provision appears to render these problems inevitable. 5.2.1

Who is “Capable of Forming Views”? The Dilemma of Younger Children [S]ometimes a lot of children’s opinions are more logical or sometimes sensible than a lot of ones that adults might have.164

There is no age limit set by Article 12 under which children should automatically be denied the right to be provided the opportunity to be heard. The text refers solely to the child “capable of forming his or her own views” without designating any specific cut-off point. The term “age of reason” was rejected by delegates as the determining point at which children would be heard.165 Some delegates believed that it could be very difficult to determine when a child had reached such a point, although the “age of reason” is generally considered 161 162 163 164 165

161 Committee on the Rights of the Child, General Comment No. 12: The Right to be Heard (1 July 2009) CRC/C/GC/12. Hereafter referred to as ‘General Comment No. 12.’ 162 There can unfortunately be resistance to the relevance of general comments, see for example A.B. (A Child), R. (On the Application Of ) v The Secretary of State for Justice [2017] ewhc 1694, para. 113, where the court said that it would “not attach any real weight” to a general comment. On one rare occasion where General Comment No. 12 was considered by a national court, it was in fact used to limit the child’s involvement in proceedings. See P.–S. (Children) [2013] ewca Civ 223 considered in Chapter 4, Section 3.3.4. 163 See for example, Michael Freeman, “Rethinking Gillick” 13 International Journal of Children’s Rights 201 (2005), at 209 and Chapter 5, Section 1.3. 164 Child quoted in Alan Campbell, “I Wish the Views Were Clearer: Children’s Wishes and Views in Australian Family Law” 38 Children Australia 184 (2013), at 187. 165 Travaux Préparatoires of the Convention on the Rights of the Child, Considerations of 1981 Working Group, E/CN.4/L.1575, para. 20. Accessed in Detrick, Doek and Cantwell, note 154.

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to be seven years in common law systems.166 The term “capable of forming his or her own views” on the other hand does not necessarily imply a lower age limit. The positive aspect of this is that it leaves open the possibility for a broad interpretation of capacity to form views (even under age seven), and it is possible, in theory at least, to facilitate children of any age to be “heard” in proceedings. What this may mean for non-verbal children – that is, those who are infants, toddlers and children with disabilities – will be considered below. Of course the enormous downside to this open-ended and non-prescriptive text is that, in reality, it is entirely open to adults to decide when a child is “capable of forming his or her own views”. During drafting, unicef raised the point that in introducing this proviso, Article 12 was introducing a new restriction on freedom of expression.167 Adults do not have to demonstrate that they are capable of forming their own views before they can, for example, initiate proceedings, make submissions to the court, or instruct a lawyer. Furthermore, whether one’s views are ever truly one’s ‘own’ is debatable – children are influenced by those around them just as we all are.168 The point here is that the language is vague, problematic, and exclusionary. Article 12 sets both children and professionals up for major problems when it comes to defining the parameters of children’s involvement in proceedings. Examples of case law from around the world demonstrate that, in practice, it is falling to judges to make the determination as to whether a child has capacity, in spite of repeated statements from the Committee that child development professionals should carry out this function.169 The Committee has frequently expressed concern that age limits prevent younger children from enjoying their right to be heard,170 and that the decision as to whether children are capable of forming views should be made on “a case-by-case basis.”171

166 167 168 169 170 171

166 Common law prevails in England, Ireland, the us and other states previously colonised by Britain and there is some basis in developmental psychology for this approach according to child psychiatrists Theodore Shapiro and Richard Perry (see their article, “Latency Revisited: The Age of Seven, Plus or Minus One” 43 Psychoanalytic Quarterly 79 [1976]). See further Chapter 3, Section 7. 167 Travaux Préparatoires of the Convention on the Rights of the Child, Considerations of 1981 Working Group, E/CN.4/L.1575, para. 21. Accessed in Detrick, Doek and Cantwell, note 154. 168 See further Chapter 3, Section 2.3 and Chapter 6, Section 4. 169 See for example, para. 36 of General Comment No. 12, note 161. See also Committee on the Rights of the Child, Concluding Observations: Ireland (29 September 2006) CRC/ C/IRL/CO/2, para. 23. 170 See, for example, Committee on the Rights of the Child, Concluding Observations: Kazakhstan (7 October 2003) CRC/C/OPSA/KAZ/1, para 30. 171 Committee on the Rights of the Child, General Comment No. 12, note 161, para. 52.

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A presumption in favour of the capacity to form views should exist, the Committee states, and the onus should be on authorities to prove that children are not capable of forming views, where they believe that this is the case.172 Nevertheless a number of states have instead set minimum ages below which children will not be heard in proceedings. Significant variation in state practice is evident from state reports. Some minimum ages outlined are 10 years (Albania, Slovenia and Kazakhstan),173 15 years (Eritrea and Finland);174 and even 16 years (China);175 demonstrating that such minimum ages can be set very high indeed.176 There is also a question about whether non-verbal children have a right to be heard. An infant is not going to instruct a solicitor, or verbalise a preference as to contact or residence arrangements. Yet at the same time, any child can form a view. Anyone with experience of infants, for example, will know that they can communicate their wishes and needs from their earliest moments, and so are in some sense capable of forming them. Indeed, in my court observations in Ireland, one incident where a judge spontaneously interpreted the behaviour of an infant strikingly demonstrated the potential power of ­non-verbal communication.177 But how these ‘abilities’ could or should be positioned under the Article 12 right to be heard is not specified. The Committee has adopted a broad definition of how young children can form views, even stating that 172 173 174 175 176 177

172 Committee on the Rights of the Child, General Comment No. 12, ibid, para. 20. 173 Committee on the Rights of the Child, Concluding Observations: Slovenia (2005) CRC/C/15/Add. 230, para. 25, Committee on the Rights of the Child, Concluding Observations: Kazakhstan (2003) un Doc CRC/C/15/Add.213, para. 30, Committee on the Rights of the Child, Concluding Observations: Albania (31 March 2005), CRC/C/15/Add.249, para. 30. 174 Committee on the Rights of the Child, Concluding Observations: Eritrea (6 June 2003) CRC/C/41/Add.12, para 25, Committee on the Rights of the Child, Concluding Observations: Finland (20 October 2005) CRC/C/15/Add.272, para. 22. 175 Committee on the Rights of the Child, Concluding Observations: China (24 November 2005) CRC/C/83/Add.9, para. 37. 176 The Committee on the Rights of the Child “recommends that States introduce minimum legal age limits, consistent with the right to protection, the best interests principle” (para. 39) but does not elaborate on what it means by this. Committee on the Rights of the Child, General Comment No. 20, note 24. 177 In one family law case I observed, the judge guessed from the baby’s reaction that father and child had never met before. Court outside Dublin, 7 Jan. 2009. Aoife Daly, The International Legal Right of Children to be Heard in Civil Law Proceedings Affecting them (Unpublished Ph.D. Thesis, Trinity College Dublin, 2010), at 349. See further Chapter 4, Section 3.3.2.1.

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“non-verbal forms of communication including play, body language, facial expressions”178 but the obligations that this may place on states is unclear. Would a ‘social report’ – one based on observing the child and her family, and findings transmitted to court179 – constitute vindication of the right to be heard for non-verbal children? If there must exist a presumption that children can form views, and that non-verbal communication should be considered, then this implies that non-verbal children have a right to be ‘heard’ in proceedings too.180 Yet there is little sense of the ‘right’ of young children to a social report when best interest decisions are being made about them by courts. The overriding assumption is that the right to be heard is primarily for older children. In contrast to the shortcomings in the arena of proceedings, there have been significant developments in facilitating children’s views on and involvement in other areas, for example in the pre-school context181 and in social research.182 The fact that there is a lack of clarity around the rights of young children in best interest proceedings demonstrates once more that the text of Article 12 does not serve children well in this context. It should be made clear that for children who are non-verbal, social reports by an independent expert are necessary in order for them to be ‘heard’ in best interest proceedings. 178 179 180 181 182

178 Committee on the Rights of the Child, General Comment No. 12, note 161, para. 21. See also Committee on the Rights of the Child, General Comment No. 14 on the Right of the Child to Have His or Her Best Interests Taken as a Primary Consideration CRC/C/GC/14 (29 May 2013), para. 44. 179 In England and Wales for example courts can order such reports under the Children Act 1989 Section 41, and in Ireland these reports can be ordered under the Child Care Act 1991 Sections 20 and 47. 180 The pros and cons of such reports are considered in Chapter 4, Section 3. 181 See for example Jenny Byrne, Willeke Rietdijk and Sue Cheek, “Enquiry-Based Science in the Infant Classroom: ‘Letting Go’” 24 International Journal of Early Years Education 206 (2016); Elizabeth Ann Wood, “Free Choice and Free Play in Early Childhood Education: Troubling the Discourse” 22 International Journal of Early Years Education 4 (2014); Elizabeth Dunphy, “Children’s Participation Rights in Early Childhood Education and Care: The Case of Early Literacy Learning and Pedagogy” 20 International Journal of Early Years Education 290 (2012); Susan Danby and Ann Farrell, “Accounting for Young Children’s Competence in Educational Research: New Perspectives on Research Ethics” 31 Australian Educational Researcher 35 (2004). See also Gerison Lansdown, Can You Hear Me? The Right of Young Children to Participate in Decisions Affecting Them (Bernard Van Leer Foundation, 2005); Judy Miller, Never Too Young: How Young People Can Take Responsibility and Make Decisions (Save the Children uk, 2003). 182 See for example Christine Pascala and Tony Bertrama, “Listening to Young Citizens: The Struggle to Make Real a Participatory Paradigm in Research with Young Children” 17

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The notion of autonomy can and should be relevant to the best interest determination even for non-verbal children. For this group their experiences and behaviours (as determined by a social report) rather than their explicitly expressed wishes will inform decision-makers about their position, and about what might be considered to be their ‘views’. However, explicitly requiring that children of all ages are to be perceived as individuals – even potential decisionmakers – is important. It will require judges to make determinations on behalf of children as individual rights-holders, and this will likely make quite a difference to the priority accorded to children’s perspectives, even if they cannot yet directly verbalise them. It will incline away from an approach to children that is overly-deferent to the parental position (or the position of another ­authority). This is in line with a principle of respect for autonomy. 5.2.2

“Providing the Opportunity”: How Much Support Will Children Receive? I kept asking my mum if I could just go into court and tell them and make it a lot easier … I’d just tell them.183

The crc stipulates that states “shall assure” to children the right to be heard (Article 12[1]), and in particular children should be “provided the opportunity” in proceedings affecting them (Article 12[2]). To provide the opportunity to be heard, children must of course be informed about the fact that they are in possession of this right.184 The Committee states this must be done “in a child friendly manner”185 and that the term “shall assure” is of particular strength, leaving no discretion for states – they must implement the standard.186 The Committee is to be commended for highlighting that the terminology compels states to act, and that this has to be done in a way suited to children’s 183 184 185 186

183 184

185 186

European Early Education Research Journal 249 (2009); Rosie Flewitt, “Conducting Research with Young Children: Some Ethical Considerations” 175 Early Child Development and Care 553 (2005); Priscilla Alderson, “Research by Children: Rights and Methods” 4 International Journal of Social Research Methodology: Theory and Practice 139 (2001). Eleven year old boy with experience of family law proceedings, quoted in Douglas et al., note 122, at 59. Richard Chisholm, “Children’s Participation in Family Court Litigation” Paper presented at International Society of Family Law 10th World Conference (Brisbane, 9–13 Jul. 2000), at 24. Committee on the Rights of the Child, Day of General Discussion on the Right to be Heard, Forty-third session, 11–29 September 2006, para. 40. Committee on the Rights of the Child, General Comment No. 12, note 161, para. 19.

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needs. However, in reality, resource considerations incline against this and Article­12 does not explicitly emphasise that children should have the opportunity to be involved at all stages of proceedings. Where children are not recognised as crucial individuals, agents, and rights-holders from the very beginning of legal processes, then it is easy to neglect altogether this status, rendering completely ineffective their right to be involved. In a context where resources are tighter than ever, the temptation to exclude children from most of the process, and to just be heard in some of it, is evident.187 A clearer obligation to ensure children are heard at all stages is necessary. Children will need preparation and support to be involved in proceedings.188 It is emphasised by the Committee that elements of the process must be explained to children, such as how the proceedings work, whether they can have a representative, and how their views will make an impact.189 The Committee also makes the point that states should not just ensure children are heard, but also positively encourage children to provide views.190 Whilst this is a very progressive interpretation by the Committee, there is not an explicit indication in the text of Article 12 that such support is required,191 and in practice children frequently feel unsupported which indicates that states often disregard the support factor.192 Of course, support provided must be child-friendly193 to be effective and this requires resourcing training, facilities and services accordingly. Children cannot be involved freely in proceedings if those processes are totally alienating to them. To this end, the Committee makes a number of practical recommendations, stating that relevant environments should involve the provision of childfriendly information, and attention to “adequate support for self-advocacy, 187 188 189 190 191 192 193

187 See Chapter 4, Section 2.4 and in particular R. (R. and Others (Minors)) v cafcass [2012] ewca Civ 853. 188 See Chapter 7, Sections 3 and 4. 189 Committee on the Rights of the Child, General Comment No. 12, note 161, para. 41. 190 Ibid, para. 11. 191 The word “freely” in Article 12 implies assistance is necessary, for how freely can a child be heard without the support she requires? But this of course is open to interpretation. The Committee (ibid) does emphasise that states have an obligation to generally provide “adequate support” (para.48); a child-friendly environment; and the training necessary for adults to facilitate this (at 29), but this is not specific to proceedings. 192 See Chapter 4, Section 2.3.3. and Chapter 7 in which a focus on the concept of ‘autonomy support’ is proposed. 193 For detailed consideration of this term, see for example, Council of Europe Guidelines, note 23.

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appropriately trained staff, design of court rooms, clothing of judges and lawyers, sight screens, and separate waiting rooms.”194 To achieve the desired environment, then, it seems that states are obliged to drastically rethink traditional courtrooms and legal environments. Yet in general, this simply has not happened. There have been some isolated national initiatives,195 and significant interest from regional human rights mechanisms in child-friendly justice.196 Yet crc Article 12 has not inspired a broad rethink of proceedings and how they can be made child-friendly. If a more striking and clear term such as ‘autonomy’ was used in its place, it is likely­ that greater consideration would be given to how to facilitate such change, and greater efforts would have to be made in order to facilitate children in these challenging systems in a way that better suits their needs (and autonomy rights). For children to be accorded a ‘right to be heard’ there appears to be an assumption that the hearing process will happen well away from the proceedings themselves; that children will not be present at proceedings, that they will not meet decision-makers, and that adult gate-keeping will be the overriding feature of their involvement. As is outlined in Chapter 3, ‘autonomy support’ is a well-known concept in child psychology,197 and one which is understood to be crucial to positive child development and consequently well-being. Children must not only feel that they have some control over their environment, but that they have support 194 195 196 197

194 Committee on the Rights of the Child, General Comment No. 12, note 161, para. 34. 195 See Chapter 4, Section 2.3. 196 See for example the Council of Europe Guidelines on Child-Friendly Justice, note 23, which aim to improve and adapt justice systems for children, and the Inter-American Court of Human Rights (2002) Juridical Condition and Human Rights of the Child, Advisory Opinion OC-17/2002 of 28 Aug. 2002, which considers the fact that children’s lack of ‘capacity’ often denies them due process rights. See also the eu research conducted in the area, for example European Union Fundamental Rights Agency, Child-Friendly Justice: Perspectives and Experiences of Children Involved in Judicial Proceedings as Victims, Witnesses or Parties in Nine eu Member States (European Union Fundamental Rights Agency, 2017). 197 See for example Edward Deci and Richard Ryan, “Autonomy and Need Satisfaction in Close Relationships: Relationships Motivation Theory” in Netta Weinstein, ed, Human Motivation and Interpersonal Relationships (Springer, 2014); Edward Deci and Richard Ryan, “The ‘What’ and ‘Why’ of Goal Pursuits: Human Needs and the Self-Determination of Behavio[u]r” 11 Psychological Inquiry 227 (2000); Edward Deci and Richard Ryan, “Human Autonomy: The Basis for True Self-Esteem” in Michael Kernis, ed, Efficacy, Agency, and Self-Esteem (Plenum, 1995).

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in negotiating it from those around them.198 If children are to have involvement in proceedings affecting them – involvement which is meaningful and not harmful – then there is no escaping the fact that most children will require adequate support. This will require time, information, adult guidance; factors which do not sit easily in most legal systems; focused as they are on cost-cutting and expediency. For children to be involved in proceedings affecting them there must be greater acknowledgement of the effort that is needed to facilitate that, and the term ‘autonomy support’ better encapsulates the concept.199 Another point on which Article 12 is not clear is where the opportunity to be heard should not be offered. There are many provisions in the crc, including the best interest principle, which are aimed at protecting children from harm. It is implicit in Article 12, then, that there will be circumstances in which it will not be appropriate to involve a child in proceedings, hypothetically even where that child is capable of forming views. One can anticipate the kind of proceedings where this is justifiable, where there is a genuinely significant risk to the safety or health of a child, for example.200 But a high standard is needed to ensure that the vagueness on this question does not result in arbitrary exclusion of children, and Article 12 provides no assistance on this point. It leaves a lot of scope for adults to exclude children on the basis of ‘protection’ with very little justification. If a principle was applied which required that children’s autonomy must be vindicated unless significant harm would likely arise, then decisions to refrain from offering children the opportunity to be involved in their own proceedings would have to be fully justified on that basis. Children would have to be offered the opportunity unless it was likely that they would suffer significant harm from that offer, or from involvement. 5.2.3

198 199 200 201

How Children are to be Heard: Children’s Choice? I sort of did say to her, “I wasn’t happy at all with the decision you made and everything that was said in that conversation that I thought was confidential.”201

198 See for example, Eva Pomerantz, Wendy Grolnick and Carrie Price, “The Role of Parents in how Children Approach Achievement: A Dynamic Process Perspective” in Andrew Elliot and Carol Dweck, eds, Handbook of Competence and Motivation (Guilford Press Publications, 2005), at 261. 199 Autonomy support is considered in detail in Chapter 7. 200 This is considered in Chapter 6, Section 4. 201 Eleven year old girl with experience of family law proceedings, quoted in Douglas et al., note 122, at 69. This girl was unhappy with the conduct of her court-appointed children’s guardian.

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The word “freely” implies that children should have the choice as to the means through which they are involved in proceedings. Significant emphasis is placed on this point in General Comment No. 12, in which it is stated that once a child has decided to exercise the right to be heard, she then has to decide “how to be heard”202 and must be provided with guidance as to the options.203 There are a wide variety of means through which children can be heard. One of these possibilities is explicit in the text of Article 12 – children may meet the decision-maker to give their views directly, or alternatively they may have a representative do this on their behalf. This emphasis on hearing children ‘freely’ – that is the way they wish – is positive, though in reality of course the determinative factor as to how children are heard is the nature of the legal system in which the case is being heard. It is a rare occurrence for judges to meet directly with children in many common law countries, for example, so this choice is frequently off the table.204 Children are often prevented from participating in proceedings in the way they wish for paternalistic reasons, for example where children are refused permission to instruct lawyers directly,205 prevented from giving direct evidence,206 and excluded from attending proceedings.207 Yet the crc provides very sparse guidance as to how to balance ‘protection versus participation’ in proceedings.208 Consequently, it seems, children’s preferences as to how they wish to contribute can be overridden with ease. The term “freely” does not emphasise

202 203 204 205 206 207 208

202 Committee on the Rights of the Child, General Comment No. 12, note 161, para. 35. 203 Ibid, para. 41. 204 See Chapter 4, Section 3.2. 205 See W. (A Child) [2016] ewca Civ 1051 and Mabon v Mabon and others [2005] ewca Civ 634 in which permission for children to instruct their representative directly was upheld on appeal, and Re N. (Contact: Minor Seeking Leave to Defend and Removal of Guardian) [2003] 1 flr 652 and Re H. (Residence Order: Child’s Application for Leave) (2000) 1 flr 780 in which it was not. 206 P.–S. (Children) [2013] ewca Civ 223. In Re E. [2016] ewca Civ 473 it was noted that there appears to be a presumption within the culture of family courts against children giving evidence. 207 In the Ohio case In Re a.g., Slip Opinion No. 2014-Ohio-2597 the court upheld a refusal of the 13 year old to attend proceedings concerning her. In England and Wales the case Re K. (A Child) [2011] ewhc 1082 overturned Re W. (Secure Accommodation Order: Attendance at Court) [1994] 2 flr 1092 which established a presumption against the attendance of children at proceedings concerning them. However there is still no presumption in favour. 208 See for example, Committee on the Rights of the Child, Third Draft of Draft General Comment on Article 12 (Committee on the Rights of the Child, 2007), para. 26. “There can be a tension between participation and protection which needs to be balanced.”

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clearly enough that due process rights necessitate a presumption that children enjoy the same rights as adults.209 Nor does it provide a principle according to which to rebut that presumption. A children’s autonomy principle would necessitate prioritisation of children’s own choices as to how they wish to participate by setting a high bar for refusal of children’s preferences. Children are regularly excluded from proceedings concerning their interests on the basis of very flimsy reasoning.210 By setting a standard of ‘significant harm’ children would be excluded only where this is genuinely necessary for their safety and well-being.211 5.3

The Notion of ‘Due Weight’ for Children’s Views: No Transparency, No Accountability Well, y-yess, but [children should] not tell the parents what to do … so the parents should um yeah, talk about it and then … they’ll probably tell the kids and then if they don’t want that to happen then they’ll figure something else out.212

It is well-known (and oft-cited213) that Article 12 does not explicitly require that the wishes of children are to be the determining factor in best interest (or any other) decisions. Nor is it specified that a child’s wishes are to be the most important factor. Just as Article 12 fails to prioritise children’s autonomy when the process of being heard is determined, the provision also refrains from prioritising autonomy when the substantive decision is being made. Children’s views are not, on the face of it at least, to be accorded any more importance than anything else whatsoever. One could argue, as a child did unsuccessfully in P.–S. (Children), that a child’s views should be the most important factor in a certain case, such as where the child is in adolescence.214 Yet, aside from the possibility of raising this argument (it is not precluded by Article 12) there is no requirement that children’s views are prioritised. As a consequence, practically­ 209 210 211 212 213 214

209 See further below Section 6. 210 See in particular P.–S. (Children) [2013] ewca Civ 223 considered in Chapter 4, Section 3.3.4 and Ohio case In Re a.g., Slip Opinion No. 2014-Ohio-2597 considered in Chapter 4, Section 3.3.2. 211 This is considered in detail in Chapter 6. This standard would of course require legal systems adequately resourced to support children. See Chapter 7, Section 5.1. 212 Child quoted in Campbell, note 164, at 188. 213 See above note 65. 214 See P.–S. (Children) [2013] ewca Civ 223 considered in Chapter 4, Section 3.3.4.

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any factor can be provided by judges and others when making decisions contrary to what children themselves want. This preoccupation with children not being allowed to make decisions is encouraged by Article 12. In the drafting process the right to be heard in proceedings (Article 12[2]) was ultimately lumped-in with a right to be heard generally (Article 12[1]).215 Insufficient attention is therefore accorded to the fact that best interest proceedings take children’s personal life choices from them. They are a starkly different context to political freedoms for example. Although the same “due weight” idea under Article 12 applies both to best interest proceedings and political freedoms, the contexts are very different. We obviously cannot start from the standpoint that a child’s political wish will be determinative. That would be ludicrous. But we could absolutely start with an assumption that a child’s decision in their private life should be respected. Take the case of 11 year old Clare, for example, considered in the introductory section of this book.216 It would be impossible to hold a presumption in favour of Clare enjoying her (hypothetical) wish to see a particular political party in power for example, or her wish that a greater amount of local authority funding should be allocated towards the construction of playgrounds. It would however be possible to assume that Clare’s wishes on contact arrangements – a matter in her personal life – will be upheld if such a matter comes to court. I argue later that such a presumption is also desirable.217 Article 12 does imply that children should have some level of influence. It is evident in the text of Article 12 that it is not sufficient that the views of children are simply heard in proceedings. They must also be given “due weight” by the decision-maker, a point emphasised during drafting218 and later by the 215 216 217 218

215 See above at Section 5.1. 216 Section 2.2. The courts decided that Clare’s contact visits with her father should continue against her wishes, and she was very upset. Clare’s case is taken from Kay Tisdall and Fiona Morrison, “Children’s Participation in Court Proceedings when Parents Divorce or Separate: Legal Constructions and Lived Experiences” 14 Law and Childhood Studies: Current Legal Issues 156 (2012), at 165–71. 217 See Chapters 3, 5 and 6. First, courts would not coerce adults in such a way without significant justification, and secondly it is obvious that vindicating someone’s wishes is generally in their best interests, see Chapter 3, Section 3. Indeed Kaltenborn’s research indicates that an outcome in line with a child’s wishes in family law is an outcome in line with their best interests. Karl-Franz Kaltenborn, “Children’s and Young People’s Experiences in Various Residential Arrangements: A Longitudinal Study to Evaluate Criteria for Custody and Residence Decision Making” 31 British Journal of Social Work 81 (2001). 218 Travaux Préparatoires of the Convention on the Rights of the Child, Considerations of 1981 Working Group, E/CN.4/L.1575, para. 20, para.75. Accessed in Detrick, Doek and Cantwell, note 154.

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Committee which asserts that, “simply listening to the child is insufficient; the views of the child have to be seriously considered when the child is capable of forming her or his own views.”219 Therefore the intention behind the text of Article 12 is somewhat noble in this regard – children’s views are not to be simply dismissed in any particular case; it is implied that there must always be some level of weight accorded. However, one has to search hard for this point in the text of Article 12 – the provision is most commonly referred to as “the right to be heard”, not the “the right to be heard and to have one’s views accorded due weight”, although this lengthy phrase is conscientiously used by a small number of commentators.220 The elusiveness of this part of Article 12 is perhaps what has contributed to the misinterpretation, downplaying and side-lining of the right to be heard. Judges often declare that a child’s views have “not being taken into account” when they appear to mean that the child’s views were not held to be determinative. They sometimes mention that they have given “no weight” to a child’s views,221 though the language of Article 12 – “due weight being given” – implies that at least some weight should be accorded to children’s views. The difficulties associated with the concept of “due weight” has led to much focus on hearing children, and little on the next step. It has also maintained a situation where there appears to be no framework at all according to which decision-makers can “weigh” children’s views. Consequently how children’s views are “weighed” in proceedings is not transparent, it often seems inconsistent, and there appears to be little accountability according to which decision-makers, usually with enormous discretion,222 can be held to account via appeals223 or other avenues. The Committee has added little to our understanding of how a weighing process should, or even could, work, by simply adding more vague terminology into the mix.224 It is somewhat unsurprising, considering weight is associated 219 220 221 222 223 224

219 Committee on the Rights of the Child, General Comment No. 12, note 161, para. 28. The Committee also stresses the obligation to provide children with feedback and information on the position of their views in the outcome (para. 45). 220 See for example Lundy, note 17 and Parkes, note 18. 221 See Re M. (Children) [2016] ewca Civ 1059, para. 23 and S. v S. (Child Abduction) (Child Objections) [1991] 2 flr 492, at 501. In Canada, the trial judge had “discount[ed] the child’s wishes” (para. 10) in Letourneau v Letourneau 2014 ABCA 156. See further Chapter 5, Section 1.3. 222 See in the context of England and Wales, in family law every case is decided on its own facts: Re H. (Shared Residence: Parental Responsibility) [1995] 2 flr 883. 223 The Committee state in General Comment No. 12 (note 161, paras 46–7) that there should be an appeals process, but children frequently do not have access to such mechanisms. See Chapter 4, Section 3.3.1. 224 See Chapter 5, Section 1.3.

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by courts and others with children’s ‘competence’, though we have little understanding of it.225 The obvious solution is that children’s preferences should be upheld in proceedings affecting their best interests, unless there is a good reason not to do so.226 The existence of a framework in which children’s autonomy is given high priority would ensure that decision-makers would have to demonstrate how they have considered children’s preferences, and necessitate adequate and explicit justification where a decision deviates from children’s wishes. 6

The Right to be Heard is a Right Particular to Children: Due Process and Fair Trial Rights I think it should be a fair trial and that the judge should look at everything rather than just one report which is what he did to us. If it’s a fair trial then yeah, but not if the judge is just going to, like, not take it very seriously which was what we thought happened.227

When we examine whether there is an adult’s ‘right to be heard’ in proceedings, Article 12 begins to look like a sticking plaster on a large wound. Adults do not need a right to be heard because they do not have their personal decisions taken from them ostensibly in their own best interests. What they do have are due process rights which give them status and respect in proceedings in which they are involved. The ‘right to be heard’ in respect of adults does not constitute a major area of study in its own right. The rights of adults which probably correspond most closely with the right of children to be heard in best interest proceedings are those referred to as ‘due process’ rights,228 which concern the observation of legal procedures in a particular context, particularly the courts. Although the term ‘due process’ is primarily an American one, similar claims regarding 225 226 227 228

225 Ibid. 226 The confines of this are considered in Chapter 6. 227 Sixteen year old girl with experience of family law proceedings, quoted in Douglas et al., note 122, at 90. 228 Other terms are also sometimes used. The term ‘fair trial rights’ is in use – see generally Nuala Mole and Catharina Harby, The Right to a Fair Trial: A Guide to the Implementation of Article 6 of the European Convention on Human Rights, Handbook No. 3 (Council of Europe, 2006). There is also a “the right to a fair hearing”, see for example, Manfred Nowak, u.n. Covenant on Civil and Political Rights: cppr Commentary (n.p. Engel, 1993), at 246.

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procedural­protection have a traditional basis in other jurisdictions, such as England229 through concepts such as ‘natural justice’.230 Also relevant are ‘fair trial’ rights, enshrined for example in a number of international human rights texts, such as the International Covenant on Civil and Political Rights (iccpr)231 and the European Convention on Human Rights (echr).232 Article 6 of the echr, for example, enshrines the right to a fair hearing in the determination of the civil rights and obligations of an individual, or of any criminal charge against the individual.233 There are obvious parallels between the concepts of due process and fair trial rights on the one hand, and crc Article 12 ‘right to be heard’ on the other.234 Yet crc Article 12 refrains from making reference to a whole host of crucial due process issues.235 Article 12 is silent on the right to initiate proceedings, to appeal decisions (particularly where children have not been party to the 229 230 231 232 233 234 235

229 Frederick Shauer, “English Natural Justice and American Due Process: An Analytical Comparison” 18 William and Mary Law Review 47 (1976). 230 Ibid, at 48. 231 International Covenant on Civil and Political Rights, ga res 2200A (xxi), 21 un gaor Supp (No 16) at 52, un Doc A/6316 (1966), 999 unts 171, adopted 16 December 1966, entered into force 23 March 1976. Article 14 of the iccpr enshrines fair trial rights. 232 European Convention for the Protection of Human Rights and Fundamental Freedoms, 213 unt 222, opened for signature 1 November 1955, entered into force 3 September 1953. African Charter on Human and Peoples’ Rights (oau Doc CAB/LEG/67/3 rev 5, 21 ilm 58 (1982), adopted 27 June, 1981, entered into force 21 October, 1986); American Convention on Human Rights (oas Treaty Series No 36, 1144 unts 123, adopted 22 November 1969, entered into force 18 July 1978). 233 Mole and Hardy, note 228, at 38, state that: ‘This expression (in Article 6) incorporates many aspects of the due process of the law, such as the right of access to court, a hearing in the presence of the accused, freedom from self-incrimination, equality of arms, the right to adversarial proceedings and a reasoned judgment’. It is also of note that the iccpr and the Charter of Fundamental Rights of the European Union 2006 (Article 47) enshrine fair trial rights. 234 Children being heard as a procedural right per se has been confirmed to some extent in England and Wales, although I question whether this judgment reflects the reality of practice in Chapter 4, Section 2.1. 235 The regional Ibero-American Convention on Youth Rights contains a ‘Right to Justice’ (Article 13) which references “the right to report, audience, defen[s]e, fair and decent treatment, free justice, equal rights before law and all the guarantees of the corresponding procedure” as well as “a legal procedure which takes into account the young condition, makes the exercise of this right real and includes all the guarantees of the corresponding procedure.”

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original proceedings) and to have party status.236 There is no specific reference in Article 12 to children receiving notice of hearings, no reference to a right to counsel or other representation237 (although the potential for such representation is of course raised), and no right to cross-examination of witnesses. Some of these issues have been considered in proceedings around the world, for example in Scottish case Dosoo, which concerned whether children’s testimony could remain private,238 and us case In Re a.g., where it was being decided whether a girl could attend her own child protection proceedings.239 In these cases Article 12 is occasionally relied upon to argue that, as children have a right to be heard, they also enjoy whatever due process right is being raised.240 Yet Article 12 does not explicitly enshrine the rights for children that are assumed to pertain to adults in equivalent proceedings, so this argument is very hard to make, and may not work.241 Without a clear principle to guide what a right to be heard might entail, as always, it is all too easy to use the ‘protection’ excuse to determine children’s due process rights in a very limited way. One striking problem is that best interest decisions are not like other proceedings, at the very least from the child’s perspective. As proceedings about children’s upbringing are supposed to be resolved according to what is best for the child, one would expect that children would be treated as the most important party in the process. Yet children are not even treated as equals. Children do not have the party status of their parents (or the party status of the state in child protection cases) in many instances. Even where they do – as occurs with child protection proceedings in England and Wales – in reality they are not facilitated to exercise that party status to the extent that an adult would, for example they may not have permission to directly instruct their own lawyers or to access all the information in the case.242 Clearly, clarity is required to highlight the fact that best interest proceedings are unique, and that children

236 237 238 239 240 241 242

236 See further consideration of these issues in Chapter 4, Section 3.3. 237 The Committee does appear to emphasise that children should have legal representation in best interest decisions in its General Comment on crc Article 3, note 178, para. 96. 238 Dosoo v Dosoo (1999) slt (Sheriff Court) 86. General Comment No. 12 also makes reference to some of these points, for example the possibility for children to appeal decisions (para. 45), but the reality is that children do not have such a right in many contexts. 239 Slip Opinion No. 2014-Ohio-2597. As noted above in Section 5.2.3, the court ruled that she could not attend proceedings. 240 See for example, P.-S. (Children) [2013] ewca Civ 223; Mabon v Mabon and others [2005] ewca Civ 634; and Dosoo v Dosoo (1999) slt (Sheriff Court) 86. 241 See for example, P.-S. (Children) [2013] ewca Civ 223. 242 See Chapter 4, Section  2.3.2. The right to access documents is emphasised in General Comment No. 12, note 161, for example para. 65.

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require and deserve equivalent due process rights to the adults involved. But Article 12 does not achieve this. Adversarial systems have fared particularly badly in this regard. Child protection proceedings have certainly accommodated children’s due process rights to a degree which family law cases have not243 (although there is still much room for improvement).244 Because of the costs of facilities such as legal representation, this and party status have been considered necessary for children only in the most difficult of cases.245 In any case, adversarial proceedings are unsuited to cases concerning children, worsening conflict and entrenching (already stubborn) positions.246 The doctrine of ‘equality of arms’247 means that often there is a focus on a fair trial for the mother and father as parties, but not for the child on whose interests the outcome ostensibly turns. These cases are, in many countries, overseen by judges often without any training for the specifics of children’s cases.248 This point comes with various problems – one of them is that children’s wishes are left to the mercy of the particular philosophy of the judge who happens to hear the case.249 One might expect that, in the European context, the echr may have benefitted children’s due process rights in best interest proceedings. It seems, 243 244 245 246 247 248 249

243 For example children sometimes have automatic party status in child protection proceedings but not in family law proceedings, for example in England and Wales. See further Chapter 4. 244 Leviner makes the point, for example, that children’s due process rights would be improved if there was a capability to appeal decisions not to interfere in the family, as well as to appeal interventions. Pernilla Leviner, “The Right to a Fair Trial from a Child’s Perspective: Reflections from a Comparative Analysis of Two Child Protection Systems” in Said Mahmoudi et al., eds, Child-Friendly Justice – A Quarter of a Century with the un Convention on the Rights of the Child (Martinus Nijhoff Publishers, 2015). 245 See further Chapter 4, Section 3.3. 246 See for example, Kelly, note 12, at 40. 247 This is referred to by Nowak as “the most important criterion of a fair trial” Nowak, at 228, at 247. The doctrine, put simply, is that “one side to litigation shall have no advantage over the other by way, for example of being able to provide the tribunal with evidence or comments not available to the other side.” Joseph Jacob, Civil Justice in the Age of Human Rights (Ashgate, 2007), at 105. The European Court of Human Rights has also affirmed this right, see for example De Haes and Gijsels v. Belgium, Appl. No. 19983/92, judgment of 24 February 1997, t.p. and k.m. v. the United Kingdom, Appl. No. 28945/95, judgment of 10 May 2001 and Van Orshoven v. Belgium, (1997) 26 ehrr 55. 248 See for example in the context of Sweden see Leviner, note 244; and in the context of Norway see comments of the Committee on the Rights of the Child, Concluding Observations: Norway (29 January 2010) CRC/C/NOR/CO/4, paras. 17 and 36. 249 See further Chapter 2, Section 3.2.

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however, that this has not been the case.250 Children are almost invisible in the text of the echr, and therefore it is perhaps unsurprising that where the matter of hearing children has arisen in echr case law, it has been almost exclusively from the perspective of parents. Although there has been emphasis on the special provision required for children to enjoy a fair trial where it comes to criminal law,251 children’s due process rights in other proceedings remain largely unexamined. Children have sometimes been involved as parties in parents’ efforts to have their due process rights acknowledged in child protection proceedings, but children’s status in these cases has undoubtedly been incidental to their parent’s cases.252 In fact, as I have outlined elsewhere,253 some of the echr case law has actually inclined against children’s autonomy in these circumstances in favour of parents’ ‘rights’. The court found Finland in breach of Article 8, for example, where children’s wishes against seeing their father were held to be determinative.254 There is a clear failure at national level, and at the level of the echr, to see children’s position in their own best interest proceedings as a due process issue. This is extraordinary, as these proceedings concern children’s interests more than those of anyone else, and outcomes are supposed to be determined in accordance with the best interest of the child. This failure almost certainly arises from a lack of conceptual clarity, both about children’s status as rights holders and about what best interest proceedings are – decisions about children because they are children; decisions which are very paternalistic and therefore require that children’s autonomy be upheld to the highest degree possible. Emphasising that this is the nature of best interest proceedings will likely help to progress children’s due process rights in a way that the right to be heard has not.

250 251 252 253 254

250 Aoife Daly, “The Right of Children to be Heard in Civil Proceedings and the Emerging Law of the European Court of Human Rights” 15 International Journal of Human Rights 441 (2011). 251 T. v United Kingdom (1999) 30 ehrr 121. 252 Kilkelly notes that such cases are rarely taken by children themselves. Ursula Kilkelly, “The crc in Litigation Under the echr” in Ton Liefaard and Jaap Doek, eds, Litigating the Rights of the Child (Springer, 2015), at 199. See Z. and Others v the United Kingdom, Appl. No. 29392/95, judgment of 10 May 2001, which is a rare case concerning the state obligation to protect children from abuse and neglect. The case was taken by adults severely neglected as children. 253 Daly, note 250. 254 C. v Finland, Appl. No. 18249/02, judgment of 9 May 2006. Kilkelly, note 252, does make the point that the Court has increasingly employed the best interest principle in such cases. I point out, however, that the emphasis on parent’s rights greatly harms the conceptualisation of hearing children as their own right. Daly, note 250.

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Comparison with Legal Rights for Adults with Cognitive Impairment [Professionals] should learn to communicate with children a bit better and talk to them as if they are equal because that’s what we want to try and be, and try and get our point across as though we are equal rather than talking down to us and saying we don’t really know what we want when we do.255

An area which demonstrates well the weaknesses of crc Article 12 is the contrasting autonomy successes achieved for adults for whom mental capacity256 is an issue. There has been a recent paradigm shift in favour of equality for people with disabilities,257 including adults with ‘cognitive impairment’258 because of brain injury, mental illness or learning disability. Although the position of adults with cognitive impairment and that of children are not usually directly comparable, there is considerable overlap when it comes to legal capacity. The same reasons are used for denying autonomy to both groups.259 Similar to certain cases concerning children, the courts seek to determine the ‘competence’ or ‘capacity’ of adults with cognitive impairment.260 In some 255 256 257 258 259 260

255 Sixteen year old girl with experience of family law proceedings, quoted in Douglas et al., note 122, at 90. 256 ‘Mental capacity’ can be taken to refer to the standard by which one has legal capacity or not, there is a threshold one must cross. See further Allen Buchanan and Dan Brock, Deciding for Others: The Ethics of Surrogate Decision Making (Cambridge University Press, 1990). The matter of capacity is considered in detail in Chapter 3, Section 5. 257 Jill Stavert, “The Exercise of Legal Capacity, Supported Decision-Making and Scotland’s Mental Health and Incapacity Legislation: Working with crpd Challenges” 4 Laws 296 (2015), at 3. 258 This is the term commonly used in England and Wales. The terms ‘intellectual disability’ or ‘capacity challenges’ are also used. None seem perfect. In any case, for detailed consideration of terminology, see Aminta Dhanda, “Legal Capacity in the Disability Rights Convention: Stranglehold of the Past or Lodestar for the Future?” 34 Syracuse Journal of International Law and Commerce 429 (2006). 259 The struggle to assert autonomy for adults with cognitive impairment is considered in Mary Donnelly, “Legislating for Capacity: Developing a Rights-Based Framework” 30 Dublin University Law Journal 315 (2009). 260 Similar to the many varying ‘abilities’ of children, issues concerning mental capacity in adults involves people with very mild learning difficulties, right up to those with more profound disabilities, and to those who are completely incapacitated (such as those in a coma). Law Reform Commission, Vulnerable Adults and the Law (Law Reform Commission, 2006), at 8.

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cases, the capacity of children has been measured according to mental capacity law for adults.261 To compare children and adults without mental capacity may be unacceptable to some – childhood is not technically a disability, and an adult without capacity should not be ‘treated like a child’ (whatever that means).262 Yet the overlap is inescapable – in the England and Wales case of A. Local Authority v A. and B.,263 for example, the cases of a child and an adult, both with severe behavioural challenges, were considered together – both were being locked in their respective bedrooms at night, ostensibly for safety reasons.264 Of primary interest for the purpose of the enquiry in this book is the fact that courts are sometimes called upon to make decisions in the ‘best interests’ of adults lacking capacity (and sometimes vulnerable adults who have capacity),265 essentially in many cases engaging in a substitute decisions266 on behalf of individuals, similar to what occurs in best interest cases concerning children. Yet there has been an enormous shift in favour of taking substitute decisions more seriously for adults,267 a focus on upholding the wishes of the individual, 261 262 263 264 265 266 267

261 See for example, Moreton’s consideration of this occurrence in An nhs Trust v A.B.C. and A Local Authority [2014] ewhc 1445. Kirsty Moreton, “Gillick Reinstated: Judging MidChildhood Competence in Healthcare Law: An nhs Trust v abc” 23 Medical Law Review 303 (2014), section entitled “Critical Analysis”. 262 See Steinberg, note 91, at 22. 263 [2010] ewhc 978. 264 It is of note that both had undoubtedly loving families. See further Jonathan Herring and Michael Dunn, “Safeguarding Children and Adults: Much of a Muchness? A Local Authority v A and B [2010] ewhc 978 (Fam)” 23 Child and Family Law Quarterly 528 (2011), at 530. 265 See Herring and Dunn, ibid, and Michael Dunn, Isabel Clare and Anthony Holland, “To Empower or to Protect? Constructing the ‘Vulnerable Adult’ in English Law and Public Policy” 28 Legal Studies 234 (2008). Section 59 of the Safeguarding Vulnerable Groups Act 2006 [England and Wales] states that a person is a vulnerable adult in certain circumstances, for example if they are in residential accommodation (that is, an institution), or if they require assistance in the conduct of their affairs. 266 See for example Mary Donnelly, “Best Interests in the Mental Capacity Act: Time to say Goodbye?” 24 Medical Law Review 318 (2016) and Donnelly, note 259, at 420. 267 Penelope Weller, “Legal Capacity and Access to Justice: The Right to Participation in the crpd” 5 Laws 1 (2016), at 3; and Barbara Carter, Supported Decision-Making Background and Discussion Paper (Office of the Public Advocate, Victoria, 2009). Genevra Richardson, “Mental Disabilities and the Law from Substitute to Supported Decision-Making” 65 Current Legal Problems 333 (2012); and Donnelly, note 259; Eileen Carey and Colin Griffiths, “The Impact of Irish Policy and Legislation on How Adults with Learning Disabilities Make Choices” 44 British Journal of Learning Disabilities 111 (2014).

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even a movement away from substitute decision-making in favour of assisted decision-making instead.268 The drafting of the un Convention on the Rights of Persons with Disabilities provides a basis therefore for comparisons between due process rights of children and adults with cognitive impairment.269 The comparison is stark indeed. Unlike the crc, the Convention on the Rights of Persons with Disabilities contains a number of provisions relating to due process rights. Amongst many provisions in that instrument relating to due process and autonomy rights is an explicit right to facilitation of the “effective role” of people with disabilities in all legal proceedings affecting them270 and the right to equal recognition before the law. The latter right places on states an obligation to “take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity.”271 Such measures must involve safeguards to ensure vindication of “the rights, will and preferences of the person”272 In other words, instead of making decisions about or on behalf of individuals, the ultimate goal is upholding their wishes;273 and efforts must be made to assist and support them in making their own decisions. The extensive provision for these autonomy rights of people with disabilities is in clear contrast to the almost complete lack of such rights in the crc.274 There is no explicit reference in the crc for example to assistance with

268 269 270 271 272 273 274

268 Many argue that there is still some distance to go however. See further Donnelly, note 266; Alexia Torke, Caleb Alexander and John Lantos, “Substituted Judgment: The Limitations of Autonomy in Surrogate Decision Making” 23 Journal of General Internal Medicine 1514 (2008); and W. Suto, Isabel Clare and Anthony Holland, “Substitute Decision-Making in England and Wales: A Study of the Court of Protection” 24 Journal of Social Welfare and Family Law 37 (2002). 269 un Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities, g.a. Res. 61/106, Annex i, un gaor, 61st Sess, Supp No 49, at 65, un Doc A/61/49, adopted 13 December 2006, entered into force 3 May 2008. 270 This involves a right to “provision of procedural and age-appropriate accommodations, in order to facilitate their effective role as direct and indirect participants, including as witnesses, in all legal proceedings, including at investigative and other preliminary stages.” Article 13(1). 271 Article 12(3). 272 Article 12(4). Efforts must be made to ensure these measures are free of “conflict of interest and undue influence.” 273 Ibid. Where another individual is exercising legal rights on behalf of a person with disability, this must be monitored in some way to ensure that abuse does not occur. The relevant support measures must also be “proportional and tailored to the person’s circumstances.” Article 13(1). 274 There are references to due process in the criminal law context in the crc (Article 40) and the right to freedom from unlawful deprivation of liberty in Article 37(b).

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decision-making, equality before the law, upholding preferences, or access to justice. The influence of these provisions of the Convention on the Rights of Persons with Disabilities is evident in many national systems. In England and Wales for example the Mental Capacity Act (mca) 2005 requires an assumption that mental capacity exists, that efforts are made to support and help people with disabilities to make decisions for themselves, and that no unnecessary limits are placed on vindication of the individual’s own preferences:275 “In this way, the mca seeks to empower people to make decisions for themselves, protect the vulnerable from the excesses of paternalism, and engineer a cultural shift in attitudes to mental impairment and incapacity.”276 It has been pointedout that in practice courts in England and Wales give priority to the wishes of the adult without capacity in the best interests assessment, and significant justification is required before they are departed from.277 There are a number of reasons for the different approach to autonomy in the Convention on the Rights of Persons with Disabilities as compared with the crc. First there appears to be an assumption in the Convention on the Rights of Persons with Disabilities that those who are subject to the instrument’s protection are adults.278 Secondly there is a strong movement in recent history in favour of equality for people with disabilities.279 Finally, people with disabilities themselves were involved in the drafting of that document, which ensured their representation in that instrument as fully-rounded human beings.280 Children were not represented in the drafting of the crc and it is obvious that this is the case. In the crc, children are presented as relatively needy, helpless individuals,281 and the most that they can hope for in best interest proceedings is a vague right to be heard. 275 276 277 278 279 280 281

275 British Psychological Society, Best Interests Guidance on Determining the Best Interests of Adults who Lack the Capacity to make a Decision (or Decisions) for Themselves [England and Wales] (Department of Health, 2007), at 4. 276 Amel Alghrani, Paula Case and John Fanning, “Editorial: The Mental Capacity Act 2005: Ten Years On” 24 Medical Law Review 311 (2016). 277 Alex Ruck Keene and Cressida Auckland, “More Presumptions Please?” 3 Elder Law Journal 293 (2015). 278 There are a handful of child-specific references in the Convention on the Rights of Persons with Disabilities, for example Article 7(3) enshrines the right to be heard of children with disabilities. 279 See Weller, note 267, at 3: “Disability theory responds to the documentation of the mechanisms and effects of discrimination, marginalisation, inequality and exclusion.” 280 See Weller, ibid. 281 See for example Tobin, note 65, at 395; and Cordero Arce, note 15.

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It seems that children have merely been accorded ‘protection’ by the crc in the areas in which people with disabilities have been accorded extensive autonomy rights by the Convention on the Rights of Persons with Disabilities. This exposes an equality deficit in the crc. It is clear that whilst the Convention on the Rights of Persons with Disabilities had as its main aim the positioning of people with disabilities as equals, the same cannot be said of the crc. crc Article 2 has still had almost no analysis from the perspective of discrimination against children on the basis of childhood.282 The overlap in the issues faced by children in best interest proceedings, and those faced by adults with cognitive impairment in equivalent proceedings, is undeniable. An equally full explication of the obligations on states to facilitate children’s due process and support rights in best interest proceedings is equally necessary. 8

Concluding Thoughts on the Validity of the ‘Right to be Heard’ in Proceedings

8.1 The Argument for a Children’s Autonomy Principle In this chapter, it has been argued that the ‘the right to be heard’ has not served to mitigate the denial of decision-making to children in best interest proceedings. In spite of some good intentions by crc drafters and in spite of some noble efforts by the Committee on the Rights of the Child, Article 12 has not served to reconceptualise the position of children in proceedings affecting them. It may even have served to entrench children’s disadvantage. Article 12 distracts from the fact that best interest proceedings are unique in that they are decisions about children’s personal lives – decisions which courts would never take on behalf of adults unless they were deemed to lack mental capacity, and even in this instance states have obligations to support the adult’s own decision-making abilities. Because of the nature of best interest proceedings, children’s wishes should be of the utmost importance. Yet the vague language of the right to be heard (highlighted in this chapter) facilitates the exclusion of children from proceedings with little basis; and facilitates easy overriding of their wishes (see in particular Chapters 4 and 5). CRC Article 12 lacks any of the references to the support due to children involved in best interest proceedings. Article 12, albeit weakly worded, may initially have had some potential to transform proceedings­for children, if it had been interpreted generously at national level.­Yet as the coming chapters demonstrate, the weak text has instead led to interpretations of vague provisions which favour the power-holders – adults.

282

282 See Daly, note 28.

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It has been proposed that a focus on autonomy would better assist in resolving the challenges for children’s involvement in best interest proceedings. The most basic point concerning the children’s autonomy principle is that in legal decisions in which the best interest of the child is the primary consideration, children should get to choose – if they wish – how they are involved (process autonomy) and the outcome (outcome autonomy) unless it is likely that significant harm will arise from their wishes.283 How this principle should be applied in practice will be elaborated in detail in Chapter 6. 8.2 An Ideal Article 12(2) There are many other important aspects of children’s autonomy rights in proceedings, beyond upholding children’s wishes as to process and outcome. Crucial issues are left unexplained in Article 12 (and the crc generally), such as those concerning access to justice, party status, even the difference between proceedings where the best interest principle is a or the primary factor (a point analysed in detail in Chapter 2). Therefore, a redrafted, ‘ideal’ crc Article 12(2) will be suggested here, within which the children’s autonomy principle can sit. This way, the simple principle – essentially that children’s autonomy should be upheld to the extent possible – can be expanded out into a more thorough approach to children’s proceedings. Of course the crc was years in the making284 and it is unlikely that agreement could easily be reached upon a more prominent position for autonomy in that instrument. Yet there are now three Optional Protocols to the crc and there is nothing to prevent the introduction of a fourth in which a higher standard of autonomy in proceedings could be enshrined. There is a sense amongst many that the crc should be seen more as a “starting point”285 and a “minimum standard”286 than an end in itself; that we need to start to demand more for children’s rights. The area of autonomy in best interest proceedings is one obvious place to start. On the basis of what is considered above, it is proposed that a redrafted provision to replace Article 12(2) should read: 283 284 285 286

283 Another crucial point is that children should receive ‘autonomy support’ in the context of best interest proceedings, taken here to mean non-controlling, impartial information and support to form and/or express views and decisions about a best interest matter. See Chapter 7. 284 See further Geraldine Van Bueren, The International Law on the Rights of the Child (Martinus Nijhoff, 1995). 285 Lars-Göran Sund and Marie Vackermo, “The Interest Theory, ‘Children’s Rights and Social Authorities’” 23 International Journal of Children’s Rights 752 (2015), at 753. 286 Geraldine Van Bueren, Child Rights in Europe (Council of Europe Publishing, 2007), at 197.

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12(2) Children’s Autonomy in Proceedings a.

b.

c.

d.

287 288 289

Equality Children are equal before the law, and states must ensure children’s access to justice. All children must be recognised as individual rights-holders, with party status and representation as appropriate,287 at all stages of proceedings concerning their best interests. Children must be able to appeal any decision made about their best interests. Children’s autonomy must be vindicated in both the process and the outcome of such proceedings to the greatest extent possible. Children’s Autonomy Principle In legal decisions in which the best interest of the child is the primary consideration, children should get to choose – if they wish – how they are involved (process autonomy) and the outcome (outcome autonomy) unless it is likely that significant harm will arise from their wishes. Autonomy Support Proceedings and processes must be conducted in a child-friendly way. Children must be encouraged to be involved, to meet the decision-maker, and to attend proceedings if they wish, and parents (or guardians) should be encouraged and supported to listen to their children. Children must receive non-controlling, impartial information and support to form and/or express views and decisions about a best interest matter from professionals trained in children’s rights, autonomy and development.288 Non-verbal children should have social reports conducted on their situation. Type of Proceeding In proceedings where the best interest of the child is a primary consideration, children should get to choose – if they wish – how they are involved (process autonomy). If a child’s interests are sufficiently harmed by a particular outcome, then that option cannot be chosen. The child’s wishes should determine what outcome is considered to be in the best interest of the child unless it is likely that significant harm will arise from their wishes.289

287 The term “as appropriate” is used here in order to accept that in some legal systems, such as non-adversarial systems, party status and legal representation may not suit the context in which children are heard. See further Chapter 4, Section 3.1.4. “As appropriate” should not be understood as a willingness to limit the right of children to party status and legal representation in common law states, with adversarial systems, in which this is the only way in which many children can meaningfully be involved. 288 See Chapter 7 in which the matter of autonomy support is considered in detail. 289 See Chapter 2, Section 5 in which I consider where children’s autonomy may sit in immigration and criminal law proceedings. The position of children’s autonomy will inevitably

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The applicability of this text – this ideal Article 12(2) – is given further consideration throughout Chapters 4 to 7 in which practical examples of implementation of the ‘right to be heard’ are considered; and in which the potential for a children’s autonomy principle is also explored. The textual analysis conducted throughout this chapter sets the basis for the rest of the book. The following chapters provide further consideration of the theory of the best interest principle and what it means for children’s wishes; an examination of the nature of autonomy and how it applies to children; analysis of state practice concerning the ‘right to be heard’ in best interest proceedings; detailed consideration of what ‘significant harm’ should mean for children’s choices; and consideration of structural changes necessary to achieve real progress for children’s wishes in best interest proceedings. be different, as these are not substitute decisions (see above Section 2.2) because the best interest of the child may not necessarily determine the outcome; it is instead a – rather than the – primary consideration. In such cases, it may not be possible to have a presumption in favour of an outcome in line with a child’s wishes. When courts are determining the best interest of the child in such cases however (which is distinct from the question of where it sits in the judgment) the children’s autonomy principle can be applied in the same way. See also note 40 above.

chapter 2

The Children’s Autonomy Principle and the Best Interest of the Child I really do know what’s best for me, whatever the doctors may think. If I was a few years older, no one would be questioning me at all …1

∵ Introduction The best interest principle has arisen as the primary standard for determining children’s legal rights and interests because children are assumed to lack capacity and therefore legal standing. This is positive in many ways, not least because it recognises children’s relative vulnerability, and compels a focus on the position of the child herself. Yet it poses many questions; most importantly, where should children’s wishes feature in the determination of what is ‘best’? In this chapter, the history and nature of the best interest principle is examined in order to analyse its use in proceedings concerning children, and its relevance to the treatment of children’s autonomy – the liberal ideal that we should all have personal freedom in our lives to the extent possible. This chapter considers the theory of the best interest principle rather than practical instances where children’s wishes apparently clash with best interests.2

1 Hannah Jones refused a heart transplant at age 13, because she was tired of unrelenting treatment for her health problems and preferred to be with her family and to die with dignity. She changed her mind at age 14 and survived to adulthood. Quoted in Patrick Barkham, “Hannah’s Choice” The Guardian (12 Nov. 2008). Available at https://www.theguardian.com/ society/2008/nov/12/health-child-protection (last accessed 28 Nov. 2016). See also bbc News, “Transplant-Refusal Girl Hannah Jones Backs Donors” bbc News (20 Aug. 2013). Available at http://www.bbc.co.uk/news/uk-england-hereford-worcester-23770583 (last accessed 28 Nov. 2016). 2 In Chapter 5 cases in which adults’ conceptions of ‘best interests’ clash with children’s wishes are considered.

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The historical background which has led to modern conceptions of c­ hildren’s rights and interests is first examined to determine the socio-legal ­basis for approaches to children’s autonomy. There has been much progress for the status of children, primarily in the form of the welfare ­approach or the best interest principle – the idea that the best interest of the child should be considered in all matters affecting the child. The positive side to this is that the best interest principle requires a focus on the position of the child rather than on that of others. Yet the downside, particularly in best interest proceedings, is that the principle essentially denies ­children any form of claim on their own autonomy, because the discretion ­accorded to the judge to override a child’s wishes is generally a­bsolute. Consideration is given in this chapter to the application of the best i­nterest principle and its vague and subjective ­nature. Children’s ‘right to be heard’ is supposed to mitigate the potential for undue adult p ­ aternalism in best interest proceedings, but the right has not been substantial enough to ­displace the overwhelming ‘welfare’ approach which adults take to children. It is ­argued that, whilst we should retain the best interest ­principle, the ­focus of ­determining what is in a child’s best interest should shift to ensure ­greater priority for autonomy. If children’s wishes really must be overridden, this should be taken very seriously indeed. As the best interest principle is currently applied, a child’s wish is just one of many factors and this is unjustifiable. This chapter also provides further elaboration on the point made in Chapter 1 that best interest decisions are substitute decisions, in order to highlight that largely there are two kinds of proceedings in which the best interest of the child is considered. The first type is the best interest decision. The principle of the best interest of the child is the primary consideration – it determines the case (for example in contact cases). In the second type of case, the best i­nterest of the child is a primary consideration – it is one, albeit important, factor amongst others (for example in criminal and ­immigration law p ­ roceedings). To properly apply autonomy rights to each type of case, we need to better ­acknowledge that the former types of cases are substitute decisions. They are taken because children are ­children – adults would decide such matters for themselves. Autonomy should t­ herefore hold a position of priority in these cases, and children’s wishes should be upheld unless there is a likelihood of ­significant harm. It is also briefly ­argued that there is a role for the autonomy p ­ rinciple to play in the l­atter type of case, even where the best interest of the child is not the primary consideration.

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The ‘Children’s Rights’ Age: The Legal Journey and the Best Interest Principle When my parents split up … suddenly me and my sister were put into a routine of when we would see who and for how long … Our father treated us more like possessions than people.3

1.1 Children and the Law up to the Convention on the Rights of the Child Children have made an impressive legal journey in liberal democracies in the past 100 years or so. The perception of children as a distinct group of rightsbearers is relatively new and Article 12 of the Convention on the Rights of the Child (crc) reflects important cultural and legal developments in relation to children.4 Parental authority is seen as derivative of the biological realities of human nature.5 Assumptions about parental authority have been extraordinary until recently, with legal systems failing to recognise children as separate legal persons;6 and parents free to impose their will on children, no matter how cruel the demand or punishment.7 Examining this history is important for the purpose of highlighting that the present focus on the best interest of the child as the determining factor in proceedings is positive in many ways. It is a far cry, for example, from a time when children were seen essentially as the property of the father.8 As Blackstone, a jurist in 1700s England pointed out, this paternal primacy lasted until adulthood, when the “empire of the father, or other guardian, gives place to the empire of reason.”9 Mothers on the other hand were “entitled to no 3 Fifteen year old girl speaking about child inclusion in family court proceedings, quoted in Jennifer McIntosh, “Four Young People Speak about Children’s Involvement in Family Court Matters” 15 Journal of Family Studies 98 (2009), at 99. 4 Nicola Ross, “Agency, Article 12 and Models for Legal Representation of Children in Australia” Paper presented at 4th World Congress on Family Law and Children’s Rights (Cape Town, 20–23 Mar. 2005). 5 John Eekelaar and Petar Sarcevic, Parenthood in Modern Society: Legal and Social Issues for the Twenty-First Century (Martinus Nijhoff, 1993), at 432. 6 Philippe Aries, Centuries of Childhood: A Social History of Family Life (Vintage Books, 1962). 7 Raymond Arthur, “Medical Treatment: The Welfare of the Child v The Wishes of the Parents” 5 Irish Journal of Family Law 20 (2002), at 1. 8 See Ross, note 4, at 4; Andrew Bainham and Stephen Gilmore, Children: The Modern Law (4th edn, Jordan Publishing, 2013), at 14. 9 William Blackstone, Commentaries on the Laws of England (4th edn, 1770), Book 1, Chapter 15, Section 2. Other jurisdictions maintained similar standards. For the us context, see ­overview

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power, but only to reverence and respect.”10 The child was, therefore, subsumed into legal understandings of marriage, family and patriarchy,11 with little individuality. The extent of this was to be seen in the fact that in the 1800s, some jurisdictions had legislation which pertained to the protection of animals from their guardians but none to protect children.12 The family as an institution experienced significant changes in liberal ­democracies, however, most notably because women became recognised as “separate juristic persons and no longer part of the chattels of the man.”13 In England in the 1800s, for example, courts were for the first time given some discretion to override a father’s rights.14 Moreover, traditional norms further dissolved with the advent of divorce, and the family came to be seen more in terms of a unit consisting of individuals. Through this process, the child became visible as one of these individuals, with rights and interests to be protected.15 In society more broadly, industrialisation meant a decreased need for child labour, and educating children became valued.16 The prohibition of children’s full time work, the introduction of compulsory schooling and the protective

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provided by Mary Ann Mason, “The Roller Coaster of Child Custody Law over the Last Half Century” 24 Journal of the American Academy of Matrimonial Lawyers 452 (2012). For the Spanish context, see overview provided by Teresa Piconto Novales, “The Equality Rights of Parents and the Protection of the Best Interests of the Child after Partnership Breakdown in Spain” 26 International Journal of Law, Policy and the Family 378 (2012). Amazingly this principle essentially remained in place until 1973, at which point the Guardianship Act 1972, Section 1.1, which ensured the same rights for mothers and fathers, was enacted. See Bainham and Gilmore, note 8, at 16. Ross, note 4, at 5. See Mary Renck Jalongo, “The Story of Mary Ellen Wilson: Tracing the Origins of Child Protection in America” 34 Early Childhood Education Journal 1 (2006). In 1874, the case of Mary Ellen, a severely abused child in New York was taken, in the absence of child protection legislation, by a church worker and the founder of the American Society for the Prevention of Cruelty to Animals. Geraldine Van Bueren, The International Law on the Rights of the Child (Martinus Nijhoff, 1995), at xxi. See also James Munby, “Families Old and New: The Family and Article 8” 17 Child and Family Law Quarterly 487 (2005). Under the Custody of Infants Act 1839 mothers were given some rights, and under the Matrimonial Causes Act 1857 courts were given discretion to override fathers’ powers. See Bainham and Gilmore, note 8, at 17. Annette Kronborg and Idamarie Leth Svendsen, “Children’s Right to be Heard: The Interplay between Human Rights and National Law” Paper presented at 11th World Conference of the International Society of Family Law (Copenhagen and Oslo, 2–7 Aug. 2002), at 1. Van Bueren, note 13, at xxi.

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roles of adult parents and teachers contributed to the infantalisation of once economically productive actors. The advent of the discipline of developmental psychology provided a framework of science and an assuredness that “we were becoming increasingly sure of what children needed, precisely because they were children.”17 Children came to be severely segregated from the adult world, seen as distinctly ‘other’. The notion that children’s lesser capacities required adults to determine their ‘best interests’ prevailed. These dramatic changes in societies and families have transformed the legal relationship between states, parents and children.18 But the change has primarily been a recognition that parental control is only acceptable where it is in the best interests of the child (although there is a strong legal presumption that it is). Few have challenged the legal incapacity of children. us ‘child liberationist’ theorists did so in the 1960s and 1970s, in parallel with challenges to discrimination against other repressed groups such as ethnic minorities. Richard Farson wrote that treating children differently from adults was a classic form of discrimination which denied them rights pertaining to them by virtue of their humanity.19 John Holt went so far as to argue for the liberation of children from almost all disabilities imposed on them by law.20 This has proven a bridge too far for most contemporary children’s rights advocates, and children have never been fully ‘liberated’ to any extent resembling that advocated by Holt and Farson. Yet there have been some legal developments in favour of children’s autonomy rights. In England and Wales it was established in Gillick21 that, in some scenarios at least (primarily medical), children may exercise rights separately from their parents. In the us Supreme Court, children’s constitutional rights have been recognised in a limited number of areas primarily involving schools, reproductive rights, and criminal justice.22

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Ibid. Kronborg and Leth Svendsen, note 15, at 1; Lars-Göran Sund, “The Rights of the Child as Legally Protected Interests” 14 International Journal of Children’s Rights 327 (2006). Richard Farson, Birthrights: A Bill of Rights for Children (Macmillan, 1974). John Holt, Escape from Childhood (e.p. Dutton, 1974). Holt stated “I propose … that the rights, privileges, duties of adult citizens be made available to any young person, of whatever age, who wants to make use of them” (at 1). Gillick v West Norfolk and Wisbech Area Health Authority [1986] ac 112. See further Chapter 3, Section 6.3.1. Anne Dailey, “Children’s Constitutional Rights” 95 Minnesota Law Review 2099 (2010– 2011), at 2123. In Re Gault 387 us 1 S Ct (1967) is heralded as a turning point for example. In this case it was determined by the us Supreme Court that children should have the same due process rights as adults when accused of a crime.

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Children had by the 1980s caught-up, then, to some extent with other disadvantaged groups in liberal democracies; not holding rights equal to those of adults as had been espoused by child liberationists, but nonetheless recognised as somewhat separate individuals, with certain rights claims, including a ‘right’ to have their best interests considered in proceedings affecting them. Children had moved – legally and socially – from possessions to people. 1.2

Modern Conceptions of Childhood: The Convention on the Rights of the Child and Beyond Parents, listen to your kids. Just make sure that you’re listening to them and not having any preconceptions about what you think they want and make sure you listen to them and that you tell them what’s going on.23

Recent decades have brought further social changes beyond a mere ‘best interest’ approach, involving challenges to the status quo and shifts in thinking about children – particularly about children’s control over their own lives. Ethnographic researchers argued that children’s views and perceptions were valid and important, and the tendency to rely on interpretations by adults of the experiences of children was questioned.24 The value of childhood as an experience in its own right began to be acknowledged, and as Qvortrup describes, children began to be seen “as human beings rather than as human becomings.”25 Prout and James developed the “new sociology of childhood”26 arguing that childhood is largely socially constructed, with children’s roles varying across historical periods and cultures. The notion of the ‘agency’ of children – that is, their ability to affect changes within the contexts in which

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Sixteen year old girl, quoted in Anne Smith, Nicola Taylor and Pauline Tapp, “Rethinking Assumptions about Children’s Competence to Participate in Family Decision-Making after Parental Separation” 10 Childhood 201 (2003), at 207. Charlotte Hardman, “Can there be an Anthropology of Children?” 4 Journal of the Anthropology Society of Oxford 85 (1973). Jens Qvortrup, “An Introduction” in Jens Qvortrup et al., eds, Childhood Matters: Social Theory, Practice and Politics (Avebury Press, 1994), at 4. Alan Prout and Allison James, “A New Paradigm for the Sociology of Childhood? Provenance, Promise and Problems” in Allison James and Alan Prout, eds, Constructing and Reconstructing Childhood: Contemporary Issues in the Sociological Study of Childhood (2nd edn, Falmer Press, 1997).

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they live, as opposed to simply being passively affected by their environments – became increasingly emphasised.27 At least to some extent this conceptualisation of children as competent actors has extended beyond academia to public consciousness – to schools, preschools and families.28 This critical approach to childhood developed in the context of what Prout identifies as a “weakening of the boundaries between childhood and adulthood”29 at a time of uncertainty – roughly 1980–2000 – characterised by less secure work opportunities, changing family forms, the weakening of the nation state, disillusionment with knowledge and expertise and a general sense of risk and insecurity.30 Lee also links the blurring of the adult/child dichotomy to the post-industrial economic climate: It seems that the figure of the standard adult against which we still make [judgments] about children, the figure that still serves as the basis for adult authority over children, is a ‘convenient’ fiction that belongs to a Fordist past rather than a flexible present.31 In the midst of this time of flux, the crc was drafted, came into effect, and set the dominant narrative on norms for children, at least at international level. This international human rights treaty reflected in many ways the uncertainties of the time – the equal component of civil and political rights on the one hand and economic, social and cultural rights on the other reflected Cold War politics.32 The reference in crc Article 18 to recognition that “both parents have common responsibilities for the upbringing and development of the child” reflected the normalisation of family breakdown and perhaps also the emerging narrative of the ‘best interest of the child’ as ­necessitating

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Allison James and Alan Prout, “Strategies and Structures: Towards a New Perspective on Children’s Experiences of Family Life”, in Julia Brannen and Margaret O’Brien, eds, Children in Families: Research and Policy (RoutledgeFalmer, 1996). Tobias Samuelsson et al., “The Active, Competent Child, Capable of Autonomous Action: An Inherent Quality or the Outcome of a Research Process?” 5 AnthropoChildren 1 (2015), at 2–3. Alan Prout, “Taking a Step Away from Modernity: Reconsidering the New Sociology of Childhood” 1 Global Studies of Childhood 4 (2011), at 5. Ibid. Nick Lee, Childhood and Society: Growing Up in an Age of Uncertainty (Open University Press, 2001), at 14. Van Bueren, note 13.

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care by both mother and father. It also reflected, through crc Article 12, a new attitude to children as individuals who deserve a right to be heard in decisionmaking. The overriding conceptualisation of children in the crc, however is as persons requiring protection33 and in need of adults to determine their best interests. crc Article 12 has had a remarkable impact on law and language, and has been implemented in many countries around the world34 (although as I argue in this book it has had less on implementation and reality). The crc has to some extent succeeded in confirming the child as an individual rights-holder. Many new questions were also raised, however. It is argued that the crc fails to uphold the standards contained in other instruments35 such as those relating to working36 and freedom rights.37 If we understand that children’s rights are “simply fundamental human rights for children”38 the crc successfully reinforced the inherently acceptable rights, for example that, as with adults, children can never be tortured39 or denied the right to life.40 The best interest principle in the crc also reinforces efforts to protect children where the interests of parents or states collide with those of children, for example where parents refuse necessary medical treatment for their child.41 Yet where ­children

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John Tobin, “Justifying Children’s Rights” 21 International Journal of Children’s Rights 395 (2013), at 395. Laura Lundy et. al., The un Convention on the Rights of the Child: A Study of Legal Implementation in 12 Countries (unicef, 2012), at 4. See further Ann Quennerstedt, “Children, but not Really Humans? Critical Reflections on the Hampering Effect of the ‘3 Ps’” 18 International Journal of Children’s Rights 619 (2010) and Chapter 1, Section 2.3. Aoife Daly, “A Commentary on the United Nations Convention on the Rights of the Child, Article 15: The Right to Freedom of Association and Peaceful Assembly” in Andre Alen et. al., eds, A Commentary on the United Nations Convention on the Rights of the Child (Martinus Nijhoff Publishers, 2016). Eva Brems, “Article 14: Right to Freedom of Thought, Conscience and Religion” in Andre Alen et al. eds, A Commentary on the United Nations Convention on the Rights of the Child (Martinus Nijhoff Publishers, 2005). Lucinda Ferguson, “Not Merely Rights for Children but Children’s Rights: The Theory Gap and the Assumption of the Importance of Children’s Rights” 21 International Journal of Children’s Rights 177 (2013), at 181. Michael Freeman, “Why It Remains Important to Take Children’s Rights Seriously” 15 International Journal of Children’s Rights 5 (2007), at 9. Ferguson, note 38, at 181. See for example cases such as North Western Health Board v W. (H.) [2001] iesc 70.

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wish to make their own decisions the crc appears to have been of limited assistance to date.42 This is certainly true when it comes to best interest proceedings. The crc does little if anything to highlight that there is no human rights terminology that neatly fits the children’s rights issue posed when best interest decisions are made by courts on their behalf.43 As pointed-out in Chapter 1, the process essentially involves ‘substitute decision-making’44 – that is, official decisions made by an adult on the child’s behalf because the child herself (apparently) cannot make the decision – though there appears to be some reluctance to see it as such. Adults do not enjoy (or suffer, depending on which way you look at it) such legal action, save where they have cognitive impairment.45 ­Children can, to some degree, rely on ‘due process’ rights and fair trial rights,46 – mostly general rather than child-specific, but nothing that adequately accounts for the reality of having decisions made on one’s behalf. There is a surprising lack of effort to get to theoretical grips with the unique nature, procedurally, of best interest decisions about children. There appears to be an ­assumption that the crc Article 12 right to be heard, and domestic manifestations, ­account for any questions which may exist about the validity of best i­nterest ­proceedings. It has already been argued in Chapter 1 that such assumptions about Article 12 are misguided – the right to be heard is not fit for this purpose.47 A closer inspection of the best interest principle and its application in children’s proceedings further emphasises that the degree of paternalism involved 42

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I argue elsewhere that there is, however, some potential to progress children’s freedom rights through the crc, but that it is necessary for academics, lawyers and others who promote children’s rights to start framing issues such as online freedoms and other private choices accordingly. Daly, note 36. It is probably no coincidence that it was found in a study gathering children’s views and experiences of proceedings that “[m]ost of the children interviewed did not understand the principle of ‘best interests’. The notion seemed too abstract for them and professionals did not appear to provide information on it to children. Some children were able to discuss the issue only after researchers provided a child-friendly explanation.” European Union Fundamental Rights Agency, Child-Friendly Justice: Perspectives and Experiences of Children Involved in Judicial Proceedings as Victims, Witnesses or Parties in Nine eu Member States (European Union Fundamental Rights Agency, 2017), at 33. For consideration of substitute decisions for people with cognitive impairment, see Chapter 1, Section 7. Ibid. See Chapter 1, Section 6. Chapters 4 and 5 highlight the many global examples which demonstrate this in practice.

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requires more than a ‘right to be heard’ to secure children’s rights as individuals with dignity. 2

The Best Interest Principle: Focusing on the Child [T]he child is not a parcel to be labelled and sent to wherever someone else decides …48

2.1 The Principle: From Justification to Rule The principle of the ‘welfare’49 or the ‘best interests’50 of the child (terms which are often used interchangeably) has remained paramount in official decision-making about children for most purposes.51 Although there are some contentions about its application – legal systems often struggle with how the principle sits in relation to an apparent right of parents to raise their children, for example52 – the principle generally prevails in liberal democracies, particularly in the post-crc era.53

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Twenty one year old young lady speaking about child inclusion in family court proceedings quoted in Jennifer McIntosh, “Four Young People Speak about Children’s Involvement in Family Court Matters” 15 Journal of Family Studies 98 (2009), at 102. ‘Welfare’ is the term which is relied upon in some jurisdictions, for example in Irish legislation (see the Child Care Act 1991) and in England and Wales (Children Act 1989). In the courts ‘best interests’ and ‘welfare’ are used interchangeably (see for example Re G. (Children) [2012] ewca Civ 1233 at para. 26) yet as noted in Chapter 1 some argue there is a difference between the two terms. See further Helen Stalford, Kathryn Hollingsworth and Stephen Gilmore, Children’s Rights Judgments: From Academic Vision to New Practice (Hart, forthcoming 2017), Chapter 2. crc Article 3. See Greg Mantle et al., “Whose Wishes and Feelings? Children’s Autonomy and Parental Influence in Family Court Enquiries” 37 British Journal of Social Work 785 (2007), at 786. See for example in the us Troxel v Granville, 530 us 57; 120 S Ct 2054; 147 LEd2d 49 (2000), where the court upheld the right of parents to raise their children without the interference of the claims of non-parents (for example grandparents). In England and Wales however, see Re K. (a minor: care and control) [1990] 1 wlr 431 and Re B. (A Child) [2010] 1 fcr 1, in which the courts emphasised that there was no right of parents to raise their children in a case where the child resides with another carer. See for example Section 60CA of the Family Law Act 1975 in Australia; Section 1 of the Children Act 1989 in England and Wales; Section 27 of the Child Care Act, 1991 in Ireland; Section 4 of the Care of Children Act 2004 in New Zealand and Section 11(7) of the Children (Scotland) Act 1995.

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The ‘best interest principle’ is, amongst other things, a legal device which is used by courts in cases in which they are called upon to make a determination in a case concerning a child.54 It is based on two premises: (1) Children are incapable of exercising their own legal rights so decisions must be taken on their behalf by adults; and (2) The principle should feature in all matters concerning children (including proceedings55) in order to ensure protection of children’s interests, as children are unlikely to do so themselves. The best interest principle has undoubtedly increased in status in the past three decades due to its position as one of the most prominent (if not the most prominent) of the crc rights – it is a ‘general principle’ of the crc – that is, a principle of such importance that all other crc rights must be interpreted bearing them in mind.56 The principle was to be found, however, in a significant amount of domestic legislation relating to children well before the existence of the crc.57 Early law referred to what the courts determined was ‘best’ for children. Until the 1900s it was to be controlled by fathers.58 Later it was to be cared for by a ‘psychological parent’59 (usually the mother). At present it is understood to involve care within a two-parent relationship.60 It reflects the idealisation of the traditional nuclear family; notwithstanding the fact that this model is very culturally-specific to the Global North and even here has only been prioritised

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Most of the discussion of the principle occurs in this context. John Eekelaar, “The Interests of the Child and the Child’s Wishes: The Role of Dynamic Self-Determinism” 8 International Journal of Law, Policy and the Family 42 (1994), at 42. 55 As outlined below at Section  5, depending on the type of case, the interests of the child should be the primary consideration (for example those concerning custody and ­adoption) – or a primary consideration (for example immigration and criminal law). 56 As with the right to be heard, it is one of the four ‘general principles’ of the crc. The other two are the principle of non-discrimination and the right of the child to life, survival and development. Committee on the Rights of the Child, General Comment No. 5: General Measures of Implementation of the Convention on the Rights of the Child CRC/GC/2003/5 (27 November 2003). 57 See generally Brian Bix, “The Best Interest of the Child” University of Minnesota Law School: Legal Studies Research Paper Series, Research Paper No. 08-08 (2008), at 1. 58 In Re Agar Ellis the court upheld the right of the father to prevent all contact between his teenage daughter and her mother on the basis that the court should not interfere unless a father was “at fault”. Re Agar Ellis (1883) lr 24 ChD 317. 59 That is, a sole, stable carer. Joseph Goldstein, Anna Freud and Albert Solnit, Before the Best Interests of the Child (The Free Press, 1979). 60 crc Article 9(3) stipulates that: “States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis …” (emphasis added).

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since ­industrialisation.61 In any case, this justificatory best interest language eventually turned into a standard itself: A rule that certain decisions should be based on the ‘best interests of the child’.62 It is stipulated in crc Article 3 that in all actions concerning children, “the best interests of the child shall be a primary consideration” of authorities. The Committee on the Rights of the Child elaborates in General Comment No. 14 that this involves a threefold concept – it is a substantive right for a child or children to have their best interests considered in all decisions concerning them; it is a legal principle which should be interpreted in the context of the crc; and it is a rule of procedure which necessitates an evaluation of possible outcomes and an explanation as to how this has been done.63 This all-encompassing nature of the right helps explain the prevalence of the principle in cases concerning children, and its fundamental relevance to children’s autonomy rights. Children have a ‘right’ to have their best interests considered, it is a principle by which to decide cases, and it is a procedure within cases. 2.2

In Defence of the Best Interest Principle: It Necessitates Focus on the Child’s Interests Your general needs have been considered and no specific matters requiring consideration have been identified other than the need to ensure you have access to suitable medical care whilst resident in the uk.64

The most positive aspect of the principle is that it insists on children’s interests as the focus of the decision, rather than the interests of other individuals such as parents. Without this focus, children can be treated as the property of their parents, with the right of parents to the control of their child becoming the prominent value base in judicial decision-making. Kant, in describing the value of a human being, stated that any individual must be treated “always as an end and never as a means only.”65 Without the best interest principle, ­children 61 62 63

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See Brenda Hale et al., The Family, Law and Society: Cases and Materials (6th edn, Oxford University Press, 2008). See Bix, note 57. Committee on the Rights of the Child, General Comment No. 14 on the Right of the Child to Have His or Her Best Interests Taken as a Primary Consideration CRC/C/GC/14 (29 May 2013), para. 6. Noted by uk authorities in process of refusing asylum to asylum seeking (and unaccompanied minor) child, quoted in Richard Warren and Sheona York, How Children Become ‘Failed Asylum Seekers’ (University of Kent, 2014), at 20. Immanuel Kant, Groundwork of the Metaphysics of Morals (1785).

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can become the means of their parents achieving a status, rather than an end in themselves; individuals whose rights deserve prominence. The principle can greatly benefit children who are faced with a clash of interests with the state – for example when it comes to immigration control (cases in which the best interests of the child are to be a rather than the primary consideration). It is highlighted elsewhere that the best interest principle is not always applied with the priority it deserves in these cases.66 The quote above demonstrates the lack of attention that the best interest principle is often accorded. This supposed ‘best interest determination’ is chilling in the context of the rejection of an asylum application by a child. Clearly the best interest of the child has in reality been given little, if any, priority here. This highlights the difficulty of emphasising the wishes of the child in a context where not even the most basic international human rights law (and often national law67) obligation – application of the best interest principle – has been met. Whilst the best interests and wishes of children in these proceedings are hugely important, and are not entirely separate from the subject of this book, they are not its main focus.68 The main aim of this book is to highlight that proceedings where the best interest of the child is the primary consideration are unique. Proceedings in family law and child protection are taken because children are children – adults would make the decision themselves. They are substitute decisions. This is why the best interest of the child is – and should be – the rather than a primary consideration. The judge is making the decision 66

See for example Warren and York, note 64; Trude Haugli and Elena Shinkareva, “The Best Interests of the Child Versus Public Safety Interests: State Interference into Family Life And Separation of Parents and Children in Connection with Expulsion/Deportation in Norwegian and Russian Law” 26 International Journal of Law, Policy and the Family 351 (2012) and Marcia Zug, “Should I Stay or Should I Go: Why Immigrant Reunification Decisions Should Be Based on the Best Interest of the Child” Brigham Young University Law Review 1139 (2011). 67 In z.h. Tanzania v sshd [2011] uksc 4 it was established that the course in favour of the best interest of the child should be followed unless reasons of “considerable force displace them” (para. 46), yet this line of reasoning is not being followed in many immigration cases concerning children. Warren and York, note 64, at 20. 68 This is considered in detail below at Section 5. It should be noted, however, that sometimes in immigration cases the decision involved may transition to one where the best interest of the child is the primary consideration, for example where it is being considered whether a child should be separated from her parents. This is the type of case with which this book is concerned, as this is a ‘best interest decision’ because the best interest of the child is the primary consideration. See further un High Commissioner for Refugees, unhcr Guidelines on Formal Determination of the Best Interests of the Child (un High Commissioner for Refugees, 2006), at 10.

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on behalf of the child, because the child is considered to lack legal capacity to take the decision themselves. It is only fair that in such cases – that is, those being decided about an individual child because she cannot make it herself – it is the child’s interests, rather than those of anyone else, which determine the outcome. Some alternatives to the best interest principle have been proposed which recommend a shift away from the child as the priority. Herring, for example, argues that the principle unjustifiably prioritises children’s interests over those of others, proposing alternative approaches such as formulae to balance the interests of all parties.69 Indeed there has been a question mark in recent years over whether the best interest principle as applied in England and Wales is compatible with the European Convention of Human Rights because of the degree to which the principle potentially overrides or ignores parents’ ‘rights’.70 echr Article 8 encourages a balancing exercise in relation to the rights of individuals in family law cases. Yet ‘parental rights’ is a term which has been eclipsed somewhat in England and Wales by the inclusion of the notion of ‘parental responsibility’ in the legislation.71 Parents do not exercise children’s rights for the sake of parental power – they do it because they are holding that power in trust until children can exercise their own rights.72 Therefore, if for whatever reason they can no longer do this – because two parents disagree for example – and authorities must take the decision, it is children’s interests that come first. This is what the best interest principle requires. And this is the way it should remain. It is admittedly sometimes difficult to identify where the rights and interests of children end and those of parents begin, as they are so intimately intertwined. The best interest principle need not mean obliteration of the parental position. First, the best interest principle is understood to require that the 69

Jonathan Herring, Family Law (5th edn, Pearson Education Ltd, 2011), at 40. See also Helen Fenwick and Shazia Choudhury, “Taking the Rights of Parents and Children Seriously: Confronting the Welfare Principle Under the Human Rights Act” 25 Oxford Journal of Legal Studies 453 (2005) and Helen Reece, “The Paramountcy Principle: Consensus or Construct?” 49 Current Legal Problems 267 (1996). 70 See for example John Herring, “The Human Rights Act and the Welfare Principle in Family Law: Conflicting or Complementary?” 27 Child and Family Law Quarterly 223 (1999), at 224 and Fenwick and Choudhury, ibid. 71 Children Act 1989, Section 2. See also In Re B. (A Child), in which the judge stated that: “It is only as a contributor to the child’s welfare that parenthood assumes any significance. In common with all other factors bearing on what is on the best interests of the child, it must be examined for its potential to fulfil that aim.” Re B. (A Child) [2009] ewca Civ 545, para. 37. 72 See crc Article 5 and Gillick v West Norfolk and Wisbech Area Health Authority [1986] ac 112.

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child’s welfare be considered the sole consideration, yet in practice the courts frequently protect parents’ interests in the best interest determination,73 as to harm parents will usually also harm their children.74 Second there exists generally an enormous legal preference in favour of birth parents as opposed to third parties,75 as most of the time, it is best that parents (rather than third parties) have legal control over decisions made about their children.76 The principle of the best interest of the child should not be seen as undermining this – the state does not intervene unless parents have asked them to (private law) or there are child protection concerns (public law). If the state does intervene unjustifiably, a problem exists which is distinct from the best interest principle, contrary to what is argued by some authors opposed to the principle.77 Therefore there are many reasons why the best interest principle is necessary. There is a level of arbitrariness and unfairness evident in systems which do not apply the best interest principle and this strongly justifies its existence. Some states, rather than applying the principle, prefer a mother or father in a family law dispute on the basis of the age78 or the gender of the child.79 73 74

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See for example In Re G. (Children) [2006] ukhl 43. Jonathan Herring, “Farewell Welfare” 27 Journal of Family and Social Welfare Law 159 (2005), at 166. This is perhaps best demonstrated in relocation cases, an area of the law in which the interests of the primary carer are intertwined with children’s interests to a very challenging degree. Robert George, “Practitioners’ Views on Children’s Welfare in Relocation Disputes: Comparing Approaches in England and New Zealand” 23 Child and Family Law Quarterly 178 (2011), 200–2. See for example y.c. v United Kingdom, Appl. No. 4547/10, judgment of 13 March 2012. In Re k.d. (A Minor)(Ward: Termination of Access) [1988] ac 806, it was famously stated that “the best person to bring up a child is the natural parent. It matters not whether the parent is wise or foolish, rich or poor, educated or illiterate, provided the child’s moral and physical health are not endangered.” At 812. Of course, the extent to which parents then negotiate these decisions with their children is another matter. See consideration of this point in Chapter 5, Section 4.2. See for example Guggenheim who (unconvincingly) argues that the principle unjustifiably undermines parental rights. Martin Guggenheim, What’s Wrong with Children’s Rights (Harvard University Press, 2005). Considered further below Section 2.3. See a rebuttal of Guggenheim’s argument in Michael Freeman, “Review Essay: What’s Right with Rights for Children” 2 International Journal of Law in Context 89 (2006). This was enshrined in the Custody of Infants Act 1839 of England and Wales, which was replaced by the Matrimonial Causes Act 1857. See Bainham and Gilmore, note 8, at 17. This practice still occurs in many states today. See Aayesha Rafiq, “Child Custody in Classical Islamic Law and Laws of Contemporary Muslim World (An Analysis)” 4 International Journal of Humanities and Social Science 269 (2014). In Spain, until 1981, if both parents were ‘innocent’ in the relationship breakdown, where children were aged seven years, sons remained with fathers and daughters with mothers (Articles 70 and 73 Civil Code). See Piconto Novales, note 9.

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In Ireland, until recently,80 birth parents – as long as they were married – ­enjoyed a level of privilege which seriously undermined basic levels of welfare for children. In one 2006 Irish case, a child of two and a half years was moved from prospective adopter de facto parents, the only parents she had known, to (stranger) birth parents because the birth parents had strategically married in order to secure her return.81 Laws aimed at upholding cultural links for children can similarly undermine basic child welfare principles, as was demonstrated when a two year old was likewise moved from her prospective adopter carers to her (stranger) birth father on the basis of a law designed to ensure Native American children remain in that community, apparently even where they have never lived there previously.82 Such laws incline against the fact that we accept there is harm to children – sometimes significant – when early attachments are broken.83 It rejects the dignity of the individual in favour of societal prejudices and assumptions (such as preferring birth parents even at a high cost to children), and essentially sacrifices children’s well-being in the interests of social engineering. Conversely, the principle of the best interest of the child demands a focus on children themselves. This is the best means that we have for making judgments about children’s personal lives where children genuinely cannot make them themselves. The main change for which I am advocating then is not that we do away with the best interest principle, but that children as autonomous individuals become more prominent within it. Where children have wishes in best interest proceedings, this should be considered the priority. Far from undermining the best interest principle, a children’s autonomy principle would bolster it. As outlined in detail in Chapter 3, respect for one’s autonomy is 80

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Irish law is, at the time of writing, in a state of flux after the Constitution of Ireland was amended to contain an explicit reference to children’s rights. How this will look in practice is still being determined. See for example the Children and Family Relationships Act 2015, which reforms family law to address the situation of children of diverse families. Under the relevant law the question was not what was in the best interests of the child, but whether the birth parents had failed in their duty to the child by initially giving her up for adoption. N. and Anor. v Health Service Executive and Ors. [2006] iehc 278; [2006] iesc 60. The federal Indian Child Welfare Act 1978 was enacted “to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families.” Marcia Zug, “Deciding a Baby’s Fate” Dallas News 2012 (Aug. 2012) Available at http://www .dallasnews.com/opinion/commentary/2012/08/31/marcia-zug-deciding-a-babys-fate (last accessed 29 Dec. 2016). See John Bowlby, Maternal Care and Mental Health (World Health Organisation, 1951) and John Bowlby, Attachment and Loss: Volume i – Attachment (2nd edn, Clifford Yorke, 1982).

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c­ rucial to well-being.84 Applying the children’s autonomy principle brings this point more explicitly into the best interest determination, which enhances the best interest determination exercise in terms of effectiveness – it makes it more evidence-based, as we know feelings of autonomy boosts well-being – and ­legitimacy, as a focus on autonomy mitigates the undue paternalism. But the exercise itself should still stand. 2.3

Protecting Children AND Respecting Autonomy: Does the Rights Framework Provide the Answer? I guess that’s the most important thing ’cos the children are mostly the ones, well I think are the most important things to say ’cos they normally, I don’t know, but they have a better brain for some things.85

Arguing for a children’s autonomy principle does not mean outright rejection of the best interest principle. Likewise, although crc Article 12 needs revisiting, this is not to reject the international human rights framework in which it sits, but simply to seek to modify its focus in favour of children’s autonomy.86 Some theorists argue against children’s inclusion in the rights framework precisely because the crc attempts to introduce autonomy rights for children. Therefore it is necessary to point out that, though I argue that the rights framework (that is the crc and other instruments) has not emphasised children’s autonomy sufficiently, it has the potential to do so. Although an amended Article 12 would be preferable,87 likewise children’s advocates could push for an interpretation of the crc Article 12 right to be heard to mean a right to autonomy to the extent

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See Chapter 3, Section 2. Eleven year old girl with experience of family law proceedings, quoted in Gillian Douglas et al., Research into the Operation of Rule 9.5 of the Family Proceedings Rules, 1991 (Department for Constitutional Affairs, 2006), at 111. There is a broad and ever-increasing body of writing on the theory of children’s rights. In-depth consideration of this topic generally can be found elsewhere. See for example Ferguson, note 38: Lars-Göran Sund and Marie Vackermo, “The Interest Theory, ‘Children’s Rights and Social Authorities’” 23 International Journal of Children’s Rights 752 (2015); Kirsten Sandberg, “The Convention on the Rights of the Child and the Vulnerability of Children” 84 Nordic Journal of International Law 221 (2015); Hamish Ross, “Children’s Rights: A Defence of Hartian Will Theory” 22 International Journal of Children’s Rights 43 (2014); Tobin, note 33; Hamish Ross, “Children’s Rights and Theories of Rights” 21 International Journal of Children’s Rights 679 (2013); Sund, note 18. See further Chapter 1, Section 8.2.

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possible.88 The international human rights law framework can provide opportunities to vindicate children’s autonomy whilst protecting them where truly necessary. There is no need to throw the crc “baby out with the bathwater.”89 There is a balance to be struck between protecting children and treating them as equals – the crc contains a basis for this – but it requires that the scales are tipped more towards equality for children. A minority of theorists argue that the rights framework is not the appropriate or most effective vehicle for furthering children’s well-being, particularly because children often cannot enforce their own rights (for example in infancy).90 The argument that children should not be seen as rights-holders often revolves around the idea that adult protection is crucial to their learning experiences – that is, parents should make decisions on children’s behalf, teaching children about decision-making in the process.91 Yet children make decisions all the time. This gap between assumptions and reality raises the question as to whether the reluctance to afford children autonomy-type rights is really about upholding parental power. The work of Guggenheim suggests that it is. He states that, although children’s rights are appropriate in the context of protection against state interference (for example in criminal law, see In Re Gault), it is questionable whether “children need rights or that speaking in terms of ‘rights’ is even good for children”,92 basically because of the risk of undermining parents.93 This argument makes little sense where conflicts of 88 89

See further Chapter 7, Section 1.1. Matias Cordero Arce, “Maturing Children’s Rights Theory” 23(2) The International Journal of Children’s Rights 283 (2015), at 303. 90 See for example Onora O’Neill, “Children’s Rights and Children’s Lives” in Philip Alston, Stephen Parker and John Seymour, eds, Children, Rights and the Law (Oxford University Press, 1992), at 25. See further Neil MacCormick, “Children’s Rights: A Test-Case for Theories of Right” 62 Archiv fur Rechts und Sozialphilosophie 305 (1976). Other theorists have refuted this claim, of course. See for example John Tobin, “Understanding Children’s Rights: A Vision Beyond Vulnerability” 84 Nordic Journal of International Law 155 (2015), at 159 and Michael Freeman, The Rights and Wrongs of Children (Frances Pinter, 1983), at 52–6. 91 See Bruce Hafen and Jonathan Hafen, “Abandoning Children to their Rights” First Things (Aug./Sep. 1995). See also Laura Purdy, In Their Best Interest?: The Case Against Equal Rights for Children (Cornell University Press 1992) who argues that children’s freedom should be limited in order for them to acquire the qualities desirable in ‘fully developed’ citizens. 92 Martin Guggenheim, What’s Wrong with Children’s Rights (Harvard University Press, 2005), at xi. 93 Guggenheim, ibid, at 32. See also Freeman’s statement that “Goldstein, Freud and Solnit, for example, identify only three rights which they believe should be available to children: to autonomous parents, to be represented by parents and to parents who care …” Michael

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interests arise between two parents and where child protection issues arise. It is simply unjustifiable to refuse children rights in these scenarios or to consider children only in the context of the rights of others. Freeman points out that “[r]ights are important because they recognise the respect the bearers are owed. To accord rights is to respect dignity: to deny rights is to cast doubt on humanity and on integrity.”94 Positioning children as rights-holders is crucial therefore. There is no denying, however, that children’s rights should not be identical to those of adults. Just because childhood is over-idealised in the industrialised world does not mean that children should not have special protection.95 We cannot abandon children to child labour or child marriage for example. It has been suggested that a major flaw of the constructionist approach to childhood is that it perceives differences between adults and children simply as works of fiction.96 It is misguided, potentially harmful, and contrary to children’s rights to proceed on the basis that all children should be treated the same as all adults. Denying the differences between adults and children will result in a failure to acknowledge the power relationship between these two groups.97 To take a hypothetical situation, if a case were to arise whereby a child herself attempted to assert through the courts or elsewhere a ‘right to marry’ an adult at, say, age 12, this child should be perceived as requiring protection from that situation. There is likely at least one exploitative adult at work in such a situation (the potential suitor). There is undeniably a point where there is a duty to engage in paternalism to protect children against harmful ‘choices’.98 Freeman, “Why It Remains Important to Take Children’s Rights Seriously” 15 International Journal of Children’s Rights 5 (2007), at 9. See Joseph Goldstein, et al., The Best Interests of the Child: The Least Detrimental Alternative (Free Press, 1996). 94 Freeman, note 77, at 90. 95 See Freeman, note 90, at 45. 96 Lee, note 31, at 1. 97 Ian Hutchby and Jo Moran-Ellis, eds, Children and Social Competence: Arenas of Action (Falmer Press, 1998), at 17. Cited in Virginia Morrow, “We are People Too: Children’s and Young People’s Perspectives on Children’s Rights and Decision-Making in England” 7 International Journal of Children’s Rights 149 (1999), at 151–2. 98 See London Borough Tower of Hamlets v B. [2015] ewhc 2491 in which a 16 year old was taken into state care where she and her family were planning for her to marry isil (Islamic State of Iraq and the Levant) fighters in Syria. She was apparently an eager, active participant in the plan. The judge made (at para. 5) the point that: “The reality is that the future for such girls as we know, holds only exploitation, degradation and risk of death; in other words these children with whose future I have been concerned, have been at risk of really serious harm and as such the State is properly obligated to protect them. As

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So there is a tension between recognising children’s distinct position (as generally more vulnerable than adults) on the one hand but refraining from discrimination and exclusion on the other. This dilemma resembles the ­protection/participation dichotomy proposed in much of the children’s rights literature. The protection/participation language, however, is fundamentally misguided, primarily because the term ‘participation’ is so problematic. If, however, we pose the question as: “How do we facilitate children’s autonomy whilst recognising their particular needs as children?” we get closer to solving the riddle.99 By shifting the terminology (to autonomy) and the narrative (from children as ‘other’ to children as equals) then the rights framework can be a genuine tool for vindicating children’s autonomy in best interest proceedings. The positive aspect of the crc is that it contains the basics of this approach – a best interest principle for protecting children, and a right to be heard for empowering children; it is just that the right to be heard has ultimately been insufficient in practice (which poses questions about its suitability in the first place).100 Therefore the best interest principle should be retained, but we require a mitigation of its paternalism. This mitigation should involve more than a right to be heard, particularly for children with wishes as to the outcome of the best interest decision. 3

Where Should the Limits of the Best Interest Principle Lie? Many sleepless nights or feelings of low self-esteem felt by young people could have been avoided if what they had to say was taken on board instead of the huge misconceptions I reckon my Judge had. Children and their needs were nowhere in this equation.101

It is a challenge to attempt to make sense of the interaction of the best interest principle and ‘children’s rights’. In the types of proceedings which are the primary focus of this book – cases being decided because the individual is

capacitous adults they will, of course, be free to join whatever cause they wish, however ignoble others may regard it as being.” 99 Freeman’s ‘liberal paternalism’ for example sought to “confine paternalism for children without totally eliminating it.” See note 90, at 55. 100 See Chapter 1, Section 5. 101 Nineteen year old male speaking of his experiences of family proceedings as a child, quoted in McIntosh, note 48.

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­ nder 18 years, that is, because they are children102 – do children have a right u to have decisions taken in their best interests?103 Or should the extraordinarily paternalistic best interest principle be perceived more as a threat to children’s rights, if we understand children’s autonomy to be a vital component of such rights? It appears a question of degree – the justifiability of the best interest principle depends on how sweeping it is, which is why the children’s autonomy principle aims to mitigate its power. 3.1

Where Should the Line be for Children’s Choices? Rejecting the ‘Capacity’ Notion Judges and Cafcass practitioners need to take our feelings onboard and not dismiss them due to our age or how we articulate them.104

Theorists have examined in some detail the philosophy of the justifiability of the best interest principle in the context of children as rights-holders. The majority of commentators base their justification of the principle on the premise that once children ‘have capacity’ (often taken to mean Gillick competence) they should be able to exercise their own rights. As I argue in Chapters 3 and 6, this is a flawed notion for the purpose of justifying many of the problematic elements of the best interest principle, but it is worth considering the argument here. For many theorists, the answer to questions about the limits of children’s autonomy is about the capacity/incapacity divide: “[A]n interest in avoiding harm would justify limiting a child’s liberty to make potentially disastrous selfregarding choices, until he or she is fully capable of understanding the implications of a decision.”105 Of course, capacity is not a straightforward concept and it is inaccurate to view it as an adequate moderator of paternalism in best interest proceedings.106 In any case, courts do not generally seek to establish 102 That is, cases in which the best interest of the child is the primary consideration. 103 Children who are parties in proceedings involving criminal law and immigration clearly have a right for decisions to be taken with their best interests as a primary consideration (preferably the primary consideration although this rarely happens) because their interests are often considered to be at odds with those of the state. See further Section 5.2 below. 104 Fifteen year old girl speaking about child inclusion in family court proceedings, quoted in McIntosh, note 48, at 99. cafcass is an England/Wales agency – see Chapter 4. 105 Jeanne Snelling, “Minors and Contested Medical-Surgical Treatment: Where Are We with Best Interests?” 25 Cambridge Quarterly of Healthcare Ethics 50 (2016), at 54. 106 See for example Chapter 3, Sections 5 and 6.

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whether ­children have reached a level of mental capacity in the legal sense.107 Therefore the assertion of Snelling (and others) about capacity does not tell us much – if anything – about where courts should draw the line when imposing ‘best interest’ decisions on children. Authors rightly suggest that a legal framework must prevent people from making disastrous (that is, fundamentally ­safety- or life-threatening) decisions, or that framework will be negligent.108 Yet the framework of the best interest principle for children goes well beyond this – judges essentially have absolute discretion to override children’s wishes.109 Although this level of discretion is problematic for children of all ages (children can have views and preferences no matter how young) it is particularly unsuitable for older children, especially adolescents. One effect of absolute discretion has been the production of contradictory approaches, many contrary to children’s autonomy, even within jurisdictions. For example in England and Wales the wishes of adolescents have been respected in cases where a vulnerable adolescent wished to instruct her own lawyer110 and another wished to sell her story to a newspaper.111 Yet their wishes have been overridden in attempts by children to testify by video link,112 and to resist inoculations (in a case where parents were in disagreement).113 The potential outcomes in the latter cases simply cannot be said to have potential consequences which were any worse than the former. The standard which is almost always applied in such cases is one involving absolute discretion, save for a ‘right to be heard’.114 107 See Chapter 5, Section 1.3. 108 See for example Jonathan Herring, Vulnerable Adults and the Law (Oxford University Press, 2016); Jonathan Herring and Jesse Wall, “Autonomy, Capacity and Vulnerable Adults: Filling the Gaps in the Mental Capacity Act” 35 Legal Studies 698 (2015), at 698; Charles Foster, Choosing Life, Choosing Death: The Tyranny of Autonomy in Medical Ethics and Law (Hart, 2009); and see further Chapter 3. 109 In England and Wales, judges’ decisions can only be overridden on appeal in family law cases if they erred in law or were plainly wrong. The parens patriea jurisdiction of the courts also means that courts can potentially act in the place of the parent of any child. 110 W. (A Child) [2016] ewca Civ 1051. 111 Re Roddy (A Minor); Torbay Borough Council v Associated Newspapers Ltd. [2003] ewhc 2927. 112 P.-S. (Children) [2013] ewca Civ 223. 113 F. v F. [2013] ewhc 2683. See Emma Cave, “Adolescent Refusal of mmr Inoculation: F (Mother) v F (Father)” 77 Modern Law Review 619 (2014). Cave argues that insignificant weight was placed on the children’s wishes in this case. 114 There have been some exceptions. Sweden, Finland and Norway render children’s preferences determinative at certain ages (although it is not always applied in practice, in Sweden at least). Australia changed the law to do way with such a prioritisation for those over 14 years in the 1980s. See further Chapter 4.

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The current approach therefore seems impossible to change. However it would be eminently possible to introduce a mechanism into the best interest principle to make it fairer for children, particularly older children. The best interest principle should be retained, but modified to prioritise autonomy. It is correct that children who are older and more ‘mature’ (as hard as this is to define)115 should enjoy a special focus in attempts to modify the best interest principle to make it more rights-based. There have been particular efforts at international level to conceptually distinguish adolescents, for example, from younger children.116 Yet a focus on the capacity/incapacity dichotomy is not the way forward for modifying the best interest principle. It devalues the experiences and preferences of children who are younger, less articulate, and those with cognitive impairment. It also leaves it all too easy for adults to decide that somebody lacks ‘capacity’ as there is little understanding of what that means. Yet unfortunately, a focus on capacity is the approach proposed by Snelling and others, it is manifested in the Gillick case, and advocated in crc Article 12. As explored in detail in Chapters 3 and 6, a different approach is required which moves away from this simplistic dichotomy and instead asks whether the paternalism (in the sense of overriding children’s wishes) is actually necessary for protection; not whether a child has capacity, though this may be a relevant factor. 3.2

Is the Best Interest Principle a Principle of Prejudice? When one considers the depressing evidence on outcomes for looked after children in adult life, humility about our ability to know what is in children’s best interests seems to be the appropriate emotion.117

This book focuses on the autonomy deficit in best interest proceedings, but there are problems inherent in the best interest principle that are perhaps even more fundamental than that. The best interest standard immediately raises the question, how can one know what is best for a child? Does that not 115 See Chapter 5, Section 1.3. 116 In the Committee on the Rights of the Child, General Comment No. 20 (2016) on the Implementation of the Rights of the Child during Adolescence CRC/C/GC/20 (6 December 2016) it is stated that “the reali[s]ation of the rights of adolescents differ significantly from those adopted for younger children.” (para. 1). The regional Ibero-American Convention on Youth Rights (2005) aims to draw attention to the rights of ‘youth’, which it defines as those between 15 and 25 years of age. 117 Eileen Munro, “Empowering Looked After Children” 6 Child and Family Social Work 129 (2001), at 135.

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lie in the eye of the beholder? It has been criticised on the basis that it lacks content, and that, for example, the crc fails to offer a definition of what a child’s best interests might actually be.118 To be fair, the crc itself does provide a long list of rights which can be used to determine a child’s best interests in a particular case and the Committee on the Rights of the Child has attempted to elaborate on the principle.119 Yet the crc rights are open to different – perhaps infinite – interpretations. There is much truth in the assertion that the best interest principle often seems of more rhetorical than real value.120 Everyone agrees that a child’s best interests are important, but often it is unclear what those best interests might be. The vague nature of the standard renders it so indeterminate that it resembles a sociological model rather than a solid juridical standard;121 though Eekelaar argues that this is appropriate, as this “opens the way for evaluating the effects of social rules on particular children and for creative solutions that go beyond such rules.”122 It is clear, however, that the downside of the principle is quite a downside indeed – that it permits the imposition not only of society’s dominant values, but those values of the types of individuals that become judges – generally white, middle class males (and always adults, of course). There is evidence that judges’ subjective preferences, rather than rational argumentation, may determine the outcome of cases.123 This is somewhat inevitable since, as was acknowledged in Airedale nhs Trust v Bland, where judges must develop new law to respond to new circumstances, “the law so laid down will of necessity reflect judges’ views on the underlying ethical questions, questions on which there is a legitimate division of opinion.”124 As the best interest principle is applied in various different circumstances, the ‘ethics’ and other personal approaches of 118 Rosalind English, “Analysis: Children’s ‘Best Interests’ and the Problem of Balance” uk Human Rights Blog (2 Feb. 2011). Available at http://ukhumanrightsblog.com/2011/02/02/ analysis-childrens-best-interests-prevail-in-immigration-decisions/ (last accessed 3 Oct. 2016). 119 Committee on the Rights of the Child, General Comment No. 14, note 63. 120 Munro, note 117. 121 Elisa Pérez-Vera, Explanatory Report on the Hague Abduction Convention, (Hague Conference on Private International Law, 1981), at para. 21. Pérez-Vera cites the ‘Dyer Report’: Adair Dyer, Questionnaire and Report on International Child Abduction (One Parent, August 1977). 122 John Eekelaar, “The Role of the Best Interests Principle in Decisions Affecting Children and Decisions about Children” 23 International Journal of Children’s Rights 2 (2015), at 26. 123 See for example Marit Skivenes, “Judging the Child’s Best Interests: Rational Reasoning or Subjective Presumptions?” 53 Acta Sociologica 339 (2010). 124 Airedale nhs Trust v Bland [1993] ac 789, at 879–80.

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the individual judge will inevitably dictate outcomes, no matter how diligent the effort to remain objective. The best interest principle can mask prejudices,125 for example those ­derived from anti-gay126 or pro-Christian/’Western’127 approaches. Théry describes the best interest principle as an “alibi for dominant ideology, an alibi for individual arbitrariness, an alibi for family and more general social policies for which the law serves as an instrument.”128 In clinical practice in England and Wales, it has been argued that ‘best interests’ is taken to mean ‘best medical interests’.129 Research from the us demonstrates that parents who come out as gay sometimes lose ‘custody’ of their child to the straight parent.130 By the same token, the best interest principle inevitably involves adult judges making decisions about individual members of a group – children – about whom they frequently have preconceived notions and assumptions.131 Indeed the principle encourages this, as it is premised on the notion of children as 125 Michael Freeman, “Article 3: The Best Interests of the Child” in Andre Alen et al., eds, A Commentary on the United Nations Convention on the Rights of the Child (Martinus Nijhoff Publishers, 2007), at 2. Freeman cites Irène Thèry, ‘“The Interest of The Child” and the Regulation of the Post-Divorce Family’ in Carol Smart and Selma Sevenhuijsen, eds, Child Custody and the Politics of Gender (Routledge, 1989), at 81. 126 See Freeman, ibid, at 2. 127 Suhraiya Jivraj and Didi Herman, “‘It is Difficult for a White Judge to Understand’: Orientalism, Racialisation, and Christianity in English Child Welfare Cases” 21 Child and Family Law Quarterly 283 (2009). 128 Irene Théry, “The Interest of the Child and the Regulation of the Post-Divorce Family”, in Carol Smart and Selma Sevenhuijsen, eds, Child Custody and the Politics of Gender (Routledge, 1989). Cited in Michael Freeman, “Upholding the Dignity and Best Interest of Children: International Law and the Corporal Punishment of Children” 73 Law and Contemporary Problems 211 (2010), at 217. 129 Helen Taylor, “What Are ‘Best Interests’? A Critical Evaluation of ‘Best Interests’ DecisionMaking in Clinical Practice” 24 Medical Law Review 176 (2016). 130 Emily Haney-Caron and Kirk Heilbrun, “Lesbian and Gay Parents and Determination of Child Custody: The Changing Legal Landscape and Implications for Policy and Practice” 1 Psychology of Sexual Orientation and Gender Diversity 19 (2014). See also David Chambers and Nancy Polikoff, “Family Law and Gay and Lesbian Family Issues in the Twentieth Century” 33 Family Law Quarterly 523 (1999), at 532. There are of course more progressive outcomes in such cases also, for example the Inter-American Court of Human Rights found against a domestic law decision that ‘custody’ would not go to the mother on the basis of her lesbian identity in Atala Riffo and Daughters v Chile. Inter-American Court of Human Rights Case 12.502 (24 February 2012). See further Nicolás Espejo-Yaksic, “Children’s Rights and the Inter-American Court of Human Rights,” Paper presented at Kellogg College (Oxford, 4 Dec. 2013). 131 See Chapter 5, Section 4 for consideration of these assumptions.

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primarily dependent and in need of adult control. The principle intends that adults will focus on children in their individuality, yet inevitably adults will be distracted by their own experiences, assumptions and beliefs: “[T]heir own memories of childhood, their own projection of what the child wants and needs.”132 The lack of clarity around what is ‘best’ for children’s futures is a huge challenge.133 The difficulties of such decisions become clear when one considers the vastness of the question: Deciding what is best for a child poses a question no less ultimate than the purposes and values of life itself. Should the judge be primarily ­concerned with the child’s happiness? Or with the child’s spiritual and religious training? Should the judge be concerned with the economic “productivity” of the child when he grows up?134 This has implications for parents seeking to raise children in a preferred manner which is contrary to that valued in the liberal democracy, for example those wishing to raise their children in an ultra-Orthodox lifestyle, when they end up in best interest proceedings.135 It likewise has implications for children’s autonomy. Due to the subjectivity of the best interest principle, dominant values are applied in a way that gives undue weight to ‘protection’ concerns, which often makes it impossible for children to realise their preferences where they incline against established orthodoxy,136 such as the assumption that children must have contact with both parents, or a determination by social workers that cutting contact with inadequate birth parents is less harmful than having a relationship them.137 It has permitted free reign to adult decision-makers to override children’s 132 Jean Koh Peters, Representing Children in Child Protective Proceedings: Ethical and Practical Dimensions (3rd edn, LexisNexis, 2007), at 23. 133 See Lawrence Moloney, “The Elusive Pursuit of Solomon: Faltering Steps toward the Rights of the Child” 46 Family Court Review 39 (2008) and Chapter 5, Section 4. 134 Robert Mnookin, “Child Custody Adjudication: Judicial Functions in the Face of Indeterminacy” 39 Law and Contemporary Problems 226 (1975), at 260–1. 135 For example the less restrictive education proposed by the mother was preferred in Re G. (Children) [2012] ewca Civ 1233, a case which involved a dispute between parents when the mother left the ultra-Orthodox lifestyle. 136 Daly, note 36. 137 See Miguel Clemente, “Judicial Decision-Making in Family Law Proceedings” 43 The American Journal of Family Therapy 314 (2015); Liz Trinder, “Climate Change: The Multiple Trajectories of Shared Care Law, Policy and Social Practices” (2014) 26 Child and Family Law Quarterly 30; Adrienne Barnett, “Contact at all Costs? Domestic Violence and

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­ references, often without so much as an explanation,138 and sometimes in a p manner that appears more preoccupied with ‘protection’ at all costs than with legal reasoning.139 In family law cases ‘protection’ often seems to simply mean control, particularly as it pertains to ‘protection’ of a parental relationship (in the words of one judge “even if [the child] does not want it”140) and other such factors that do not relate to protecting a child from harm as one would generally understand it. A focus on autonomy in best interest proceedings would, for children with preferences at least, ensure that the child’s wishes are prioritised unless it was genuinely unsafe to do so. One could argue that prioritising autonomy is in fact deifying yet another subjective value, like the value of children’s relationship with both parents as crucial, or the value that children should always obey adults. To an extent this is true. However the ideal of autonomy in one’s personal life is what is valued in the liberal democracy. This is the ideal which adults aspire to. Therefore whilst autonomy may be another subjective value; prioritising it for children is simply mitigating the adult-child dichotomy which treats under-18s as incapable and over-18s as capable in a clumsy way; one which does not reflect reality. Furthermore, as outlined in Chapter 3, autonomy is crucial to well-being, and so generally prioritising autonomy is, in fact, prioritising children’s welfare. 4

The Best Interest Principle in Practice Interviewer: Yeah. OK. Do you think that this decision was made in your best interests? Child: I do not know. I really do not know.141

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Children’s Welfare” 26 Child and Family Law Quarterly 439 (2014); See further Chapter 5, Section 4.3. The judge refused to meet with Ellie Butler, for example, a six year old beaten to death by her father when she was returned to the care of her birth parents (against her wishes) after living with her grandparents for almost all of her short life. Diane Taylor, “Ellie Butler Had Begged Not to be Sent Back to her Parents, Says Aunt” The Guardian (22 Jun. 2016). Available at https://www.theguardian.com/uk-news/2016/jun/22/ellie-butler-had -begged-not-to-be-sent-back-to-her-parents-says-aunt (last accessed 30 Dec. 2016). See for example P.-S. (Children) [2013] ewca Civ 223 considered in Chapter 4, Section 3.3.4, and Freeman’s consideration of orders concerning children refusing blood transfusions: Freeman, note 77. Re W. (Contact: Joining Child as a Party) 2003 1 flr 681, para. 16. Fifteen year old girl in a child care case in France. European Union Fundamental Rights Agency, note 43, at 111.

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4.1 Factors in Best Interest Determinations As vague an exercise as the best interest determination may be, a few principles have been laid down in some circumstances for judges to follow. It has been determined in England and Wales that establishing the course of action which best serves a child’s best interests should be approached in a “holistic” way, with a wide range of factors requiring consideration: Everything that conduces to a child’s welfare and happiness or relates to the child’s development and present and future life as a human being, including the child’s familial, educational and social environment, and the child’s social, cultural, ethnic and religious community, is potentially relevant and has, where appropriate, to be taken into account.142 Various lists of factors have been adopted in national legal systems to guide best interest decisions, reflecting the values, beliefs and philosophies of liberal democracies. These lists aim to provide focus points for judges but ultimately highlight the broad nature of the ‘best interest’ enquiry. In England and Wales the factors are: children’s “wishes and feelings”, needs, likely effects of change, characteristics, risk of harm, capability of parents and power of the courts.143 New Zealand has a similar list,144 which is explicitly crc-based.145 Research from Quebec highlights common principles used by judges and other decision-makers such as providing stability to children.146 As useful as such lists and factors are, they tell us little about what to prioritise in the decisionmaking process. Should welfare considerations take precedence, for example, over religious considerations? Should safety trump a child’s wishes? This is left 142 143 144 145

Re G. (Children) [2012] ewca Civ 1233 at para. 26. The Children Act 1989 Section 1(3). Section 5 of the Care of Children Act 2004 [New Zealand]. See Care of Children Bill [New Zealand] 2003 (54–2) (Select Committee report), at 3, and Kacem v Bashir [2010] nzsc 112 in which the priority for items on the checklist was considered. The Court determined that the priority to be placed on each item will depend on the particulars of the individual case. 146 See Elisabeth Godbout, Claudine Parent, and Marie-Christine Saint-Jacques, “Positions Taken by Judges and Custody Experts on Issues Relating to the Best Interests of Children in Custody Disputes in Quebec” 29 International Journal of Law, Policy and The Family 272 (2015), at 273. They cite Elisabeth Godbout, Claudine Parent, and Marie-Christine SaintJacques “Les Séparations Hautement Conflictuelles et le Meilleur Intérêt de l’Enfant vus de l’Intérieur: Analyse du Point de Vue des Experts et des Juges” in Marie-Christine SaintJacques et al., eds, Séparation Parentale, Recomposition Familiale: Enjeux Contemporains (Presses de l’Université du Québec, forthcoming).

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to ­judges to determine via their enormous powers of discretion. The fact that wishes are regularly overridden by other factors is outlined in detail in Chapter 5. Another problem is that the items on the lists – needs, characteristics, stability and so on – may seem obvious and straightforward, but in reality they are complex, little-understood and ideological. The value placed on ‘stability’, for example, raises questions about how long authorities should let children remain residing in harmful households, or how long distressing contact visits should be enforced before it should be accepted that they are more harmful than beneficial for a child.147 Questions about what children’s ‘needs’ are include whether relationships with domestically violent fathers should be retained.148 Unfortunately, checklists do not do a whole lot to assist in resolving such issues – answers will generally depend on a judge’s beliefs about the importance of contact.149 The submissions of experts will also play a role in the beliefs of the judges.150 Canadian research indicates that “their opinions may substantially influence the ultimate outcomes of custody cases”.151 The professional opinions of these experts will however overlap significantly with their personal opinions on issues which are unresolved in the research and literature, such as the acceptability of courts ordering overnight paternal visits for infants, away from their primary carer mother.152 In such instances the determination of the best interest of the child becomes little more than a guessing game; one in which the outcome is heavily determined by the values and beliefs of the ­power-holders (politicians, policy-makers, judges and ‘experts’).153 This is to be 147 Fiona Kelly, “Enforcing a Parent/Child Relationship At All Cost? Supervised Access Orders in the Canadian Courts” 49 Osgoode Hall Law Journal 277 (2011–2012), at 309. 148 See further l.v.m.h. [2000] 2 flr 334; Barnett, note 137 and Rosemary Hunter and Adrienne Barnett, Fact-Finding Hearings and the Implementation of the President’s Practice Direction: Residence and Contact Orders: Domestic Violence and Harm: A Report to the Family Justice Council (Family Justice Council Domestic Abuse Committee, January 2013). 149 See further Felicity Kaganas, “Regulating Emotion: Judging Contact Disputes” 23 Child and Family Law Quarterly 63 (2011). 150 Godbout, Parent, and Saint-Jacques, note 146, at 276. 151 See Godbout, Parent, and Saint-Jacques, ibid. 152 Ibid. See further consideration of the controversy around this issue at: http://www.abc .net.au/radionational/programs/lawreport/controversy-brews-over-social-science, -fathers-and-family-law/5568852 (last accessed 5 Apr. 2017). 153 In Re S. in which the expert, psychiatrist Dr Weir, had given testimony on the ostensible ‘alienation’ of the child from his father, the court noted that counsel for the local authority had described the expert as “evangelist for the concept of alienation”; noting that “[o]ver

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seen, for e­ xample, in the struggle over whether to explicitly include a presumption in favour of contact with both parents in the Children Act 1989 in England and Wales; that is to put a ‘gloss’ on the best interest principle.154 A children’s autonomy principle cannot solve all of these problems, not least because not all children can express wishes in the traditional way. Yet what the children’s autonomy principle can do is ensure that value judgments are mitigated in best interest cases by prioritising a child’s wishes where that child can state them. 4.2 The ‘Science’ of Best Interest Decisions: The Balance Sheet Approach In recent times there has been an attempt to develop more of a ‘scientific’ approach to best interest decisions, such as the ‘balance sheet’ exercise. Is there a possibility that a more scientific approach can benefit children’s autonomy, and therefore do away with the need for a children’s autonomy principle? In England and Wales, in a best interest decision, it is necessary for the court to examine likely outcomes for welfare of the child from every angle, with the aim of choosing the option that appears best for the child.155 In a case concerning a care order, the Court of Appeal in England and Wales explained that:156 The judicial exercise should not be a linear process whereby each option, other than the most draconian, is looked at in isolation and then rejected … the judicial task is to undertake a global, holistic evaluation of each of the options available for the child’s future upbringing before deciding which of those options best meets the duty to afford paramount consideration to the child’s welfare.157

154

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the last few years warning has been given about the need to beware of the over-dogmatic expert.” Paras 44–5: Re S. (A Child) [2010] ewhc B2. See the clash of opinions between the same expert with another in A. (A Child) [2013] ewca Civ 1104, para. 32 who was “highly critical of the opinion advanced by Dr Weir”. See further consideration of alienation in Chapter 5, Section 1.3.3. A “presumption of involvement of both parents” was ultimately included in the amended Children Act 1989 despite almost unanimous resistance from legal commentators. See for example Trinder, note 137; Kaganas note 149; and Sonia Harris-Short, “Resisting the March Towards 50/50 Shared Residence: Rights, Welfare and Equality in Post-Separation Families” 32 Journal of Social Welfare and Family Law 257 (2010). See further Eekelaar, note 122, at 7. A reading of recent case law indicates that the following of the balance sheet approach is evident some children’s cases in England and Wales, but not all. In Eekelaar, ibid, at 8. Re G. [2013] ewca Civ. 965, paras. 49 and 50.

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The court appears to labour the level of detailed examination and thoroughness required, something which is admirable in light of the crucial nature of many of the decisions taken – decisions which concern where a child will live, the nature of their family relationships; decisions which may have consequences for the rest of their lives. Indeed in the 2016 case of H. (Children)158 an appeal was upheld against an adoption order on the basis that, at trial level, the judge did not examine all relevant options before making adoption order. The judge noted that there had been no attempt to identify the pros and cons of making an adoption order or whether the risk of continued serious harm necessitated adoption, and the evaluation conducted was therefore insufficiently “sophisticated”.159 The form which the best interest decision-making exercise has sometimes taken in England and Wales is a “benefit/disadvantages” table, setting out all the pros and cons of the various options under discussion. However the same problem with the best interest decision, and the right to be heard for that matter, arises even with this useful ‘table of options’ approach – it is difficult, if not impossible, to arrive at a truly objective methodology for making decisions where a yes or no answer is sought. In nhs Trust v m.b. (A Child represented by cafcass as Guardian ad litem)160 medical professionals sought to withdraw ventilation from a child, and parents opposed the decision. After considering all of the points put forward by both sides, the judge made the point that “the real dispute [is] how much weight to attach to a particular item.”161 Therefore, even with a detailed examination of both sides of the dispute (if there are only two), judgments will still likely be based on subjective views, and lacking in transparency and consistency.162 At least the balance sheet approach has the benefit, however, of compelling courts to explicitly consider all sides, even if ultimately the ‘weighing’ cannot be described as ‘scientific’; and therefore cannot be said to be truly transparent, because it still involves a large degree of discretion. This is very relevant for the position of children’s wishes in the best interest decision-making process. If a balance sheet-type approach is taken, even if it is not very scientific (in that it still involves a large degree of discretion),163 the 158 [2016] ewca Civ 1131. 159 Paras 80–1. 160 [2006] ewhc 1031, para. 59. 161 Ibid., para. 59. 162 See also Re A. (A Child) [2014] ewhc 920. 163 In nhs Trust v m.b. the judge stated that “[i]t is impossible to put a mathematical or any other value on the benefits” nhs Trust v m.b. (A Child Represented by cafcass as G ­ uardian ad litem) [2006] ewhc 1031, para. 64.

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great benefit for children’s autonomy is that there is an expectation that judges must explicitly consider and explain where children’s wishes sit in that weighing process.164 Therefore, although the best interest principle poses many challenges for children’s autonomy, reframing the question can ensure that, when the best interest principle is applied, children’s autonomy is explicitly considered. What I am ultimately advocating in this book, however, is that there be an extra step taken beyond the balance sheet approach – that children’s wishes are the placed at the top of this list of factors, and followed unless it is likely that significant harm will arise from their wishes. This would mitigate the risks to children’s autonomy posed by the persisting discretion of the balance sheet approach. 5

The Interests of Which Children?

What Priority for the Best Interests of a Child, or for a Group of Children? As noted in Chapter 1, it has not always been made clear enough, either via the crc or at domestic level, that decisions where children’s best interests are the determining factor, as opposed to a factor, are quite different.165 This has likely contributed to the lack of influence of the right to be heard; resulting in the position of children’s wishes in such decisions remaining as ill-defined as the best interest principle itself. If the extent to which the best interest of the child is to influence the case is not clear, then likewise there will be vagueness about where the wishes of the child should sit. It is important to examine in some more detail the consequences of the (primarily two) different types of proceedings, and what can be achieved for children through a children’s autonomy principle. Being explicit about the differences can boost children’s rights in both types of proceedings. A key component of the argument in this book is that best interest proceedings determining a matter in which the interests of the child is the primary consideration are particularly important to scrutinise from the perspective 5.1

164 As noted in Chapter 1 the Committee on the Rights of the Child has stressed that Article 12 should be interpreted to include an obligation on decision-makers to be explicit about the position of children’s views in a decision, but as outlined in Chapters 4 and 5 this frequently does not happen in practice. 165 See further Chapter 1, Section 2.2.

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of the child’s autonomy.166 This is for a number of reasons – such decisions, unlike those concerning criminal or immigration law, for example, are being taken because the individual is a child. They are decisions which adults would make themselves, such as where a person will live and the relationships which they will have. This involves a substitute decision on behalf of the child, and the focus therefore should solely be on the interests of the individual child. The wishes of that child should take a place of great prominence in all proceedings concerning children of course, but in these proceedings, they should be the most important factor. If paternalism is to be imposed on children in the legal arena on the basis that they are children, then it should only be imposed to the extent necessary. The best interest principle is relevant beyond solely proceedings however, and it is useful to briefly consider what those contexts may be. crc Article 3 requires that all actions concerning children (not just proceedings) must be taken on the understanding that the best interests of the child is to be considered “a primary consideration.” In General Comment No. 14 (2013) the Committee on the Rights of the Child notes that such actions will include: [F]irst of all … measures and decisions directly concerning a child, children as a group or children in general, and secondly, to other measures that have an effect on an individual child, children as a group or children in general, even if they are not the direct targets of the measure.167 There are at least five types of ‘decisions’ (as distinct from proceedings) of authorities which require consideration of the best interest of the child or children, that is decisions involving: 1. 2. 3.

The best interests of an individual child as the primary consideration, for example contact, residence and adoption cases. The best interests of an individual child as a primary consideration amongst other factors such as national security, for example immigration and criminal cases. The best interests of children generally, possibly pitting them against those of individual children, as for example the conflict inherent in cases

166 See further Chapter 1, Section 2.2. 167 Committee on the Rights of the Child, General Comment No. 14, note 63, para. 19(2). Emphasis added.

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under the Hague Convention on International Child Abduction (where a quick return is considered to be the priority).168 The best interests of children generally as the primary consideration in a policy or legal decision specifically concerning children (as a group), for example on education. The best interests of children generally as a primary consideration, considered together with the interests of all members of the public, for example in public planning and budgetary decisions.

This book is primarily concerned with decisions under the first heading for the reasons outlined above – we must acknowledge that such cases essentially involve substitute decisions on behalf of children.169 Items 2–5 on the other hand are not. Consideration of children’s best interests and wishes are of course crucial in cases concerning children as a group170 and in public policy-making.171 168 In cases under the Hague Convention on International Child Abduction (1980) individual decisions are not decided in accordance with the principle of the best interest of the child as the primary consideration, as it is assumed that a swift return to the country from which they have been taken is in the best interests of children generally. See below at Section 5.3. 169 It is important to also examine cases under the Hague Convention on International Child Abduction (point 3 above) however, not least because the outcomes of many Hague Convention cases turn on children’s wishes. See discussion below at Section 5.4. There is a possibility under Article 13 of the Hague Convention of overriding the presumption in favour of return of children in these cases to the country from which they have been taken on the basis of the objection of the child to return. The wishes of the child arise very regularly in these cases therefore, and the international element to these cases often mean that children will be heard and even have their own representation to a greater extent than in domestic cases. 170 See for example South African case Government of the Republic of South Africa and Ors v Grootboom and Ors 2000 (11) bclr 1169. See further Aoife Nolan, Children’s Socio-­Economic Rights, Democracy and the Courts (Bloomsbury, 2011) and Patrick Geary, Children’s Rights: A Guide to Strategic Litigation (Child Rights Information Network 2009). 171 See for example Shirley Martin et al., An Examination of Children and Young People’s Views on the Impact of their Participation in Decision-Making (Department of Children and Youth Affairs [Ireland], 2015); Ciara Davey, Tom Burke and Catherine Shaw, Children’s Participation in Decision-Making: A Children’s Views Report (Children’s Commissioner [England and Wales], 2010); Glenda Mac Naughton, Patrick Hughes, Kylie Smith, eds, Young Children as Active Citizens: Principles, Policies and Pedagogies (Cambridge Scholars Press, 2008); Gerison Lansdown, Promoting Children’s Participation in Democratic DecisionMaking (Unicef, 2001). On the very important Wales ‘measure’, which requires decisionmakers to consider the best interests of children as a group, see unicef uk, Briefing: A Duty to have Due Regard to the un Convention on the Rights of the Child (unicef uk, 2012).

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Their best interests and wishes are frequently given insufficient attention in such proceedings. However these areas will not be considered in this book as they are largely outside the scope of the argument proposed within it – that is that when decisions are taken by courts on behalf of children on personal matters on which adults would decide for themselves, children’s autonomy should be prioritised. Cases in which children’s best interests are a rather than the primary consideration (see point 2 above) will be briefly considered here, to clarify the difference between the two types of decisions, and to suggest how the children’s autonomy principle can be applied in such decisions to a certain degree at least,172 though the rest of this book will be concerned only with decisions falling under point 1, which will be referred to as ‘best interest decisions’. The Best Interests of the Child in Criminal and Immigration Law: Room for Autonomy? Point 2 above concerns cases and decisions where an individual child’s best interests are a primary consideration amongst other factors like national immigration policies and public safety, for example in immigration and criminal cases.173 The position of the best interest principle in such decisions is highly contested. In a case in England and Wales concerning immigration, z.h. (Tanzania) v sshd,174 the Court contrasted “decisions which directly affect the child’s upbringing, such as the parent or other person with whom she is to live, and decisions which may affect her more indirectly, such as decisions about where one or both of her parents are to live.”175 A child may not be the “direct target”176 (in the words of General Comment No 14 [2013]) of an action concerning the immigration status of her and her family. Yet her best interests will have to be 5.2

For examination of a similar measure in Flanders, Belgium, see Ellen Desmet, Hanne Op de Beeck and Wouter Vandenhole, “Walking a Tightrope: Evaluating the Child and Youth Impact Report in Flanders” 22 International Journal of Children’s Rights 78 (2015). See also Rachel Taylor, “Putting Children First? Children’s Interests as a Primary Consideration in Public Law” 28 Child and Family Law Quarterly 45 (2016), at 49. 172 If only these cases would hold children’s best interests as the primary consideration, then the children’s autonomy principle could be applied in an identical way. 173 Other decisions such as those concerning school places and criminal cases where children are victims or witnesses could likewise fall under this heading. 174 [2011] uksc 4. 175 z.h. (Tanzania) v sshd [2011] uksc 4, at 26. 176 Committee on the Rights of the Child, General Comment No. 14, note 63, para. 19(2).

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given weight.177 As highlighted in z.h. (Tanzania) the relevant domestic ­legislation – Section 55 of the Borders, Citizenship and Immigration Act 2009 – provides that, in immigration decisions, functions must be “discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom.”178 It is highly questionable whether a decision concerning parents’ residence affects a child ‘indirectly’ as implied in z.h. (Tanzania),179 particularly where it concerns the child’s residence also. Nevertheless the reality, whether one agrees with it or not, is that the child’s best interest is considered as a rather than the primary consideration in such cases. Eekelaar suggests that in such cases the decision-maker should attempt to reach the ‘best’ solution to the issue. Whilst the purpose of proceedings is not to decide what is best for the child Eekelaar continues, the child’s interests must be weighed alongside other relevant matters, although other matters, such as national security, may also be considered ‘primary’ factors. There can be more than one primary consideration which must remain in the forefront of the minds of the decision-makers. He continues that “if the ‘best’ solution to the issue in question is considered to have a sufficiently detrimental effect on the child’s interests, it may need to be modified or even abandoned.”180 This is a useful guiding principle – if children’s interests are sufficiently harmed by a particular outcome in such a decision-making process, then that option cannot be chosen. So where does the children’s autonomy principle potentially fit in this area? It cannot be applied in an identical way in criminal and immigration law without dramatic changes to the way in which those proceedings work in most countries at present, changes which appear starkly contrary to political will. Decisions in criminal and immigration law tend not to apply the best interest of the child as the primary consideration.181 That is not to say, however, 177 Taylor points to the possibilities and the challenges in this regard: ‘[A]n obligation on public decision-makers to consider the interests of children can, if applied in the right way, have a significant positive impact on outcomes for affected children and can do so in a way that not only respects but also improves administrative discretion. The uncertainty as to the proper basis and interpretation of that obligation is problematic for both children and decision-makers.’ Rachel Taylor, “Putting Children First? Children’s Interests as a Primary Consideration in Public Law” 28 Child and Family Law Quarterly 45 (2016), at 47. 178 z.h. (Tanzania) v sshd [2011] uksc 4, at 23. 179 [2011] uksc 4, at 26. 180 Eekelaar, note 122, at 5. Emphasis added. 181 There are, happily, some exceptions to this across the world. See South Africa case Raduvha v Minister of Safety and Security and Another (CCT151/15) [2016] zacc 24 considered at

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that children’s autonomy is not hugely important in such cases, particularly because children’s wishes will most likely logically be in favour of where their best interests lie, for example to avoid deportation or prison. Children’s wishes should of course be crucial to outcomes and solutions in such cases.182 Unfortunately in reality they all too often are ignored.183 The children’s autonomy principle could, however, be applied and upheld to the extent possible in the best interest determination in such cases, as outlined in the diagram below. In a given case, the question must be asked: Does this case fall into the category of proceedings in which the best interest of the child is a primary consideration (for example contact or residence cases – Type A) or the primary consideration (for example immigration or criminal law cases – Type B)? In Type A proceedings, the best interest of the child determines the case, and the children’s autonomy principle should be applied in that determination. In Type B proceedings, the best interest of the child should still be determined in the same way (that is, with autonomy as a priority).184 The ‘best’ note 101. Furthermore, the overriding principle in youth justice in Sweden is that relevant interventions should be based on the needs of the child involved, rather than the crime. See Youth Justice Board [England and Wales], Cross-National Comparison of Youth Justice (Youth Justice Board, 2008). In the Bahamas, too, it seems that children will only be incarcerated where it is absolutely necessary for the safety of themselves or others. See Rashad Rolle, “Ruling Could Stop Children Going To Jail” Tribune 242 (6 Sep. 2016). Available at http://www.tribune242.com/news/2016/sep/06/ruling-could-stop-children-going-jail/ (last accessed 26 Nov 2016). 182 For consideration of the enormous importance of children’s views, wishes, autonomy and participation in cases concerning immigration, criminal law and crimes against children and/or child witnesses see for example Defence for Children International, Children’s Right to Participation and the Juvenile Justice System (Defence for Children International, 2016); Stephanie Rap, “A Children’s Rights Perspective on the Participation of Juvenile ­Defendants in the Youth Court” 24 International Journal of Children’s Rights 93 (2016); Kristin Henning, “Denial of the Child’s Right to Counsel, Voice, and Participation in Juvenile Delinquency Proceedings” 89 Child Welfare 121 (2010); Mark Evenhuis, “Child-Proofing Asylum: Separated Children and Refugee Decision Making in Australia” 25 International Journal of Refugee Law 535 (2013). 183 See for example Sandberg’s outlining of Norway asylum case RT-2012-1985 in which the Supreme Court held that, as it had already been found to be in the children’s best interest to stay in the country (though a decision to deport was made nonetheless), it was not a procedural error to fail to hear the views of the eldest child. Kirsten Sandberg, “The Role of National Courts in Promoting Children’s Rights: The Case of Norway” 22 International Journal of Children’s Rights 1 (2014). 184 Children’s wishes as to how they participate could and should also be determined by the children’s autonomy principle in such cases. See ‘ideal’ Article 12(2)(d), Chapter 1, Section 8.2.

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outcome overall would then be determined in light of other factors, for example state interests (step 2). In these proceedings, it should also be considered whether the ‘best’ option – in light of weighing all factors – sufficiently harms a child’s interests (step 3), as recommended by Eekelaar. If a particular outcome is sufficiently detrimental to a child’s interests,185 it cannot be followed and another option must be chosen. In cases in which the best interests of the child is a primary consideration, then, the children’s autonomy principle can only influence proceedings and outcomes to the extent permitted by the fact that the best interests of the child may or may not be the determining factor. The notion of autonomy could of course be used as a tool to strengthen best interest arguments. As outlined in Chapter 3, autonomy is inherently important for well-being.186 It could be argued that to override a child’s wishes in a particular case would be so harmful that it would result in an outcome sufficiently detrimental to a child’s interests. The possibilities presented by this point require further research. Types of Proceedings Affecting Individual Child TYPE A. Proceedings where child’s best interests THE primary consideration e.g. contact and residence cases

Determine best interest of the child (BIC) with autonomy a priority

TYPE B. Proceedings where child’s best interests A primary consideration e.g. immigration and criminal law cases

STEP 1: Determine BIC with autonomy a priority STEP 2: Consider other factors, determine ‘best’ outcome

STEP 3: Consider: Does the ‘best’ outcome have a sufficiently detrimental effect on the child’s interests (Eekelaar 2015) – including autonomy interests? Outcome of case in accordance with principle of BIC with autonomy a priority

185 Eekelaar, note 122, at 5. 186 See Chapter 3, Section 2.

Outcome in accordance with BIC (with autonomy a priority) and other relevant factors

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The Interests of an Individual Child Versus Those of the Group: The Hague Convention on International Child Abduction Another set of proceedings which does not fit neatly into the ‘best interest ­decision’ category are those taken under the Hague Convention on International Child Abduction. The primary aim of this instrument is the swift ­return of the child. This provides an intriguing dilemma; in many instances positioning the best interests of an individual child against those of children as a group. The Hague Convention aims to secure the return of children taken from a country of “habitual residence”187 where a parent has “custody or access rights”188 in order to ensure that any parental disputes are heard in that ­country. The courts of the country to which the child has been taken should hear a case within six weeks189 once proceedings are initiated by the “left behind”190 parent (although expediency often does not occur in practice191) and courts order the return of the child in all but the rarest of cases.192 The best interests of the individual child – that is whether it is in fact best for the individual child to be returned – is not to be considered by the courts in the country to which the child has been taken, although there are some exceptions to immediate return. These are cases where proceedings have commenced after the expiration of a period of one year, and “it is demonstrated that the child is now settled in its new environment”;193 where there is a grave risk of harm should the child be returned194 (this must be extreme)195 5.3

187 188 189 190 191 192 193

194 195

That is, the country from which the child has been removed. Article 4. Article 11. See further Rhona Schuz, The Hague Child Abduction Convention: A Critical Analysis (Hart, 2014). Aoife Daly, “Considered or Merely Heard? The Views of Young Children in Hague Convention Cases in Ireland” 12 Irish Journal of Family Law 16 (2009). See for example Reunite, Outcomes for Children Returned Following an Abduction (Reunite, 2003), at 47. Hague Convention, Article 12. See for example P. v B. [1999] iesc 326, and Re N. (Minors) (Abduction) [1991] 1 flr 413. Beaumount and McEleavy hold that the case law on the ­matter creates an impression of “strict interpretation”. Paul Beaumount and Peter ­McEleavy, Hague Convention on International Child Abduction (Oxford University Press, 1999), at 206. Hague Convention, Article 13. Invoking the defence of grave risk places a significant burden of proof on the party raising it and has proven to be a rare exception to the obligation to return children wrongfully removed. See us Court of Appeals for the 6th Circuit in Friedrich v Friedrich 78 F 3d 1060; ca, (6th Cir, 1996). In the Irish context see for example B. v B. [1998] 1 ir 299.

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and/or where a child is of the appropriate age and maturity and objects to return.196 Courts cannot engage in a wider welfare inquiry,197 but an aim of the Convention is to protect the interests of children generally by discouraging abduction.198 Also relevant is that the exceptions to the presumption of return of the abducted child are mindful of the need to consider the best interests of a particular child where particularly necessary.199 Nonetheless, Hague Convention judgments are often more about technical issues than the interests of the children about whose lives very significant determinations are being made. Although there is a strong argument to be made that unlawful removal by parents must be discouraged, as this will benefit children generally,200 the approach of the Hague Convention is highly questionable. The fact that the risk of harm to children must be extreme in order to displace the presumption in favour of return, for example, is in distinct contrast to the enormous emphasis of the courts on children’s best interests in parental disputes more generally. This discrepancy becomes even more pertinent when children have wishes (sometimes very strong wishes) against return. Recent years have seen much contestation over the degree to which courts can override the p ­ resumption in favour of return.201 But it is safe to say that the interests – and wishes – of individual children are regularly overridden in order to achieve the primary goal of the Hague Convention. For example in the Irish context, a clear pattern of orders to return children under the age of 11 years, despite their strong and well-founded wishes, has been documented.202 Considering the fact that ­internationally approximately 70% of abductions are by primary carer mothers and a large percentage of these cases involve violence against those mothers,203 196 197 198 199 200

Article 13. See for example Irish case f.l. v c.l. [2006] iehc 66, at 20. Pérez-Vera note 121, para. 16–25. Ibid. Lyons argues against the point that it is acceptable to expect individual children to sacrifice their best interests for the sake of duty to others. Barry Lyons, “Obliging Children” 19 Medical Law Review 55 (2011). 201 See for example Neulinger v Switzerland (2012) 54 ehrr 31 and Re E. (Children) [2011] uksc 27. 202 I identified in particular in 2009 a pattern in the Irish context cases of orders for return of children under 11 years against their wishes, see for example R. v R. [2008] iehc 162, D. v D. [2008] iehc 176 and K. v K. [2006] iehc 277. Daly note 191. 203 See for example Shani King, “Hague Convention and Domestic Violence: Proposals for Balancing the Policies of Discouraging Child Abduction and Protecting Children from Domestic Violence” 47 Family Law Quarterly 299 (2013); Michael Salter, “Getting Hagued:

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the best interest of the individual child warrants greater attention than the Hague Convention currently supports. Hague Convention cases will be considered in this book, although such cases do not technically involve ‘best interest decisions’ (because the best interest of the child in these cases, for better or worse, is not the primary consideration). The use of such cases in this inquiry is justifiable because the Article 13 defences permit an examination of the child’s welfare to some extent, and judges have significant discretion in how they treat children’s wishes in that context. Therefore Hague Convention cases are ‘best interests’ decisions of sorts, and they can provide important insights into the treatment of children’s wishes to a far greater extent than other family law cases where children are less likely to be heard. The rate at which children are heard in such cases is greatly bolstered by the enactment of Council Regulation (ec) 2201/2003,204 which requires that children are heard in relation to Hague Convention proceedings (unless this appears inappropriate having regard to the age or maturity of the child) in eu countries. This constitutes a presumption in the eu in favour of hearing children in Hague Convention cases, rather than merely according the judge discretion to consider children’s views, as is the case under the Hague Convention itself.205 Finally, and importantly, it is justifiable to consider Hague Convention cases in this book because these cases are made about children because they are children. The cases may not be determined on the basis of the best interest of the child as the primary consideration, yet they are very much decisions which children would make for themselves if adults.

The Impact of International Law on Child Abduction by Protective Mothers” 39 Alternative Law Journal 19 (2014); Taryn Lindhorst and Jeffrey Edleson, Battered Women, Their Children, and International Law: The Unintended Consequences of the Hague Abduction Convention (Northeastern University Press, 2012); Nigel Lowe, A Statistical Analysis of Applications Made in 2008 Under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (hcch, 2011); hcch, Hague Conference on Private International Law, Collated Responses to the Questionnaire Concerning the Practical Operation of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (hcch, Oct. 2006), at 309–19. 204 Council Regulation (ec) 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (ec) No 1347/2000. 205 It must be noted however that research in 2015 across five European countries found that very few children were being heard in such cases. Paula Beaumont, Lara Walker, Jane Holliday, “Not Heard and Not Returned: The Reality of Article 11(8) Proceedings” 2 International Family Law 124 (2015).

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It is beyond the scope of the book to examine the controversy of the Hague Convention’s position on the best interests of the individual child versus those of children generally. However the cases considered here will be analysed with this issue in mind. The dilemma is highly relevant to the approach of courts to the wishes of children in these cases, as the best interest of the child is not the primary consideration, and therefore the views of the child are to a large degree only relevant in such cases to the extent that the exceptions to the presumption in favour of return are relevant. I accept that judges are bound in these cases to apply Hague Convention principles and the treatment of children’s autonomy in such cases is not identical to the approach in the average family law case. Children face an even greater obstacle for vindication of their wishes compared to average family law cases, since the presumption in favour of return is so strong.206

Concluding Thoughts on Autonomy in the Context of the Best Interest Principle

The best interest principle, as paternalistic as it is, is justifiable and desirable for children’s rights to an extent, because it ensures that, where decisions are being taken on children’s behalf, it is the interests of the child, rather than those of others such as parents, which should determine the issue. The point being emphasised in this book is that although the best interest principle is justifiable, the right to be heard does not do enough to ensure that children, particularly those with preferences, have their autonomy respected within the best interest determination exercise. The rights framework, whilst providing the potential for achieving the correct balance in best interest proceedings between children’s protection and children’s involvement, has not yet been successful. It is outlined in the next chapter that it is all too easy for adults to decide that somebody lacks capacity and to consequently override the wishes of children in proceedings concerning them. An approach is required which enquires as to whether paternalism is actually warranted. This would be a more rights-based approach to best interest proceedings for children. This approach would also 206 It is unsurprising that in light of this “some courts and policy makers have struggled to achieve an appropriate balance between furthering the interests of children in general and protecting the interests of individual abducted children.” Peter McEleavy, “The European Court of Human Rights and the Hague Child Abduction Convention: Prioritising Return or Reflection?” 62 Netherland International Law Review 365 (2015), at 375.

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go a long way towards mitigating the major challenge for children’s autonomy identified in this chapter – the best interest principle is indeterminate and it imposes societal prejudices which leaves much room for overriding children’s wishes. At least if the wishes of the child herself were the most important factor in such decisions, adequate justification would be necessary for overriding them. There have been some efforts to make the best interest determination ­exercise more scientific, such as the balance sheet approach, which requires a comparison of all the relevant options and acknowledgement of the position of all parties. This is positive as it theoretically requires acknowledgement of children’s wishes. However this exercise – which treats all factors as equal until otherwise proven – suffers from the same failing inherent in the best interest principle: There is no guidance as to which factor is to be prioritised, and therefore the judge’s (and society’s) subjective values will likely have undue influence. A children’s autonomy principle would ensure more genuinely that the position of the child comes first. Autonomy is also a subjective value to some degree of course. But not only is it linked with well-being, it is also the quality which is prioritised above all others in liberal democracies. Children deserve priority for their autonomy as adults do, even if it cannot be upheld as often. It is important to achieve greater differentiation between decisions in which the best interest of the child is a primary consideration, and decisions in which it is the primary consideration, as is usually the case in criminal and immigration law. This is not because the latter are less important, but the lack of distinction between the two has obscured the fact that decisions in which the best interest of the child is the primary consideration is a substitute decision being taken on behalf of the child because she is a child. The fact that the right to make one’s own decisions are being taken from children in best interest proceedings means that children’s wishes should determine the process and outcome of these cases unless this is genuinely not possible. This can be achieved through the children’s autonomy principle. In cases in which the best interest of the child is a primary consideration, the children’s autonomy principle could, and should, be applied when determining the best interest of the child. As the next step involves weighing the best interest of the child against other factors, the wishes of the child will only be relevant insofar as the best interest principle is. However it could be argued in a given case in the area of criminal and immigration law that considering the importance of autonomy, the child’s wishes (as they have been included in the best interest determination) should determine the outcome of the case. It could be argued that a decision against the wishes of the child will harm

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that child’s autonomy and therefore harm their wellbeing. This point requires further research. It has been established that there is a need for greater prioritisation of children’s autonomy in best interest decisions (Chapter 2), and that the ‘right to be heard’ is not adequate for this task (Chapter 1). The concept of ‘autonomy’, and its importance to our wellbeing, will be examined in detail in the next chapter, and particularly how our understanding of autonomy needs to accommodate the context of the individual – their relationships, support and so on. Medical law will be drawn upon to highlight that the boundaries between adulthood and childhood, and between capacity and incapacity, are more fluid than we often assume. This point prompts detailed consideration in Chapter 6 of the argument that, when deciding whether to hold a child wishes as determinative, we should focus on the risk of harm to children arising from their wishes, rather than whether children have sufficient ‘capacity’.

chapter 3

The ‘Liberal Ideal’: Autonomy, Capacity and the Adult/Child Divide A child can feel very small and lost in such a drastic situation. They can feel that they have no power at all and no one wants to pay any attention to their views or wishes.1

∵ Introduction A ‘right to be heard’ has not sufficiently benefitted children in ‘best interest decisions’, such as decisions concerning where children will live on divorce. I am proposing therefore that a ‘children’s autonomy principle’ should instead be adopted whereby children should get to choose – if they wish – how they are involved (process autonomy) and the outcome (outcome autonomy) unless it is likely that significant harm will arise from their wishes. The concept of autonomy – its meaning and value, its relationship to ‘capacity’ and its application in (primarily medical) law – is examined in this chapter. Autonomy (the ideal that we should all have personal freedom in our lives to the extent possible) is the most valued characteristic for the individual in a liberal democracy.2 This is grounded in sound logic – autonomy is inherently good for individuals, who deeply value having a feeling of control over their own destinies.3 There are laws upholding autonomy and social policies based 1 Twenty one year old young lady speaking about child inclusion in family court proceedings quoted in Jennifer McIntosh, “Four Young People Speak about Children’s Involvement in Family Court Matters” 15 Journal of Family Studies 98 (2009), at 102. 2 See for example Marina Oshana, “A Commitment to Autonomy Is a Commitment to Feminism” in Andrea Veltman and Mark Piper, eds, Autonomy, Oppression, and Gender (Oxford University Press, 2014), at 214. 3 See for example John Mark Froiland, “Parents’ Weekly Descriptions of Autonomy Supportive Communication: Promoting Children’s Motivation to Learn and Positive Emotions” 24 Journal of Child and Family Studies 117 (2015); Edward Deci and Richard Ryan, “Autonomy and Need Satisfaction in Close Relationships: Relationships Motivation Theory” in

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around it. Yet essentially autonomy is just an ideal. No-one is truly a­ utonomous – our well-being is grounded in our relationships with those around us, and we are all constrained in our autonomy by factors such as ­finances and abilities. Autonomy, therefore, is neither absolute for adults nor children in reality. Nevertheless in legal terms it is assumed that adults are autonomous and that children are not – standards such as legal minimum ages create and reinforce this situation. On this basis it is assumed that under-18s do not have the cognitive capacity4 to make decisions, though the reality of the human condition indicates otherwise – children are often capable and adults are often vulnerable. Children’s autonomy has been taken most seriously in medical law – touching without consent is considered serious even for children.5 Medical law cases in which children’s treatment must be determined constitute ‘best interest decisions’ in the sense that the court tries to determine what is in the best interest of the child and the outcome is dictated by this. Yet, in contrast to practice in family law, ‘best interest decisions’ in medical law children’s autonomy is in fact often to the forefront of the decision-making process. This fact highlights the unjustifiability of the autonomy denial evident in other ‘best interest’ cases (most of which lie within family law). It also provides extensive opportunities for analysis as children’s ‘capacity’, in the sense of a legal standard of m ­ ental capacity, is given serious consideration in medical law cases in a way that it is not elsewhere. Nevertheless, the search for children’s ‘capacity’ – often based on the notion of ‘­Gillick ­competence’6 – demonstrates that few seem to actually understand what ‘­capacity’ or ‘competence’ entails, and how children’s choices should be treated in life and death cases is highly contested.7

4 5 6 7

Netta Weinstein, ed, Human Motivation and Interpersonal Relationships (Springer, 2014); Edward Deci and Richard Ryan, “The ‘What’ and ‘Why’ of Goal Pursuits: Human Needs and the Self-Determination of Behavio[u]r” 11 Psychological Inquiry 227 (2000); Edward Deci and Richard Ryan, “Human Autonomy: The Basis for True Self-Esteem” in Michael Kernis, ed, Efficacy, Agency, and Self-Esteem (Plenum, 1995). Cognition involves mental processes such as knowing, judging and evaluating. Priscilla Alderson, “Researching Children’s Rights to Integrity” in Berry Mayall, ed, Children’s Childhoods: Observed and Experienced (The Falmer Press, 1994), at 46. See below Section 6. See for example Stephen Gilmore and Jonathan Herring, “‘No’ is the Hardest Word: Consent and Children’s Autonomy” 23 Child and Family Law Quarterly 3 (2011) and Emma Cave and Julie Wallbank, “Minors’ Capacity to Refuse Treatment: A Reply to Gilmore and Herring” 20 Medical Law Review 423 (2012).

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The approach to children in the medical law arena points to two main findings which can be applied to legal issues more broadly.8 First, children are treated with much more respect as autonomous individuals, and the contrast with other best interest decisions is stark, illogical and unfair. In family law, courts often fail to even explicitly weigh children’s wishes against other factors, let alone go to the trouble of using standardised tests of children’s capacity (now being developed for children in medical law). The second point is that the preoccupation with children’s capacity in medical law is really problematic (the notion is vague and subjective for example), and undue emphasis should not be placed on this factor in best interest decisions more broadly. In fact the problematic focus on capacity in medical law reinforces the approach advocated in this book for best interest decisions – a presumption in favour of children’s wishes, to be rebutted only where it is likely that significant harm will arise from those wishes. Factors such as whether a child is ‘Gillick competent’ could of course be considered by courts as part of this approach, without defining the approach.9 This chapter examines the nature of autonomy, the simultaneous veneration and scepticism which the concept attracts, and the relative exclusion of childhood from its reach. The fundamental importance of autonomy to the well-being of individuals is considered. In light of this importance, it is asked, how can children’s rights be positioned so that children are not unjustifiably excluded from the benefits of autonomy prioritisation? The question of whether and when children have the ‘capacity’ to make decisions is considered. The meaning and relevance of capacity in the rhetorical sense and as a legal standard is analysed. It is concluded that autonomy is of crucial importance to well-being, but it is limited for everyone. Children are limited by their capacities and their circumstances (family, economic and so on) but so are adults. Medical law demonstrates the problems associated with relying on capacity as a measure of autonomy, and there are increasing calls to recognise that even adults with capacity may occasionally require overriding by courts of personal autonomy for their own protection. The approach to children’s 8 There are many ways in which the approach to children’s autonomy in medical law should be improved – others have considered this at length. See for example Emma Cave, “Goodbye Gillick? Identifying and Resolving Problems with the Concept of Child Competence” 34 Legal Studies 103 (2014) and Robin Mackenzie and John Watts, “Is Childhood a Disability? Using Mental Capacity Tribunals and the Deprivation of Liberty Safeguards to Shield Children’s Capacity to Consent to and Refuse Medical Treatment” 19 Tizard Learning Disability Review 96 (2014). 9 The specifics of such an approach are considered in detail in Chapter 6.

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decision-­making abilities in medical law is even more fraught, but at least the matter is taken seriously. The influence of developmental psychology on our assumptions about children’s decision-making abilities is examined, as is the importance of environment and support to how ‘capable’ children are. We know so little about capacity, it is concluded, that this factor should not determine when courts override children’s autonomy. The focus should instead be on whether there is a genuine need for overriding a child’s wishes. 1

Introducing Autonomy

1.1 The Importance of Autonomy in the Liberal Democracy ‘Autonomy’ is probably the best term to encapsulate the quality most valued in liberal democracies.10 The individual is the basis of the liberal society, and it is assumed that individuals are autonomous, self-interested and rational11 with the capacity to live their lives according to their own motives rather than being subject to manipulative external forces.12 The ultimate manifestation of this norm is ‘legal autonomy’ – a legal right to autonomy is enshrined in constitutional principles and in the tradition of common law.13 In liberal democracies, we are all permitted to define what constitutes a ‘good life’, and to live accordingly, as long as we do not harm others. It does not matter whether our decisions are “rational, irrational, unknown, or non-existent.”14 The law provides legal tools to us as independent legal individuals to maintain our autonomous 10

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Beever and Morar refer to “the liberal self-rule ethos prevalent in Western culture”. Jonathan Beever and Nicolae Morar, “The Porosity of Autonomy: Social and Biological Constitution of the Patient in Biomedicine” 16 The American Journal of Bioethics 34 (2016), at 34. Anna Scales, Legal Feminism: Activism, Lawyering and Legal Theory (New York University Press, 2006), at 64. Cited in Rosemary Hunter, “Contesting the Dominant Paradigm: Feminist Critiques of Liberal Legalism” in Vanessa Munro and Margaret Davies, eds, The Ashgate Research Companion to Feminist Legal Theory (Ashgate, 2013), at 13. Onora O’Neill, Autonomy and Trust in Bioethics (Cambridge University Press, 2002), at 17. Oshana, note 2, at 214. See for example Article 12 of the United Nations Convention on the Rights of Persons with Disabilities which provides that “States Parties shall recogni[s]e that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.” At domestic level, see the discussion of the nature of the individualist philosophy of the common law in the England and Wales case Reeves v Commissioner of the Police for the Metropolis [2000] 1 ac 360. Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985] ac 871, at 904–5. See also Re m.b. (An Adult: Medical Treatment) [1997] ewca Civ 1361, [1997] 2 flr 426, para. 17.

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status.15 It ostensibly ensures that free people will be treated equally, their liberty guaranteed against encroachment by government or others.16 The importance placed on autonomy is evident in many aspects of the liberal democracy – in medical ethics, for example, value for the ultimate authority of the individual patient is prevalent.17 In social care, the aim of maximising personal autonomy is characteristically a primary feature of policies and good practice frameworks.18 The international human rights law framework is likewise premised on a global commitment to the prioritisation of the value of the individual, aiming to secure their interests in the face of state power.19 Dignity, a concept intrinsically linked to autonomy, was also a key principle in the establishment of the post-World War ii human rights framework,20 and is included in the crc.21 Dignity has multiple meanings, but most important is the concept that we are human and therefore inherently deserving of dignity.22 Kant argued that because human beings have “an intrinsic worth, i.e., dignity,” this makes us valuable “above all price.”23 Humanity itself is dignity,24 Kant reasoned, human beings can never be instruments, we can never be means to an end, because we are an end in ourselves. Therefore our recognition as inherently valuable, dignified individuals, means that we must be seen as autonomous human beings. To be denied autonomy is to suffer indignity, and this is a

15 16 17 18

Jonathan Herring, Vulnerable Adults and the Law (Oxford University Press, 2016), at 1. Martha Fineman, The Autonomy Myth (The New Press, 2004), at 18. Gerald Dworkin, “Can You Trust Autonomy” 33 The Hastings Center Report 42 (2003). Viv Ashley, “Philosophical Models of Autonomy” Essex Autonomy Project Green Paper Report (Essex Autonomy Project, 2012), at 1. 19 Michael Freeman, “Upholding the Dignity and Best Interest of Children: International Law and the Corporal Punishment of Children” 73 Law and Contemporary Problems 211 (2010), at 215. 20 See further Freeman, ibid, at 215. The Universal Declaration of Human Rights states in Article 1 that: “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience.” 21 The un Declaration on the Rights of the Child, an early children’s rights instrument, also stated that children should be provided opportunities to develop “in conditions of freedom and dignity.” un Declaration on the Rights of the Child, g.a. Res. 1386, u.n. Doc. A/4354 (Nov. 20, 1959). 22 Other elements of dignity are that we respect our own dignity when we act correctly and we may experience a feeling of indignity arising from the behaviour of others. Bernard Baertschi, “Human Dignity as a Component of a Long-Lasting and Widespread Conceptual Construct” 11 Journal of Bioethical Inquiry 201 (2014). 23 Immanuel Kant, Lecture on Ethics ([Cambridge University Press, 1997], 1779). 24 Immanuel Kant, The Metaphysics of Morals (Trans J.W. Semple, 1886).

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crucial reason why, in medical treatment, the autonomy of the patient is taken so seriously.25 Research in the discipline of psychology indicates that there are very firm reasons for prioritising the autonomy of individuals, children included. Feeling control and ownership of our lives and contexts has been shown to be fundamental to our well-being.26 In reality there are exceptions to the rule that the state cannot interfere with our autonomy, for example interference may be necessary to protect others from harm, or cognitive impairment may impede our ability to make decisions about ourselves. There are practical obstacles which mean that we all only enjoy a limited autonomy – our lack of access to finance may prevent us exercising our autonomy to start that business we have been aiming towards. Our lack of physical prowess may prevent us from competing in athletics. An unsupportive family may prevent us from realising our artistic talents. Therefore autonomy is to a great degree just an ideal. We should be able to do what we want, but unfortunately it is sometimes not possible, because we don’t always enjoy the right tools or contexts. There are many who disagree with the priority placed on the principle of respect for autonomy. Some theorists argue that autonomy is overlyindividualistic, and that it ignores the inter-relatedness of our lives.27 The wellbeing of all individuals is inextricably linked to our relationships with others. Some bioethicists argue that autonomy is impractical and unworkable, and that principles such as respect for well-being should be prioritised.28 Yet there remains an assumption that, in general, our autonomy should be respected to the extent possible. Despite the fundamental nature of the notion of autonomy, children do not enjoy acceptance in this framework of understanding. Children’s vulnerabilities, their positioning in the family, the primacy of parents, children’s (perceived) lack of rationality – all of these factors have created a situation where their individuality is strongly resisted. This is why the notion of children’s autonomy is so easily side-lined, and why, for most purposes, their autonomy is not evident in the legal arena. 25

26 27 28

Winik states, for example, that “[a] paternalistic approach that ignores the patient’s wishes and concerns is likely to be perceived as offensive by the patient and an affront to his or her dignity and personhood.” Bruce Winik, “The Right to Refuse Mental Health ­Treatment: A Therapeutic Jurisprudence Analysis” 17 International Journal of Law and P­ sychiatry 99 (1994), at 111. See below Section 3. See below Section 2. See below Section 5.

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1.2 Autonomy and Medical Law The concept of the autonomous individual is prominent across a number of disciplines, featuring strongly in the philosophical, political and legal foundations of liberal democracies. It is in the area of medical law, however, that the legal perimeters of personal autonomy have received most attention. The prominence of the notion of autonomy in medical treatment derives from the idea of the inviolability of physical integrity: “In principle, even touching people without their consent is illegal.”29 The seriousness with which this principle is taken has resulted in even children’s capacities, status and rights receiving unusual levels of attention with unusual levels of specificity in medical law. Questions concerning how to determine children’s capacity to consent, and when refusal to consent should be accepted, have yet to be answered satisfactorily. But the point is that there have been efforts to answer them to a degree perhaps unseen in any other area where children’s autonomy rights are at issue. Most medical treatment is of course uncontroversial, and generally practitioners and patients – children and parents included – work together in harmony. Yet the life and death nature of many of the medical scenarios in the case law makes for compelling reading and dramatic legal determinations where disagreements arise. When adults are, for example, refusing life-saving treatment, we see the most pressing instances in which authorities must determine how far respect for personal autonomy can be taken. It tends to be when individuals make decisions to refuse life-saving medical treatment that authorities’ willingness to uphold personal autonomy is pushed to its limits. Lessons learned from the approach of courts to the autonomy of both adults and children in medical law30 can be compared to the treatment of children’s autonomy in other types of best interest proceedings. The first point is that autonomy is approached with great deference in medical law. The second is that courts sometimes incline towards paternalism in a roundabout way, blurring 29

30

Alderson, note 5, at 46. Munby also points-out that “touching without consent is a battery” James Munby, “Protecting the Rights of Vulnerable and Incapacitous Adults – The Role of the Courts: An Example of Judicial Law Making” 26 Child and Family law Quarterly 64 (2014), at 66. As autonomy has been particularly contested in medical law in England and Wales much of this chapter will focus on this jurisdiction. Alderson notes that the high level of concern with consent is more prevalent in the Anglo-American legal tradition. Priscilla Alderson, “Giving Children’s Views ‘Due Weight’ in Medical Law” International Journal of Children’s Rights (forthcoming 2017).

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the boundaries between capacity and lack of capacity, as well as the boundaries between majority and minority. Case law demonstrates that authorities are in fact willing to override adult autonomy in medical law, even where it appears contrary to statute to do so, in instances where individuals will die due to consent refusal.31 Legal acrobatics are often necessary – it has been argued that courts, in an effort to circumvent this problem, sometimes seize upon the irrationality of a decision to demonstrate incapacity.32 When it comes to those under 18 years, it seems that authorities override wishes with even greater ease than those of adults when a life is at stake, even where it is legally dubious to do so.33 In spite of the fact that courts in reality seem to sometimes override the wishes of adults with capacity, and children’s wishes with even greater ease, it is clear in these types of cases that the courts display a great deal of reverence for children as individual rights-holders. The seriousness with which children’s autonomy is taken in this area of the law is in distinct contrast to other decisions made about children by the courts. In family law cases, for example, courts can typically overrule the wishes of under-18s in their ‘best interests’ with little justification.34 Courts generally do not appear to perceive an obligation to place any particular priority on children’s autonomy in family law. The distinctions or convergences between these areas of law (that is, medical law and other best interest decisions about children) are rarely examined and little understood. There is a glaring contradiction in how issues around children, autonomy and capacity are approached in medical law as compared to other areas. Whether lessons learned in medical law could benefit practice in other best interest decisions will be explored further, after a more general examination of what ‘autonomy’ means, and how it applies to children. 2

What Does ‘Autonomy’ Actually Mean? They still didn’t listen and I started to go down there [to mum’s] ’cos I had to in the end. It was the Saturday that I was supposed to be going down

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34

See for example Charles Foster, Choosing Life, Choosing Death: The Tyranny of Autonomy in Medical Ethics and Law (Hart, 2009). Ibid. See for example Re E. [1993] 1 flr 386 and Re S. [1994] 2 flr 1065 considered further below at Section 6. See also Michael Freeman, “Why It Remains Important to Take Children’s Rights Seriously”15 International Journal of Children’s Rights 5 (2007). See Chapter 5.

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there and I went outside and basically just refused to go down there and I was shaking, trying to say I don’t want to go down there anymore.35 Autonomy means different things to different people, to such an extent that it is often complicated to pin-down what it is that is being referred to when we’re talking about autonomy. What is legal autonomy? What is autonomy in the rhetorical sense? How can children have autonomy when they are not considered to have mental capacity in the legal sense? Furthermore, autonomy requires both defence of its virtues, and acknowledgment of its shortcomings. Autonomy helps bring focus to the dignity of the individual. However the “liberal ideal”36 of autonomy – making one’s own choices at any price save illegality – has been criticised from many quarters. It has been suggested that the autonomous, independent person is a myth which ignores that we all live in a complex web of interdependent relationships.37 Some feminist theorists, for example, have described it as so individualistic as to primarily benefit the powerful, that is, those with the means to do as they please.38 It will be outlined in this section that indeed autonomy should not be approached uncritically. It is very limited in day-to-day reality – we just cannot always get what we want. It can indeed be problematically individualistic. It can potentially allow us to shirk our responsibilities in favour of our own interests. It can encourage abandonment of vulnerable people to their fates when they make harmful choices, with the excuse that we are ‘respecting autonomy’. All of these scenarios are played-out in the law and in courts. In the area of cohabitation in England and Wales, for example, legal provision has yet to be made to ensure that wealthy cohabitants do not escape having to provide necessary support for economically vulnerable ex-partners (mothers caring for children rather than building careers for example).39 The failure to act to provide for vulnerable cohabitants has primarily been in the name of ‘autonomy’, as if everyone cohabiting for decades rather than marrying is doing so out of 35

36 37 38 39

Fourteen year old boy with experience of family law proceedings, quoted in Gillian ­ ouglas et al., Research into the Operation of Rule 9.5 of the Family Proceedings Rules, 1991 D (Department for Constitutional Affairs, 2006), at 95. Ashley, note 18, at 1. Alan Prout, “Taking a Step Away from Modernity: Reconsidering the New Sociology of Childhood” 1 Global Studies of Childhood 4 (2011); Fineman, note 16. Jean Grimshaw, Philosophy and Feminist Thinking (University of Minnesota Press, 1986). See for example Katie O’Callaghan, “‘Unfair’ Laws for Cohabiting Couples ­Highlighted Again” bbc News Online (6 Feb. 2013). Available at: http://www.bbc.co.uk/news/business -21337154 (last accessed 5 Apr. 2017).

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conscious choice (the economically powerful party may be resisting marriage to protect finances). Another example of the questionable application of respect for ‘autonomy’ is where courts make decisions which fail to protect vulnerable, yet legally autonomous, patients.40 These issues of power are important to consider when placing ‘autonomy’ in the context of children’s best interest proceedings – there is no escaping the fact that children are a relatively vulnerable group. Yet autonomy does not have to be individualistic and uncaring. Autonomy can and should be viewed in its proper context of our duties to others, and the social nature of our lives. In this section, it is considered that far from being about looking out for number one, and far from facilitating powerful individuals to stay powerful, autonomy is in fact about respect for others. This is of course even more crucial for children than adults because of their relative vulnerability. The children’s autonomy principle does not mean that courts can or should abandon children to disastrous choices – this is why it should be possible to override children’s wishes where it is likely that significant harm will arise from those wishes;41 and also why it should be necessary to provide children with support for making choices.42 2.1

Personal and Legal Autonomy They should have some say because they’re the ones who are stuck in the middle of it. They have to have a say.43

While we all probably have a colloquial understanding of what autonomy means, there is no universally accepted definition of the term44 and there are a number of ways it can be understood. Autonomy is primarily known as the individual’s capacity for self-governance – ‘personal autonomy’.45 Autonomy 40 41 42 43

44 45

See for example Herring, note 15, and below Section 5.2. See Chapter 6. See Chapter 7. Twelve year old girl quoted in Judy Cashmore, “Children’s Participation in Family Law Decision-Making: Theoretical Approaches to Understanding Children’s Views” 33 Child Inclusive Research, Policy and Practice, Children and Youth Services Review 515 (2011), at 517. Victoria Chico and Lynn Hagger, ‘The Mental Capacity Act 2005 and Mature Minors: A Missed Opportunity?’ 33 Journal of Social Welfare and Family Law 157 (2011), at 158. See “Autonomy” The Internet Encyclopedia of Philosophy. Available at http://www.iep.utm .edu/autonomy/ (last accessed 24 Jun. 2016). There are other conceptualisations of this term, such as moral and political autonomy. Autonomy also arises as a “folk concept”, that is as a desire for freedom in an area of one’s life. Ibid.

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is a concept of such import that it is ubiquitous across a variety of disciplines. The concept is probably most extensively examined in the discipline of philosophy, where it is considered that an autonomous, self-governing individual has authority over oneself, and has the power to act on that authority.46 In political philosophy, it is theorised that the preconditions for autonomy are freedom from coercion, availability of options, and the ‘mental capacity’ for autonomy.47 In the discipline of psychology, although there are many and varying approaches to autonomy;48 one definition is that autonomy is the “experience of behavio[u]r as choiceful, owned, volitional, and self-endorsed at a high level of personal reflection.”49 A clear picture emerges of the ideal of autonomy across disciplines – it is a quality which enables you to make your life your own.50 There is also, of course, the notion of legal autonomy, that is the legal right to make one’s own decisions, a right which is usually attained on reaching the age of capacity at 18 years.51 Herring and Wall contrast ‘autonomy’ as a philosophical concept with ‘capacity’ (that is mental capacity) as a legal standard.52 46

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Marina Oshana, “A Commitment to Autonomy Is a Commitment to Feminism” in Andrea Veltman and Mark Piper, eds, Autonomy, Oppression, and Gender (Oxford University Press, 2014), at 214. See further Joseph Raz, The Morality of Freedom (Clarendon Press, 1986) and Luara Ferracioli, “The Anarchist’s Myth: Autonomy, Children, and State Legitimacy” 30 Hypatia 370 (2015), at 374. See for example Melanie Zimmer-Gembeck and Andrew Collins, “Autonomy Development during Adolescence” in Gerald Adams and Michael Berzonsky, eds, Blackwell Handbook of Adolescence (Blackwell Publishers, 2008), at 2. Christopher Niemiec, Bart Soenens, and Maarten Vansteenkiste, “Is Relatedness Enough? On the Importance of Need Support in Different Types of Social Experiences” in Netta Weinstein, ed, Human Motivation and Interpersonal Relationships (Springer, 2014), at 79. John Coggon, “Varied and Principled Understandings of Autonomy in English Law: Justifiable Inconsistency or Blinkered Moralism?”15 Health Care Analysis 235 (2007), at 243 cites Gerald Dworkin, The Theory and Practice of Autonomy (Cambridge University Press, 1988), at 105–7. “A child or incapacitated adult may, in strict law, lack autonomy.” X. (A Child) [2014] ewhc 1871, para. 10. There are of course exceptions to this. For example individuals may not be permitted to drink alcohol in the us until age 21 (National Minimum Drinking Age Act 1984) and the age of consent to medical treatment is 16 years in many jurisdictions, for example England and Wales. Jonathan Herring and Jesse Wall, “Autonomy, Capacity and Vulnerable Adults: Filling the Gaps in the Mental Capacity Act” 35 Legal Studies 698 (2015), at 703. See also Emily Buss, “What the Law Should (And Should Not) Learn from Child Development Research” 38 Hofstra Law Review 13 (2009).

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Most philosophers accept that autonomy (philosophically) is something that is possessed in degrees whereas the legal standard of capacity is typically understood as a binary concept – an individual either has capacity or they do not. There is a minimum threshold necessary for legal capacity in England and Wales for example, and it could be said that an individual is legally ‘autonomous’ once they cross that threshold53 although it may be determined that individuals have capacity to make some decisions but not others.54 It is here that the core of the legal difference between over and under-18s is situated. Adults are assumed to have mental capacity, and therefore legal autonomy. For children, as far as the law is concerned, matters are simply decided on their behalf by parents/guardians, and failing that by courts. The only exception to this is where a statute dictates otherwise,55 and the only area in which this has been analysed in detail is perhaps in medical law. This area of law appears to be the only one in which courts and others (such as academics and practitioners) have explored the questions around where decision-making power ultimately does and should lie when difficult issues arise. Where children have preferences as to their medical treatment, the matter of who should decide – child, parent, or court – has been played out time and again, seemingly with no concrete answer.56 2.2

The Impact of Our Environments on Autonomy Charles, he’s brilliant. When he’s the head of my review meetings it’s so cool. You can talk to him and like, he and my social worker’ll talk to

53 54 55 56

Herring and Wall, ibid, at 703. Mental Capacity Act 2005 of England and Wales. States typically have legislation permitting consent to sex and consent to medical treatment at some point before the age of 18. Gilmore and Herring, note 7, at 6. See further Section  6 below. The lack of clarity has arisen in the press in recent years. In 2010 a 15 year old died after refusing a blood transfusion. bbc News, “Teenage Jehovah’s Witness ‘Died After Refusing Blood’” bbc News Online (18 May 2010). Available at http://news.bbc.co.uk/1/hi/england/west_midlands/8690785. stm (last accessed 6 Jan. 2016). In 2016 Marie Stopes International suspended all uk abortion services for under-18s when quality control inspectors were “concerned that the right protocols may not be in place to ensure that girls under the age of 18 were able to give informed consent to a termination.” Sarah Bosely, “Marie Stopes Suspends Some Abortion Services over Safety Issues” The Guardian Online (20 Aug. 2016). Available at: https://www .theguardian.com/world/2016/aug/19/marie-stopes-suspends-some-abortion-services -over-safety-issues (last accessed 20 Aug. 2016).

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me, and they’ll talk to each other as well, and it’s like, they’ll include me in it.57 .

Clearly our environments have an enormous impact on our choices, values, and abilities. When we start to consider the factors that might limit our decisions and freedoms in a real, substantive sense we are faced with the question as to whether we can in fact be described as autonomous beings at all. We may perceive our opinions, desires, and life plans as having been formed ‘freely’, whereas they will in fact have been influenced and constrained by numerous factors. How we function is dependent on our circumstances, both social and physical.58 Bandura theorises that our actions and beliefs arise from continuous interaction between us and our environment. We construct our ability to regulate our behaviour and choices from patterns developed in the process of these interactions.59 The image of the fully informed and rational individual making their own decision is a fiction, some argue, one which should be rejected: “Our decisions are, in fact, commonly the result of forces outside our control and our values are rarely freely chosen.”60 First there is the matter of our relationships with others. How likely are you to choose a course of action that is good for you but bad for your child, for example? How free are you to attend a social function when a controlling spouse threatens violence if you go? Then there are the norms of the cultures in which we live. How likely are you to choose to attend university if education is not valued in your culture, and if it would be frowned upon to choose it? Another crucial factor is the matter of constraints of social structures, such as one’s socio-economic status. Everyone has the right to choose the most optimal health insurance, for example, but in reality such a luxury is only open to those who are wealthy. Add to this the fact that our physical and social environments have much more of an effect on our systems than we imagine. Beever and Morar even argue that we (individual human beings) should consider ourselves “networks”

57

58 59 60

Quote from girl in care, cited in Alison McLeod, “Whose Agenda? Issues of Power and Relationship when Listening to Looked-After Young People” 12 Child and Family Social Work 278 (2007), at 282. Martha Minow and Mary Shanley, “Relational Rights and Responsibilities: Revisioning the Family in Liberal Political Theory and Law” 11 Hypatia 4 (1996). Albert Bandura, “Human Agency in Social Cognitive Theory” 44 American Psychologist 1175 (1989). Herring, note 15, at 70.

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of social and biological interactions, rather than single organisms.61 They base this on the effects of external factors on our physical beings. Social interactions, especially negative ones, actually cause biological change that integrates in the systems functioning of the individual – essentially “experiences get under the skin and alters … human biological processes in relevant ways.”62 This level of connectedness to our environment – which is now scientifically proven and accepted – points clearly to the myth of the fully autonomous individual. Just as with adults, then, children are products of their surroundings, and these surroundings will shape their beliefs and preferences. Autonomy, as important as it is, must be understood in this framework. In any case, what is rational in the first place is another difficult issue. The election to power of Donald Trump and the result of the Brexit referendum led to claims that we are in an era of post-truth politics. Baggini considers the place of ‘reason’ in society, and argues that it should not be valued too ­highly, nor completely rejected.63 Rationality and reason have come in for much criticism because these qualities are associated with a sterile, scientific world view which does not value emotion, intuition or faith. The things most valued by people in life – love and self-sacrifice for example – are seemingly irrational. But in fact, emphasises Baggini, they are non-rational in that they are not ultimately rooted in reason. Love might be non-rational therefore (as it’s not rooted in reason) but it is not irrational (because it is not necessarily contrary to reason). Rationality and reason are useful for assessing and understanding choices, but they don’t give us motives or tell us what we should value the most.64 This issue frequently arises in cases where children’s choices are rejected by courts on the basis that they are irrational, when they may simply be based on motives that are not rooted in rationality – love of parents, in spite of their abuse and neglect, for example. Choosing to stay in the care of such parents may seem irrational, but it depends on what one’s motives are. If one’s motives are to retain relationships with one’s only attachment figures, then the choice, whilst based in the non-rational, cannot be said to be irrational. 61

62

63 64

Beever and Morar, note 10, at 41, and Clyde Hertzman and Tom Boyce, “How Experience Gets Under the Skin to Create Gradients in Developmental Health” 31 Annual Review of Public Health 329 (2010), at 330. Hertzman and Boyce, ibid. Incredibly, microbial make-up has a significant impact on our behaviour and apparently, we are more microbe than human, surface-wise! Beever and Morar, ibid, at 36. Julian Baggini, The Edge of Reason: A Rational Skeptic in an Irrational World (Yale University Press, 2016). Ibid.

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In spite of the question mark over whether we can be truly autonomous, and whether we are rational creatures, there is no need to abandon the notion of autonomy. We should instead acknowledge its limitations, and interpret the concept in a framework which acknowledges the factors and forces which result in people making the choices that they do – children included.65 When considering the types of family dynamics at issue in best interest decisions, for example, we must consider the paradox at play. Family members are of course individuals, but they are individuals who are defined to some extent by their relationships with others.66 Our well-being is usually intimately connected with our family and others close to us, as acknowledged in one best interest case concerning an adult with cognitive impairment: “[E]ach person’s comfort and happiness is, in part, depend[e]nt on and a reflection of, the comfort and happiness of the other family members.”67 An autonomous decision by a child will usually be based on what is best not just for themselves, but also for those who are important to them; those on whom the child’s well-being turns. Herring points-out that for most patients who are faced with decisions, the question is not what is best for oneself, but instead what the best course of action might be, based on the responsibilities owed by us to others, and that owed to us by them.68 The “trust and loving interdependence between child and parents…”69 makes this point even more pertinent for children than adults, but it does not mean that we should not respect children’s autonomy. 2.3

Children and Relational Autonomy [M]um was the one making me breakfast, getting me ready for school, picking me up, if I wanted to go around my mates house she was the one taking me, just generally being my mum…70

The need to understand autonomy as relational is hugely important, as it should be accepted as a given that our decisions are rooted in relationships 65 66 67 68 69 70

Herring, note 15, at 70. Minow and Shanley, note 58, at 5. An nhs Trust v d.e. [2013] ewhc 2562, para. 43. Herring, note 15, at 66–7. Alderson, note 5, at 47. Adult describing basis for his childhood decision as to where he wished to live on parental breakdown, cited in Jane Fortin, Joan Hunt and Lesley Scanlan, Taking a Longer View of Contact: The Perspectives of Young Adults who Experienced Parental Separation in their Youth (Sussex Law School, 2012), at 225.

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with others. Feminist theorists71 have proposed a relational approach to autonomy, emphasising the social nature of the self and the fact that social relations are necessary for the realisation of autonomy.72 Advocates of the relational model of decision-making emphasise the influence of a web of relationships on a person’s decision-making abilities and highlight the ethical importance of the impact of decisions on those relationships.73 Relational considerations will likely be even more important in decision-making concerning children’s interests in, for example, indigenous communities. In the New Zealand context, van Rooyen et al. emphasise that children from a Māori background are immersed in extended family and tribe. Faced with a health decision, unlike the Anglo-European approach, the considerations of a Māori child may extend well beyond the dyad of parent and child in their decision-making.74 In order to adequately understand why autonomy is a useful concept to apply to children’s best interest proceedings, it is important to emphasise that autonomy is less about getting whatever one wants, and more about respect for the dignity of human beings. Childress bemoans the fact that the term autonomy is often criticised on the basis of the mistaken belief that it is a selfish, self-oriented concept.75 He argues that autonomy should not be seen to involve simply one’s claim to have one’s own autonomy respected, but instead a limited and complex principle of respect for autonomy. This principle more clearly “obligates us to respect the autonomous choices and actions of others.”76 The term ‘respect’ Childress says in this context does not involve simply having regard for, but should be taken to mean “to consider worthy of high regard, to esteem or to value” and “an act of refraining from interfering with, or attempting to interfere with the autonomous choices and actions of others, through subjecting them to controlling influence, usually coercion or manipulation of information.”77 This argument indeed reflects the development of bioethics in recent years. Beauchamp’s and Childress’ book Principles of Biomedical Ethics has been the 71

72 73 74 75 76 77

See for example Katrien De Graeve, “Children’s Rights and Gender Studies: Gender, Intersectionality and the Ethics of Care” in Wouter Vandenhole et al., eds, Routledge International Handbook of Children’s Rights Studies (Routledge, 2015), at 155. Marilyn Friedman, “Relational Autonomy and Independence” in Andrea Veltman and Mark Piper, eds, Autonomy, Oppression, and Gender (Oxford University Press, 2014). Jonathan Herring, Family Law (5th edn, Pearson Education Ltd, 2011), at 40. Amanda van Rooyen et al., “What Makes a ‘Competent’ Child?” 128 The New Zealand Medical Journal 1426 (2015). James Childress, “The Place of Autonomy in Bioethics” 20 Hastings Center Report 12 (1990). Ibid, at 12–3. Ibid, at 13.

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leading text in bioethics for decades.78 In early editions the authors heavily emphasised patient autonomy as the primary moral basis for bioethics, but in later editions they sought to construct a more relational version of autonomy, emphasising the respect that autonomous agents deserve, rather than an idealistic and fully autonomous individual.79 Autonomy and care are interlinked then – autonomy should not always mean refraining from action.80 Nor should it encourage a laissez-faire attitude which discourages an ethic of care.81 Autonomy support therefore is crucial for children to enjoy autonomy. Rather than being abandoned to make decisions alone, children should be supported with information and other assistance.82 Without this they are not enjoying respect for autonomy, but instead being treated negligently. Respect for autonomy is to some extent about having one’s own choices, personhood and dignity valued, but it is primarily about respecting the autonomy of others. It should be about recognising that generally people are not good at determining what is in someone else’s best interests, so we should try to refrain from doing so.83 Further, it encourages acceptance of our limited ability to see from the perspective of others, and in our interactions with others, encourages us to seek to engage with them as individuals and as equals with legitimate beliefs and values, for example, “[i]n the context of patient care, it requires carers and medical staff to try to understand, from the patient’s perspective, her experience of illness, or of particular treatment options.”84 Concluding Thoughts on What Autonomy is: Autonomy Means Care Obligations Autonomy does not just mean refraining from interference then, it also generates care obligations. Herring and Wall note arguments in the context of

2.4

78 79 80 81

82 83 84

Tom Beauchamp and James Childress, Principles of Biomedical Ethics (Oxford University Press, 1979). See Anne Donchin, “Autonomy, Interdependence, and Assisted Suicide: Respecting Boundaries/Crossing Lines” 14 Bioethics 187 (2000). Childress, note 75, at 13. Ibid, at 15. Fineman argues for moving beyond formal equality to recognising those situations in which “sameness of treatment” is not adequate, for example for those without wealth who cannot ‘buy’ their autonomy. Fineman, note 16, at 22. See further below Section 3, and Chapter 7. Herring and Wall, note 52, at 702 and Kim Atkins, “Autonomy and the Subjective Character of Experience” 17 Journal of Applied Philosophy 71 (2000). Catriona Mackenzie, “Relational Autonomy, Normative Authority and Perfectionism” 39 Journal of Social Philosophy 512 (2008).

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vulnerable adults that imposing best interest decisions undermines the protection of autonomy. They argue however that the opposite can also be the case: “A proper appreciation of autonomy involves respecting the views of autonomous people, but also being alert to cases where a person is not autonomous and fashioning an appropriate response to those cases.”85 The same is true in the case of children. ‘Autonomy’ simply should not mean that children are abandoned to harmful situations, or to manipulation by another. It is the lack of nuance which is the problem – we can have a conception of autonomy which involves a degree of paternalism only where necessary. It also means that respect for children’s autonomy involves having to go to the trouble of facilitating their decision-making process – providing information, giving advice and support, and properly resourcing these facilities.86 We need to accept the limitations of autonomy then, but not abandon it altogether. Children can have their autonomy respected without being given the same status as adults and without being abandoned to harmful fates unaided. Talking about autonomy should be as much about adults’ obligation to respect children as individuals, and to treat their choices as important, as it is about children’s rights claims. An obligation to respect children’s autonomy will inevitably involve a limited autonomy, as is the case for adults too. Yet autonomy ensures a crucial protection against the unbridled power of the state, and in the case of children, the power of adults also, whether those adults are well-meaning or malevolent. It ensures that children’s position as individuals, and as members of a distinct category, have a unique perspective that adults may not understand. 3

Self Determination Theory: Autonomy as Crucial to Well-being Kids should always say their opinion … should always be heard. Otherwise it won’t work at all because the kids won’t be happy.87

The discipline of psychology is fantastically useful for outlining why exactly autonomy is held in such high regard as an ideal in our lives – the pursuit of autonomy is not simply some modern, libertarian-specific ideal. As it turns out, it is extraordinarily beneficial to our well-being. This goes for children too. Psychology also provides us with insight as to how to further autonomy, and 85 86 87

Herring and Wall, note 52, at 699. What such support might involve is examined in detail in Chapter 7. Eighteen year old young lady quoted in Cashmore, note 43, at 518.

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how autonomy is not individualistic – it is about feeling respected and supported amongst others to whom we are connected. Perhaps the high value we place on autonomy can be understood by considering the seemingly inherent drive which human beings have to exercise it. Iyengar makes the point that we equate having choices with having control (regardless of whether our level of choice is only perceived), and that having control is in fact beneficial for our well-being.88 Winik suggests, for example, that a patient’s agreement to accept a course of treatment recommended can in itself may be therapeutic, not least because compliance with a treatment plan (for example turning up for appointments) is often indispensable to successful treatment.89 Research points to this benefit applying to children also, in that greater involvement in treatment decisions increases both children’s compliance with chosen treatments as well as their ability to cope with their illnesses.90 Even where patients are perceived to have very low decisionmaking abilities, it is advised that they should have the greatest degree of choice possible.91 Yet the value of autonomy runs even deeper than this – it appears to be of intrinsic value to the neuropsychology of human beings. We are born wanting to exercise autonomy. Neurons in the relevant part of our brains (the striatum) respond more to rewards that we actively choose than to identical rewards that are passively received.92 Research has repeatedly shown that people – from babies to the elderly – prefer to engage in activities in which they feel they have choice, even where this is just a perception.93 In one psychology experiment in the us, a nursing home permitted some residents to have slightly more (and seemingly trivial) choices than residents on a different floor, relating for ­example to the timing of activities and the decorating of their rooms.94 The differences between the two groups of residents were striking – those in the first group reported that they felt happier and more active than those on the other 88 89 90

91 92 93 94

Sheena Iyengar, The Art of Choosing (Abacus, 2010). Winik, note 25, at 101. See Denise Angst and Janet Deatrick, “Involvement in Healthcare Decisions: Parents and Children with Chronic Illness” 2 Journal of Family Nursing 174 (1996) and Imelda Coyne, “Consultation with Children in Hospital: Children, Parents’ and Nurses’ Perspectives” 15 Journal of Clinical Nursing 61 (2006). Winik, note 25, at 108. See further Iyengar, note 88, at 9. Ibid, at 9–10. Ellen Langer and Judith Rodin, “The Effects of Choice and Enhanced Personal Responsibility for the Aged: A Field Experiment in an Institutional Setting” 34 Journal of Personality and Social Psychology 191 (1976).

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floor. The former group’s general condition improved over the three weeks of the study, while the condition of the latter group was generally seen to decline. The extent of this difference was that members of the group who perceived greater autonomy were even found to have been less likely to have died! 3.1 Autonomy in a Holistic Context: Self-Determination Theory It is perhaps unsurprising then that contrary to popular assumptions, it is respect for autonomy – not an emphasis on reward and punishment – which has been found to be the best way to interact with children both at home and at school. Self-determination theory is a research-based psychological theory which proposes three basic universal psychological needs – autonomy, competence and relatedness.95 Autonomy then is a crucial ingredient required for individuals to function in a healthy, integrated way; a way which permits ongoing psychological growth and well-being.96 When any one of these basic psychological needs are neglected (autonomy included, of course), it is hypothesised that individuals will show motivational and psychological decreases, including lesser integration and well-being.97 Extensive research indicates that these benefits for health and well-being can be found regardless of factors such as gender, age, culture, social status, or any other delimiting factor.98 In fact, unduly controlling behaviour from parents has been found to negatively affect children even at 12 months of age.99 The need for autonomy involves the desire of individuals to perceive their behaviour as self-endorsed100 – as coming from themselves rather being controlled by others. This is inextricably linked to the other two needs. The need for ‘competence’ is the drive to feel like one has opportunities to understand one’s environment and the ability to exercise autonomy on the basis of that.101

95

Deci and Ryan, “Autonomy and Need Satisfaction in Close Relationships: Relationships Motivation Theory”, note 3, at 54. 96 Richard Ryan and Edward Deci, “The ‘What’ and ‘Why’ of Goal Pursuits: Human Needs and the Self-Determination of Behaviour”, note 3, at 229. 97 Richard Ryan and Jennifer La Guardia, “What is being Optimi[s]ed?: Self-Determination Theory and Basic Psychological Needs” in Sara Honn Qualls and Norman Abeles, eds, Psychology and the Aging Revolution: How we Adapt to Longer Life (American Psychological Association, 2000). 98 Niemiec, Soenens, and Vansteenkiste, note 49, at 79. 99 Ibid. 100 Ryan and La Guardia, note 97. 101 Ibid.

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‘Relatedness’ reflects the need to interact and to be connected to others;102 as having “close, caring, and mutually supportive connections.”103 It involves having a safe and caring base from which to operate, from which to be guided and from which to exercise autonomy. By facilitating individuals to exercise control and make choices, they build skills necessary for successful living. Without this feeling of efficacy and control, it is argued, one is at much greater risk of a variety of social and health problems.104 This theory has been studied extensively in both parenting and educational contexts. There is strong evidence that these three needs exist, and that a sense of autonomy is crucial to our well-being, bringing significant benefits across many areas. It seems highly likely that the context of best interest decisionmaking would be no different, in that children require support for autonomy and for understanding (having ‘competence’ of) their environments (for example families or courts), through positive relationships with others such as parents and professionals. 3.2

“Autonomy Support”: Assisting Children’s Autonomy Well, the fella we had, he was really good. He really sort of made things simple for us to understand…105

Within self-determination theory, the term “autonomy support” has been developed, which refers to involving and nurturing children’s psychological needs, interests and values.106 Examples of support for children’s autonomy include allowing children to explore their environment and permitting them to take an active role in solving the problems which they encounter.107 102 103 104 105

Ibid. Niemiec, Soenens, and Vansteenkiste, note 49, at 79. Winik, note 25, at 110. Child quoted in Yvonne Darlington, “Experiences of Custody Evaluation: Perspectives of Young Adults Who Were the Subject of Family Court Proceedings as Children” 3 Journal of Child Custody 51 (2006), at 57. 106 See for example Wendy Grolnick, The Psychology of Parental Control: How Well-Meant Parenting Backfires (Lawrence Erlbaum, 2003). See further Bart Soenens et al., “Conceptuali[s] ing Parental Autonomy Support: Adolescent Perceptions of Promotion of Independence Versus Promotion of Volitional Functioning” 43 Developmental Psychology 633 (2007). 107 Eva Pomerantz, Wendy Grolnick and Carrie Price, “The Role of Parents in how Children Approach Achievement: A Dynamic Process Perspective” In Andrew Elliot and Carol Dweck, eds, Handbook of Competence and Motivation (Guilford Press Publications, 2005), at 261.

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In contrast, controlling behaviour will involve parents pressuring children towards particular outcomes using tools such as commands, restrictions and love withdrawal.108 There is a large body of evidence that the more parents support the autonomy of children by encouraging children’s choices, and the less parents try to control children with commands and pressure, the better children’s outcomes in education and other areas.109 This is the case even when taking into account other factors such as children’s prior achievement and parents’ educational attainment.110 Greater autonomy has also been found to be correlated positively with children’s emotional functioning,111 life satisfaction and even lower levels of alcohol use,112 particularly where children make decisions together with parents.113 The concept of autonomy support is crucial to the children’s autonomy principle proposed in this book. If great emphasis is to be placed on autonomy for children in best interest proceedings, children should be supported to be involved in proceedings, to understand their situations, and to have informed opinions; rather than being abandoned to deciding their wishes alone. As Herring and Wall point out, autonomy should be understood to necessitate appropriate responses where people are less autonomous.114 Therefore just giving people a choice will often be insufficient. There are many reasons for the striking benefits of autonomy support outlined in the psychology research. One is that, where children are supported to be autonomous, they enjoy a positive learning experience. Where children receive autonomy support their needs and desires are recognised, so children can take the initiative, and can have the opportunity to solve problems on their 108 Ibid. 109 Ibid. 110 Samantha Bindman, Eva Pomerantz and Glenn Roisman, “Do Children’s Executive Functions Account for Associations Between Early Autonomy-Supportive Parenting and Achievement Through High School?” 107 Journal of Educational Psychology 756 (2015), at 775. The Committee on the Rights of the Child also emphasises that children’s “capacities to form a view” will be dependent on the support they receive. Committee on the Rights of the Child, General Comment No. 12: The Right to be Heard (1 July 2009) CRC/C/GC/12, para. 29. 111 Yuki Hasebe, Larry Nucci, and Maria Nucci, “Parental Control of the Personal Domain and Adolescent Symptoms of Psychopathology: A Cross-National Study in the United States and Japan” 75 Child Development 815 (2004). 112 Niemiec, Soenens, and Vansteenkiste, note 49, at 79. 113 Bindman, Pomerantz and Roisman, note 110. 114 Herring and Wall, note 52.

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own, rather than having controlling adults intruding and making decisions on their behalf.115 Much research suggests that the reason autonomy support results in higher educational attainment is its beneficial effects on children’s executive functions – cognitive skills which permit children to manage behaviour; analysing information and flexibly changing strategies.116 Conversely, controlling behaviour interferes with the ability of children to learn to solve their own problems.117 Another reason that autonomy support is associated with better outcomes across numerous measures is that human beings – children included – simply want to feel in control of our own destinies. From birth, human beings wish to experience their behaviour as deriving from themselves, so that they feel that their actions are as a result of their own preferences.118 Where children enjoy autonomy support, they feel that they have been facilitated in autonomous motivations, rather than being driven by pressure, guilt, rewards or fear.119 It is unsurprising then that this is transferable to legal decisions concerning children. It has been found, for example, that when children in care are not given the opportunity to be involved in decisions concerning them, they experience significant levels of distress.120 Self-esteem, where one thinks well of oneself and has a solid sense of self, is a crucial factor for well-being.121 Deci and Ryan explain how supporting an individual’s autonomy facilitates their true self and brings them feelings of selfworth: “Being related to and autonomy-supportive of another – of one’s child or student, for example – means valuing the other for who he or she is and taking that other person’s frame of reference.”122

115 116 117 118 119

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Bindman, Pomerantz and Roisman, note 110, at 756. Ibid. Pomerantz, Grolnick and Price, note 107, at 261. See Richard deCharms, Personal Causation (Academic Press,1968) and Pomerantz, Grolnick and Price, note 107, at, at 260. Wendy Grolnick, Edward Deci, and Richard Ryan, “Internali[s]ation Within the Family: The Self-Determination Theory Perspective” in Joan Grusec and Leon Kuczynski, eds, Parenting and Children’s Internali[s]ation of Values: A Handbook of Contemporary Theory (Wiley, 1997). Sharon Bessell, “Participation in Decision-Making in Out-of-Home Care in Australia: What do Young People Say?” 33 Children and Youth Services Review 496 (2011). See further Chapter 6. Edward Deci and Richard Ryan, “Human Autonomy: The Basis for True Self-Esteem”, note 3, at 31–2. Ibid, at 46.

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Autonomy support assists us to feel important, to feel good about ourselves, to feel confident about solving problems, to feel respected by others. This is why autonomy support for children has been correlated positively with their wellbeing. The point of legal proceedings is not necessarily to progress children’s well-being – it is not like education or medical treatment, for example. Nevertheless it is clear that autonomy is of enormous importance to individuals, and logically this rule would apply in legal proceedings too. At the very least, then the best interest principle should involve explicit acknowledgement of this – it is generally in one’s best interests to have one’s autonomy prioritised. 4

Is it so Obvious that Children Should be Denied Legal Autonomy? [S]ocial workers … they’re the ones that make the decisions. Sometimes they don’t realise how much power they have in their hands. You feel so inferior to them and you feel you want to swap places just to show them what it’s like.123

Having considered the nature of ‘autonomy’, I will provide in this section a brief initial overview of the main reasons why children have been, in the main, excluded from the concept of the autonomy ideal and consequently autonomy in the legal arena. The primary reason is the assumption of children as irrational and lacking capacity. 4.1 Children as Less Rational In spite of the priority accorded to autonomy in the liberal democracy, there is a widely accepted assumption that children should not enjoy it. Indeed Mill himself excluded children from his general doctrine of liberty.124 In his essay On Liberty he explains why his doctrine should not apply to children: “Those who are still in a state to require being taken care of by others, must be protected against their own actions as well as against external injury.”125 He suggests that it is “perhaps, hardly necessary” to point out that his doctrine is only intended to encompass “human beings in the maturity of their faculties.” It is striking that he perceives the exclusion of children as so obvious that he does 123 Quote from girl in care, cited in McLeod, note 57, at 283. 124 Ingrid Steinberg, Paternalism and the Moral Status of Children (Unpublished dissertation, University of California, 2015), at 23. 125 John Stuart Mill, On Liberty, edited by David Bromwich and George Kateb (Yale Uni Press, 2003), Chapter i, para. 10.

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not explain what constitutes “mature faculties”126 and that he does not qualify the assumption that children are cared for by adults (it is not always true). In more recent times, Purdy warned that children may make mistakes which will interfere with “their development into Kantian autonomous beings who are ruled by principle.”127 There is extensive focus even in the most liberal of children’s rights literature on the right of children to an “open future”,128 a right apparently to be realised by preventing any decisions by the child (or others) which might limit future autonomy.129 A large part of the reasoning here is due to children’s mental capacity (by which I mean their decision-making abilities, rather than legal capacity). Part of Kant’s argument on the value of dignity is based on the ‘rationality’ – that is the capacity for decision-making, the reason, the autonomy – of human beings.130 When we talk about capacity, which we will do in some detail below, we are talking at least in part about whether someone is ‘rational’ (that is, acting in accordance with logic). The case of children challenges this notion of dignity as based on rationality, as they are not considered to be as rational as adults, and infants are considered by many to lack reason altogether. Some theorists maintain that it is the potential for reason belonging uniquely to human beings which is associated with human dignity.131 We belong to a kind of club of creatures who either have reason, or the potential for it, and therefore we are inherently valuable as individuals.132 Baertschi points-out that human beings possess many distinctive properties, yet rationality holds a privileged status: 126 Buss, note 52, at 17. 127 Laura Purdy, In Their Best Interest: The Case Against Equal Rights for Children (Cornell University Press, 1992), at 75. 128 Joel Feinberg, “The Child’s Right to an Open Future” in Freedom and Fulfillment: Philosophical Essays (Princeton University Press, 1992). 129 See development of this in John Eekelaar, “The Interests of the Child and the Child’s Wishes: The Role of Dynamic Self-Determinism” 8 International Journal of Law, Policy and the Family 42 (1994). 130 See further Baertschi, note 22. 131 Phillip Karpowicz, “Developing Human-Nonhuman Chimeras in Human Stem Cell Research: Ethical Issues and Boundaries” 15 Kennedy Institute of Ethics Journal 107 (2005), at 122. 132 Incidentally, the ARHGAP11B gene which enabled the human brain to expand in size, facilitating language and thought; becoming “the most the most complex structure in the universe”; has recently been discovered. See Ian Sample, “Gene that Makes Human Brain Unique Identified by Scientists” The Guardian Online (15 Feb. 2015) Available at https:// www.theguardian.com/science/2015/feb/26/gene-that-makes-human-brain-unique -identified-by-scientists (last accessed 23 Jun. 2016).

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It is notably visible in our general stance toward the loss of rational faculties: Such loss is generally considered the worst thing that can affect us. For most of us, reason remains internally linked with high value, in such a way that we seldom ask for a justification of this link. It is a kind of moral intuition.133 If it is so very important, then vindicating to the extent possible the autonomy of those who are not fully ‘rational’ is a necessary part of how others should be expected to care for and respect them. It is not sufficient to assume that under18s are not rational and to consequently deny them autonomy. ­Accepting the dignity of the child as an individual requires that we respect the a­ utonomy of that child – in the sense of upholding their choices – if at all possible. It follows, then, that where it is determined that they must be denied their wishes, extensive justification should be required. Although in reality it is ­probably because we don’t want to undermine parents or other adults, we rely on the factor of children’s apparent lack of rationality, their ‘lesser capacities’. Commentators,134 practitioners135 and courts136 regularly rely upon this, yet it is a contested and ambiguous notion. I will consider in detail below the problems with relying on capacity as an excuse for withholding autonomy. 4.2

Vulnerability: The Domain of Children Only? I had been looking after [my abusive mum] for about 9 or 10 years … she was really bad then but I couldn’t (speak to the social worker) because of how ill she was. I knew that if she got arrested she wouldn’t be able to cope.137

We assign the state of vulnerability almost exclusively to children, and probably most particularly because of their (presumed) lack of mental capacity. We worry that children do not have the same degree of ability to look after 133 Baertschi, note 22. 134 See for example Jeanne Snelling, “Minors and Contested Medical-Surgical Treatment: Where Are We with Best Interests?” 25 Cambridge Quarterly of Healthcare Ethics 50 (2016); Samantha Brennan, “Children’s Choices or Children’s Interests: Which do their Rights Protect?” in David Archard and Cathy Macleod, eds, The Moral and Political Status of Children (Oxford University Press, 2002); Purdy, note 127. 135 Coyne, note 90. 136 See further Chapter 5, Section 1.3. 137 Child quoted in Jeanette Cossar and Caroline Long, Children and Young People’s Involvement in Child Protection Processes in Cambridgeshire (cwdc Practitioner-Led Research project, 2008), at 9.

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themselves; they may make bad choices or be subject to exploitation. Yet it is increasingly recognised that adults can be vulnerable too. The source of vulnerability may be internal such as a lack of capacity, or alternatively the source of a person’s vulnerability can be external to them, for example, where a person is in an abusive relationship:138 “[A]ll individuals, whether adults or children, can find themselves in relationships in which a power differential renders them vulnerable to harm.”139 Fineman points to the ways in which we are all subject to vulnerability in many areas of life, for example, because of global financial crises and environmental disasters. She argues that states should acknowledge this by replacing law’s focus on the autonomous liberal individual with the vulnerable individual instead.140 Failing to recognise vulnerability permits the state to shirk responsibilities, so to some extent the autonomy myth is very convenient: Adults require little or no care. Children do, but their parents are to take care of that. Therefore there is no need for the state to overly concern itself with adults who have vulnerabilities; as long as they have not been found to lack mental capacity they are free to choose what they do and who they associate with, even where this is highly dangerous. The failure of states to adequately deal with domestic violence, and the reluctance to interfere with women’s (apparent) choices in this context, is ample proof of this.141 The failure of states to recognise vulnerability, Fineman argues, has ­resulted in substantive inequalities and the allocation of privilege to the powerful. This is particularly pertinent to children – the fact that adults have been perceived as the polar opposites of children – rational, competent, invulnerable, has permitted one group to have an enormous privilege of determining their own destiny to the extent possible, but it leaves children, amongst other things, at the mercy of the courts in best interest decisions. Now, as it is being increasingly recognised that even adults with capacity may require support and the overriding of their choices,142 so too should it 138 See Jonathan Herring and Michael Dunn, “Safeguarding Children and Adults: Much of a Muchness? A Local Authority v A and B [2010] ewhc 978 (Fam)” 23 Child and Family Law Quarterly 528 (2011), at 537–8. 139 John Tobin, “Justifying Children’s Rights” 21 International Journal of Children’s Rights 395 (2013), at 426. 140 Fineman, note 16, at 227. 141 See for example Choudhry and Herring who argue that the state should intervene in cases involving domestic violence, even against the wishes of the victim. Shazia Choudhry and Jonathan Herring, “Righting Domestic Violence” 20 International Journal of Law, Policy and the Family 95 (2006). 142 See for example Foster, note 31 and Herring, note 15. Cave also notes the expansion of paternalism across welfare law. See Emma Cave, “Protecting Patients from Their Bad

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be recognised that children deserve autonomy to the extent possible where best interest decisions are being made on their behalf. This should include support to achieve this. We interpret vulnerability as a negative, perhaps even a frightening quality. Herring points to the negative connotations of vulnerability, how we are encouraged to be free from reliance on others; frowned upon where we are in need.143 There is significant media ire for those who are dependent on social security payments for example.144 Herring urges us to actually embrace vulnerability, to “rejoice” in it.145 Fineman too emphasises the need to resist the status quo based on the ideal of the autonomous individual, and accept “the vulnerable as well as dependent nature of the human condition” in order to progress the equality and democracy which could be achieved by accepting that we all need support.146 There are risks to children where their wishes are prioritised in best interest proceedings.147 But risk is not exclusively a children’s problem. There is a growing sense that the law must recognise that vulnerability is not just the domain of children, nor solely of adults lacking capacity. This requires that we question the capatious adults/incapatious children divide which dictates the law’s approach to autonomy. We must distinguish between the denial of children’s autonomy where children genuinely need protection on the one hand from unjustifiable paternalism on the other. 4.3

Minimum Ages: A Crude Protection [I]f I’m 13 years old and say I don’t wish to see him; I think … that they should listen and take what they have to say as much of value as what mum and dad have to say.148

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Decisions: Rebalancing Rights, Relationships and Risk” Medical Law Review (Forthcoming 2016). Herring, note 15. Christian Larsen, and Thomas Dejgaard, “The Institutional Logic of Images of the Poor and Welfare Recipients” 23 Journal of European Social Policy 287 (2013). Herring, note 15, at 1. Martha Fineman, “Vulnerable Subject: Anchoring Equality in the Human Condition” 20 Yale Journal of Law and Feminism 1 (2008), at 19–20. In Chapters 5 and 6, questions concerning the difficulty of predicting ‘good’ outcomes; how the children’s autonomy principle should be approached where there is explicit pressure or manipulation; and what happens when children want genuinely harmful outcomes are considered in a more practical sense. Young adult quoted in Darlington, note 105, at 59.

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crc Article 5, which enshrines the notion of children’s evolving capacities, goes some way towards emphasising the complexities of children’s abilities and experiences. The concept acknowledges children as active agents with increasing capacities to contribute to decision-making, but also as individuals entitled to a greater level of protection in accordance with their relative immaturity and youth. It provides a framework “for ensuring an appropriate respect for children’s agency without exposing them prematurely to the full responsibilities normally associated with adulthood.”149 It is a notion reflected in the Gillick case, in which it was held that parental power will dwindle with the increasing ability of children to make their own choices.150 The notion of evolving capacities is in some contrast, however, to the system of ‘minimum ages’ which exists in most states, which establishes children – those under 18 years for most purposes – as lacking legal capacity. Although it could be said to be aimed at protecting children, it defines children by their vulnerabilities when vulnerability is not particular to children.151 This system is reflected, perhaps even supported one could argue, by crc Article 1 which defines children as all individuals under the age of 18 “unless, under the law applicable to the child, majority is attained earlier.”152 Age limits determine when children may consent to sex or medical treatment, to take up employment, to vote, and when they may be held criminally responsible. The variations in these minimum ages across states and areas of the law can be staggering. The age of criminal responsibility, for example, ranges globally from six to 18 years.153 Although children can be tried from age 10 as an adult for crimes in England and Wales, a 15 year old was compelled by court order to have a non-urgent medical procedure (inoculations) in 2013.154 We are willing, therefore, to impose responsibility on children long before we confer rights on them.155 A striking point made by Freeman which serves to highlight the incongruity of minimum ages is the fact that, theoretically, you can have sex with your political representative (mp in England and Wales) at 149 150 151 152

Gerison Lansdown, The Evolving Capacities of the Child (unicef, 2006), at 3. Gillick v West Norfolk and Wisbech Area Health Authority [1986] ac 112. Tobin, note 139, at 395. This reflects the fact that in some countries majority is attained with marriage, or other status such as military service. 153 Don Cipriani, Children’s Rights and the Minimum Age of Criminal Responsibility A Global Perspective (Routledge, 2009). Cipriani points to the fact that in some us states, however, children can be tried as an adult at any age (at 119). 154 F. v F. [2013] ewhc 2683. 155 Freeman, note 33, at 10.

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age 16, but will have to wait another two years to vote for that representative!156 Minimum ages can appear contradictory because they are not the result of evidence-based assessments of children’s capacities: “Rather … they indicate the economic and social priorities and needs of the State, as well as traditional assumptions about levels of necessary protection.”157 As with best interest decision-making by the courts, these minimum ages are rarely questioned in a fundamental way, in spite of their obviously questionable rationality. Children’s rights organisation Children’s Rights International Network (crin) argues that minimum ages are only justified where it is proven that children require protection from harm, or for setting a benchmark for presumed capacity after which age children acquire an absolute right.158 crin research points to the fact that minimum ages reflect adult prejudices about helpless children, even where the barriers posed by minimum ages in fact likely harm them.159 Age limits preventing children who are addicted to drugs from accessing programmes of assistance such as needle exchanges are a stark example; with motives behind such exclusions being more to do with moral panic than anything to do with children’s protection.160 The lack of logic in the area of minimum ages needs revisiting. It requires a more honest approach in which the discriminatory is distinguished from the necessary. ­Recommendations for alternatives have included presumptions of capacity161 – the inverse of the present situation for many purposes – and careful examination of whether certain minimum ages actually protect children.162 Best interest proceedings are not exactly the same as minimum age regimes. However the two are intrinsically linked. The age of majority is usually 18 years, and those under this age are not legally permitted to have an ultimate say in how their lives are governed. Courts will step-in to do this where necessary. This is perhaps most powerfully demonstrated by the fact that courts are willing to override the right to refuse to consent to medical treatment of 16 year olds, even where statute dictates that children have this right.163 Furthermore, 156 Ibid. 157 Lansdown, note 149, at 49. 158 Child Rights International Network, Age is Arbitrary: Setting Minimum Ages: Discussion Paper (Child Rights International Network, 2016), at 2. 159 Ibid, at 4. 160 See Damon Barrett and Phillip Veerman, “Article 33: Protection from Narcotic Drugs and Psychotropic Substances”, in Andre Alen et al., eds, A Commentary on the United Nations Convention on the Rights of the Child (Martinus Nijhoff Publishers, 2012). 161 Lansdown, note 149. 162 Child Rights International Network, note 158, at 3. 163 See for example Re R. [1991] 4 All 177.

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the same logic applies in both best interest proceedings and minimum age ­regimes – children are considered incapable of making decisions. This binary adult/child approach is replete with incongruences both in the courts and in the context of minimum ages; and yet both are accepted almost totally as sensible systems for dealing with children’s interests. If a presumption in favour of children’s wishes were to be introduced to best interest proceedings, as proposed in this book, it would certainly be desirable to replace minimum ages with a system that better protects children where they truly need it.164 Life is replete with examples of under-18s engaging in activities which are legally impermissible due to their age. A significant minority of teenagers opt to engage in sex before the age of sexual consent, for example.165 Consider also the case of 14 year old Laura Dekker, a Dutch girl who ran away when she was refused permission to sail around the world alone166 – she ultimately received permission and broke the world record for the youngest person to do so.167 This is not to condone these actions, but to face the fact that they occur, and that they are probably all the more risky where children engage in them against the law. It is really not so obvious, therefore, that children should be denied legal autonomy. A deeper examination of the broader context of the denial of children’s autonomy is beyond the scope of this book. But it is inescapable that the adult/child legal divide is clumsy, ill-conceived and based on flawed assumptions. Greater nuance and flexibility is needed where problems arise, including in best interest proceedings. It is therefore important to turn to perhaps the 164 See Lansdown, note 149, for consideration of other possibilities. 165 In the uk, for example, a quarter of teenage girls and approximately a third of teenage boys engage in sex before the age of sexual consent. See the dryly worded Editorial, “Sex, Health, and Society: Ensuring an Integrated Response” 382 The Lancet 1757 (2013): “[T]he President of the uk Faculty of Public Health, John Ashton, made the unsurprising claim that adolescents have sex. He went on to propose that the age of consent for sex be reduced to 15 years … Within 24 hours the Government and Opposition leaders had all condemned him … Britain seemed unable to have a mature debate, informed by evidence, about sexual health.” 166 Rob Kievit, “Dreams Scuppered for Dutch Sailor Girl” bbc News Online (29 Aug. 2009). Available at http://news.bbc.co.uk/1/hi/world/europe/8227250.stm (last accessed 6 Apr. 2017); Dutchnews.nl, “Teen Solo Sailor Laura Made a Ward of Court” Dutchnews.nl (30 Oct. 2009). Available at http://www.dutchnews.nl/news/archives/2009/10/teen_solo _sailor_laura_made_a/ (last accessed 6 Apr. 2017). 167 Douglas Stanglin, “Dutch Court oks Bid by 14-year-old to Sail Solo around the World” usa Today (27 Jul. 2010). Available at http://content.usatoday.com (last accessed 6 Apr. 2017).

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only area where serious efforts have been made to provide responses to such problems – medical law. 5

What We Can Learn about Autonomy from Medical Law

Autonomy – of both adults and children – has been examined most particularly in the area of healthcare. Medical law is about fundamental life and death decisions more often and more clearly than other areas of the law.168 A system of value pluralism exists in medico-legal norms whereby it is recognised that perspectives on moral, spiritual, and other interests will vary.169 The respect for autonomy in this arena is enormous – too much so, some argue.170 An adult may consent to171 or refuse treatment “for any reason or no reason whatsoever.”172 In England and Wales and in many other comparable jurisdictions, the law regards ‘mental capacity’ as a crucial element of individual autonomy. These laws therefore use the capacity standard to create the divide between legally effective and legally ineffective decisions.173 The standard acts as gateway to an individual’s right to autonomy, determining whether or not autonomy will be upheld in an individual’s case.174 It is important therefore to examine what capacity is in medical law, how it has been treated by the courts, and where children fit into the picture. There is a “sharp distinction” in that those considered to have capacity must have their decisions accorded absolute respect, those who are deemed not to have capacity have best interest decisions made on their behalf.175 The binary division of patients, Donnelly emphasises, assigns just two categories – capable and incapable.176 The case law demonstrates however that it is not always that straightforward, that nuance does exist, and there are calls that this 168 169 170 171 172 173 174

175 176

Foster, note 31, at 94. Coggon, note 50. Section entitled “Patients with Capacity”. Foster, note 31; Herring, note 15. Cave and Wallbank, note 7, at 434 state that: “Consent has three elements: there must be capacity, understanding and voluntariness…”. See further Coggon, note 50, at 239. Genevra Richardson, “Mental Disabilities and the Law from Substitute to Supported Decision-Making” 65 Current Legal Problems 333 (2012), at 334. Mary Donnelly, Autonomy, Capacity and the Limitations of Liberalism: An Exploration of the Law Relating to Treatment Refusal (Unpublished Ph.D. Thesis, University of Cardiff, 2006), at iii. Herring, note 15, at 2. Donnelly, note 174, at iii.

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be made more legally explicit. Children hold a very complex position in this context (this is examined in detail in Section 7). It is important to understand the notion of capacity, and the treatment of adults where conflicts over their ‘best interests’ arise, in order to adequately assess how children’s autonomy is approached in best interest decisions made by courts on their behalf. The Elusive ‘Capacity’ Standard as the Gateway to Autonomy in Medical Law The emphasis on capacity as a prerequisite for autonomy is enormous. Capacity is such a simplistic concept that there is an assumption that it is unproblematic;177 one has capacity or one does not, black and white, yes and no. In reality it is exceptionally difficult to negotiate this area, and this is acknowledged in the fact that for most purposes, even for adults with cognitive impairment,178 there is a presumption of capacity.179 It seems that the consensus appears to be that, as capacity is so difficult to determine and autonomy so important to uphold, it is safest to err on the side of protecting autonomy unless it is inescapable that overriding it is necessary (the same does not apply for children however).

5.1

5.1.1 ‘Capacity’ Language: As Muddled as the ‘Right to be Heard’ Given its importance as a concept it is surprising then, that capacity is so indeterminate. It is talked about with a perplexing array of terminology – for example ‘legal’ or ‘mental’ capacity; and it is sometimes used interchangeably with the terms ‘competence’, ‘decision-making’ or ‘ability’. There is no well-accepted measure of capacity. The notion is highly contested on the bases of being overly-subjective, unrealistically binary, and hypocritically surmountable,180 in that it is easy to determine that someone lacks capacity if one wishes to.181 177 Freeman, note 33, at 15. 178 A person lacks capacity under the Mental Capacity Act 2005 in England and Wales if they cannot make a decision due to “an impairment of, or a disturbance in the functioning of, the mind or brain.” Mental Capacity Act, Section 2. 179 See for example the un Convention on the Rights of Persons with Disabilities, the Mental Capacity Act 2005 in England and Wales, and in a Canadian case the court noted the need to “avoid the error of equating the presence of a mental disorder with incapacity.” Starson v Swayze [2003] 1 scr 722, at para. 77. 180 See for example Foster, note 31; Herring, note 15; Donnelly, note 174; Coggon, note 50. 181 Foster, note 31, outlines this well in the cases of Re L. (Patient: Non-Consensual Treatment) [1997] 2 flr 837; and Re m.b. (An Adult: Medical Treatment) [1997] ewca Civ 1361, described below Section 5.2.1. See also in the context of children Re E. [1993] 1 flr 386 and Nicholas Lennings, “Forward, Gillick: Are Competent Children Autonomous Medical

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Nevertheless, as capacity remains such an important concept, it is examined in this section to enable a more thorough consideration of the approaches of the courts to children’s autonomy in best interest proceedings. The terms ‘capacity’ and ‘competence’182 are often used interchangeably to refer to the legal standard which can be confusing,183 so I will have to settle on a single term. The term ‘capacity’ is now perhaps most often used to denote the standard for the capacity of someone to make legally effective decisions. To have such capacity there is a threshold of cognitive abilities one must cross.184 There is a presumption for over 18s that they have already reached it;185 where there is doubt the individual’s cognitive abilities may be assessed. I will therefore use this term ‘capacity’ to refer to legal capacity. There is also confusion about decision-making ability in the more colloquial or rhetorical sense, which can, unlike legal capacity, be seen as lying on a scale,186 referring to different levels of patients’ abilities.187 Although individuals

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184 185

186 187

Decision Makers? New Developments in Australia” 2 Journal of Law and the Biosciences 457 (2015). Even though we have the Mental Capacity Act, and children’s ‘capacity’ is now discussed, we simultaneously have the term ‘Gillick competence’ (see Section 6 below); see also Cave note 8 and Freeman, note 33, at 15. Philip Bielby, “The Conflation of Competence and Capacity in English Medical Law: A Philosophical Critique” 8 Medicine, Health Care and Philosophy: A European Journal 357 (2005). Cunningham states that “‘[c]apacity’ is synonymous with ‘competency.’ They both refer to the ability of the individual to make a decision.” Larry Cunningham, “A Question of Capacity: Towards a Comprehensive and Consistent Vision of Children and Their Status Under Law” 10 uc Davis Journal of Juvenile Law and Policy 275 (2006), at 280. Hein et al. use the terms ‘competence’ and ‘decision-making capacity’ interchangeably to refer to the clinical assessment of capacity. Irma Hein et al., “Why is it Hard to make Progress in Assessing Children’s Decision-Making Competence?” 16 bmc Medical Ethics 1 (2015). Herring and Wall use ‘capacity’ in the legal sense and use ‘autonomous’ to refer “to the capacity necessary to be able to exercise autonomy as understood in the philosophical literature.” Herring and Wall, note 52, at 699. See Allen Buchanan and Dan Brock, Deciding for Others: The Ethics of Surrogate Decision Making. (Cambridge University Press, 1990). As noted above, children are generally not considered to have crossed the threshold to legal capacity, with some exceptions, for example the Family Law Act 1969 in England and Wales states that children can consent to medical treatment from age 16. Ibid. See for example Thomas Grisso, Paul Appelbaum, and Carolyn Hill-Fotouhi, “The MacCAT-T: A Clinical Tool to Assess Patients’ Capacities to Make Treatment Decisions” 48 Psychiatric Services, 1415 (1997). Though they refer to “decision-making capacities” I will use the term ‘decision-making abilities’ to avoid confusion with mental capacity in the legal sense of having passed a capacity threshold.

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(children included) might lack legal capacity, most people (even infants) will have decision-making abilities for many purposes, such as choosing what to eat and how to behave in a particular context.188 I will refer to ‘decisionmaking ability’ therefore to consider children’s abilities in a more casual sense, and differentiate this from the notion of children as being in possession of capacity in the legal sense. So ‘capacity’ for the legal standard; ‘decisionmaking abilities’ for everything else. This is admittedly not perfect, particularly since ‘competence’ is often used in literature and other domestic legislation to denote the legal standard (and also, confusingly, the sliding scale).189 It will have to do, however. All of the terminology concerning capacity is so confused because, like the ‘right to be heard’ (also referred to as autonomy, participation, voice, having a say, having a determinative say and so on), there are many different contexts in which our decision-making abilities can be employed. The vast majority are every day choices which do not enter the legal arena, and therefore we are not always referring to ‘legal capacity’ when we are talking about a person’s decision-making abilities. Also like the ‘right to be heard’ the confusion of terminology reflects how little we know about capacity and how to assess it. 5.1.2

The Challenges of Capacity Assessment Although I didn’t mind dying, I really didn’t want to, it’s just I wanted to lose weight, that was the main thing.190

The emphasis on capacity as a gateway to autonomy is a matter of some contention, something which arose for example in the context of the drafting of the un Convention on the Rights of Persons with Disabilities.191 Disability groups argued that capacity is socially constructed, that it has been used in the past to exclude marginalised groups such as women, and that it privileges cognitive abilities, rendering ‘incapacitated’ those who make decisions on an emotive 188 See further Cunningham, note 183, at 280. 189 Also, there are other concepts such as ‘understanding’ which have slightly different meanings and are not exactly captured by ‘decision-making ability’. 190 (Adult) interviewee in Jacinta Tan et al., “Competence to Refuse Treatment in Anorexia Nervosa” 26 International Journal of Law and Psychiatry 697 (2003), at 702. 191 See Jill Stavert, “The Exercise of Legal Capacity, Supported Decision-Making and Scotland’s Mental Health and Incapacity Legislation: Working with crpd Challenges” 4 Laws 296 (2015), at 5.

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basis.192 This is highly relevant to children, as outlined in Chapter 6. In best interest proceedings they inevitably make decisions based on how they feel; something which is often held against them. Foster refers to “the laughably artificial view that the medical law tends to have of capacity” as something which one does or does not have. Autonomy compounds this over-simplification, permitting us to ignore many of the intriguing, challenging and often baffling questions about what exactly might constitute an individual with capacity – something which Foster believes does not exist.193 Yet at the same time, it is inevitable that there must be some appreciation of the need to determine whether an individual has wishes or not, and ­whether they should be followed, where this might be unclear. Herring and Wall ­explain the importance of understanding capacity in the context of ­vulnerable adults: It is a terrible thing to have decisions taken from you when in fact you have the ability to make them yourself. It is also a terrible thing to be held to have that ability where you do not, and to be abandoned to make decisions which hurt yourself and the ones you love.194 The same applies to children. It can, therefore, be very important to have a means through which to answer difficult questions which arise when it comes to determining whether an individual is capable of making a decision themselves. In medical practice, capacity to consent to treatment is usually assessed implicitly and without a given standard.195 It is generally considered uncomplicated, therefore. There is some guidance on how it is to be assessed (considered below) where things might not be straightforward, for example where there is doubt over an individual’s decision-making ability and where they are refusing treatment. A test involving four elements is deemed useful by many when it comes to determining mental capacity: “[T]o communicate a choice, to understand the relevant information, to appreciate the medical consequences of the situation, and to reason about treatment choices.”196 In the test for

192 See Barbara Carter, Supported Decision-Making Background and Discussion Paper (Office of the Public Advocate, Victoria, 2009). 193 Foster, note 31, at 93. 194 Herring and Wall, note 52, at 698. 195 Irma Hein et al., “Feasibility of an Assessment Tool for Children’s Competence to Consent to Predictive Genetic Testing: a Pilot Study?” 24 Journal of Genetic Counselling 971 (2015). 196 Ibid. Emphasis added. See also Irma Hein, “Accuracy of the MacArthur Competence Assessment Tool for Clinical Research (MacCAT-CR) for Measuring Children’s Competence to Consent to Clinical Research” 12 P[a]ediatrics 168 (2014); Priscilla Alderson, “Competent Children? Minors’ Consent to Health Care Treatment and Research” 65 Social Science and Medicine 2272 (2007), at 2278; and Lansdown, note 149.

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capacity under the Mental Capacity Act of England and Wales,197 for example, incapacity is defined as an inability to understand, retain and use or weigh information relevant to a given decision, and an inability to communicate the decision.198 Beauchamp and Childress suggest seven levels of incapacity: i. The inability to evidence a preference or a choice; ii. The inability to understand one’s situation or relevantly similar situations; iii. The inability to understand disclosed information; iv. The inability to give a reason; v. The inability to give a rational reason; vi. The inability to give reasons where risk and benefit have been weighed; vii. The inability to reach a reasonable decision, as judged, for example, by a reasonable person standard.199 Yet such concepts, as noted above, are to a large extent in the eyes of the beholder. To consider the seven levels of Beauchamp and Childress: What is “a rational reason” (point v)? To what extent do people generally weigh risks and benefits in decisions? How do we know what a “reasonable person” would do? Large amounts of the population smoke, people frequently self-harm,200 people regularly ‘choose’ do all sorts of seemingly counter-productive and illogical things. To place the complexities of these sorts of choices in the context of children’s capacity, Freeman, considering this same list, points to the illogical nature of expecting the higher functions of children, when many adults would not reach them: Even small children can show a preference, and most children can ‘understand’ a situation. Many can ‘understand’ disclosed information, and many can give reasons, though we might not be convinced by them. But 197 Mental Capacity Act 2005. 198 Mental Capacity Act 2005, Section 3. Under Section 1(3) of the Act, however, before incapacity can be established, all practicable steps should be taken, without success, to help the individual to make the decision. See further Mackenzie and Watts, note 8, at 99. 199 Tom Beauchamp and James Childress, Principles of Biomedical Ethics (5th edn, Oxford University Press, 2001). 200 Galit Geulayov et al., “Mental Health Epidemiology and Trends in Non-Fatal Self-Harm in Three Centres in England, 2000–2012: Findings from the Multicentre Study of Self-Harm in England” 6 British Medical Journal Open (2016). Available at http://bmjopen.bmj.com/ content/6/4/e010538.full (last accessed 21. Feb. 2017).

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how many adults get any further? Most of the adult population cannot think rationally or think in such a way as to maximise benefit or minimise loss or reach a reasoned decision. If rights were to hinge on competence at any of the higher levels depicted here, few would have them. But, of course, we do not do this.201 These measures set extremely high barriers for those who will be tested in accordance with them, as opposed to the rest of us who are presumed to have capacity.202 An increasing number of tools have been developed to assess decisionmaking abilities for consent to treatment and clinical research in adults203 – an effort which on the one hand lends a more scientific approach to determining capacity, but on the other perhaps leads us further down the road of attempting to define the undefineable. It is often described as ‘measuring capacity’ but in fact it is just part of a holistic process involving other measures. The MacArthur Competence Assessment Tool for Treatment (MacCAT-T) tools are considered the best means for measuring capacity in adults.204 The MacCAT-T measures decision-making capacities by operationalising the four criteria (accepted as denoting capacity)205 into an interview format.206 The final score is not a statement of capacity/no capacity but rather indicates the degree of decision-making ability.207 The medical professional still has to make a 201 Freeman, note 182, at 14. 202 Foster, note 31, at 93. 203 Laura Dunn et al., “Assessing Decisional Capacity for Clinical Research or Treatment: A Review of Instruments” 163 American Journal Psychiatry 1323 (2006). 204 Ibid. 205 The four criteria, as noted above are: Understanding information, understanding alternatives, understanding consequences and expressing a choice. 206 There are three phases in applying the MacCAT-T tool – first the professional gathers information about the patient, treatment and related risks and benefits, and these are input into the interview-questionnaire with the patient. The interview is then conducted, and finally the answers to the questions are scored in relation to the four areas. Ineke Bolt and Marieke van Summeren, “Competence Assessment in Minors, Illustrated by the Case of Bariatric Surgery for Morbidly Obese Children” 28 Best Practice and Research Clinical Gastroenterology 293 (2014), at 299. 207 The tool has been found to be easy to use, to facilitate comparable scores by different raters, and apparently to provide valid indications of where a participant’s decisionmaking is impaired. See for example Thomas Grisso and Paul Appelbaum, “Values and Limits of the MacArthur Treatment Competence Study” 2 Psychology, Public Policy and Law 167 (1996); Paul Appelbaum and Thomas Grisso, “The MacArthur Treatment Competence Study i: Mental Illness and Competence to Consent to Treatment” 19 Law and

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determination in the end considering all factors (including results according to the instrument). In a 2013 review of nineteen instruments to assess patient capacity to consent, it was found that “only a small number of instruments were found to have demonstrated both reliability and validity.”208 An approach to the assessment of capacity which is strictly formulaic will be unlikely to capture the nuance of specific individual qualities. The effects on choice of certain conditions – anorexia for example – are also difficult to measure with these instruments (considered further below). It is emphasised that experienced clinical judgment should be supported by, rather than replaced by capacity assessment instruments.209 Although such instruments will be useful for lending some transparency and consistency to capacity assessment, humans are not machines and cannot be definitively measured in a mechanical way. One of the most challenging issues with measures of capacity is the extent to which values – that is the substantive content of ideas rather than reasoning abilities – could or should be considered in capacity assessment. Bolt and van Summeren state that in order to have capacity, as well as demonstrating cognitive abilities such as understanding and reasoning, any test should consider the emotions and values held by the individual in relation to the question.210 Alderson points to the fact that consent, which is often what a search for decision-making capacity is being made in relation to, is not an immediate or solely cognitive choice: It involves an emotional journey, richly informed by moral emotions from fear and rejection, sadness, shock and perhaps horror at the prospect of surgery, towards trust and confidence in the clinical team, belief that the untreated condition can be worse than the treatment, and courage to consent.211

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Human Behavio[u]r 105 (1995); Thomas Grisso et al., “The MacArthur Treatment Competence Study ii: Measures of Abilities Related to Competence to Consent to Treatment” 19 Law and Human Behavio[u]r 127 (1995); and Thomas Grisso and Paul Appelbaum, “The MacArthur Treatment Competence Study iii: Abilities of Patients to Consent to Psychiatric and Medical Treatments” 19 Law and Human Behavio[u]r 149 (1995). Scott Lamont, Yun-Hee Jeon and Mary Chiarella, “Assessing Patient Capacity to Consent to Treatment: An Integrative Review of Instruments and Tools” 22 Journal of Clinical Nursing 2387 (2013). Ibid. Bolt and van Summeren, note 206, at 296–8. See also Herring and Wall, note 52, at 698. Alderson, note 30.

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Obviously enough, values feature among the reasons relied upon by patients when they weigh risks and benefits of potential options for treatment.212 Whether one’s choices are ‘logical’ depends on one’s values. Individuals with eating disorders, for example, can score very highly on understanding and reasoning, whilst starving themselves to death.213 Anorexia nervosa is a condition which does not preclude patients from insightfully perceiving and discussing their situation and relevant decision-making processes.214 If you would rather die than put on weight, then your values dictate that you risk your life to achieve your goals – this is arguably rational.215 Yet there are clearly questions concerning your ability to consent to treatment where you would choose death over eating (or treatment). Therefore it is difficult in practice to avoid a consideration of values when measuring capacity.216 Whether to consider values in decision-making abilities is a contested matter, however, as relying on ‘values’ goes beyond a cognitive approach,217 and encourages value judgments on the part of the tester which could undermine autonomy promotion.218 The Mental Capacity Act of England and Wales, for example, does not provide for assessment of the set of values and preferences behind a decision.219 Many commentators disagree – Charland argues that without incorporation of the fact that patients rely on values for reasoning, clinical medical tools are empirically invalid.220 212 Louis Charland, “Anorexia and the MacCAT-T Test for Mental Competence: Validity, Value, and Emotion Article” 13 Philosophy, Psychiatry and Psychology 283 (2006), at 283. 213 See Charland, note 212: “…[I]n anorexia, thinness is usually pathologically overvalued.” At 284. See also Jacinta Tan et al., “Competence to Make Treatment Decisions in Anorexia Nervosa” 13 Philosophy, Psychiatry and Psychology 267 (2006); Tan et al., note 190 and also Foster, note 31, at 91. 214 Jacinta Tan et al., “Competence to Make Treatment Decisions in Anorexia Nervosa” ibid. See also Foster, note 31, at 91. 215 In the research of Tan et al., for many sufferers, the value of anorexia was such that the risk of death was of less importance than the disorder. Tan et al., note 190, at 702. 216 Banner and Szmukler, note 217. 217 For an interesting consideration of the way values could be approached, see Natalie Banner and George Szmukler, “Radical Interpretation’ and the Assessment of DecisionMaking Capacity” 30 Journal of Applied Philosophy 379 (2013). 218 In the context of determinations of capacity for adults, see Case’s consideration of the concept of ‘insight’ as a problem for autonomy promotion and a potential source of value judgments. Paula Case, “Dangerous Liaisons? Psychiatry and Law in the Court of ­Protection – Expert Discourses of ‘Insight’ (and ‘Compliance’)” 24 Medical Law Review 360 (2016). 219 Herring and Wall, note 52, at 704. 220 Charland, note 212, at 283.

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To conclude, an examination of tools for measuring decision-making abilities of adults points to the enormous potential for subjectiveness, an undue focus on cognitive abilities and a failure to account for values (and how these dictate a person’s rationalising). The difficulties encountered in this area indicate that, if measuring the decision-making abilities of adults is so contested, it will be even less likely that we may confidently measure those of children. Yet one important point emerges – the decision-making abilities of adults and children may not be so different after all. The standards for measuring those of adults epitomise the adult/child (and capacity/incapacity) divide as they attempt to categorise adults within it. Adulthood is defined, after all, by having the legal right (‘capacity’) to make one’s own decisions. The standards also challenge the adult/child divide, however, as the tools demonstrate that it does not stand up to scrutiny. 5.2 What Resistance is There in Medical Law to the Autonomy Priority? The myth inherent in the capacity/incapacity divide has led some theorists to denounce the supremacy of the principle of personal autonomy in medical law,221 arguing that blindly venerating autonomy at the expense of other important moral principles such as welfare is illogical and even hypocritical.222 Stirrat and Gill go so far as to state that the high regard for autonomy just replaces one paternalistic approach with another: “[It may] lead some doctors to consider mistakenly that unthinking acquiescence to a requested intervention against their clinical judgement is honouring ‘patient autonomy’ when it is, in fact, abrogation of their duty as doctors.”223 There is also a growing sense that allowing a person’s stated desires without understanding their motivations is not really upholding autonomy.224 Therefore the validity of ‘autonomy’ – in the sense of having your wishes respected – is increasingly questioned in the medical law context. The consequences for understandings of childhood is that if adults are not as autonomous as we assume, then neither are children so lacking in autonomy. 5.2.1 The Courts Override Irrational Adults in Some Medical Law Cases It appears at times as if courts in England and Wales struggle to rationally apply the binary approach to autonomy, whilst simultaneously achieving a just 221 See for example Foster, note 31. 222 Foster states, for example, that academic medical lawyers have accorded to autonomy a status which is unwarranted both ethically and legally. Foster, note 31. 223 Gordon Stirrat and Robin Gill, “Autonomy in Medical Ethics after O’Neill” 31 Journal of Medical Ethics 127 (2005), at 127. 224 See for example Herring and Wall, note 52, at 704.

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decision. Sidaway determined that those with capacity have every right to make an irrational medical decision.225 Yet it seems that it is not that straightforward in reality. Coggon summarises the situation as thus: “In blunt terms, patients are ostensibly free to act irrationally, but in reality only in accordance with an unspecified range of ‘irrationalities’.”226 Under the Mental Capacity Act 2005227 the only circumstances in which a finding of incapacity can be made is that relating to “an impairment of, or a disturbance in the functioning of, the mind or brain.”228 However in Foster’s view courts have overridden in some instances the irrational decisions of patients who have not been suffering from such impairment or disturbance. In cases such as Re m.b. (An Adult: Medical Treatment)229 for example, consent was dispensed with in order to treat pregnant women in need of life-saving intervention.230 In these cases, though the women did want to undergo the necessary Caesarean sections, they were irrationally refusing to consent due to a fear of needles. The court held in Re m.b. that the fear of needles paralysed the will and destroyed the capacity to make a decision for the purpose of the treatment in question – she was “temporarily incompetent”.231 Foster disagrees that the patient’s fear in m.b. did in fact constitute a mental disorder which rendered her incapacitous.232 He argues therefore that the m.b. decision was legally wrong but that that the overriding of the patient’s wishes was undoubtedly morally right.233 So although under the law patients in these cases had capacity, argues Foster – they had no disease of the mind (he claims) and they understood the consequences of what they were doing – the judge had to find them as lacking in capacity in order to override their autonomy: In an effort to both apply the law of consent and to do the right thing (that is, to save these women’s lives) the courts “were 225 Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985] ac 871, at 904–5. 226 Coggon, note 50, at Section ii. 227 Section 2. 228 See for example A Local Authority v E. [2012] ewhc 1639. 229 [1997] ewca Civ 1361. 230 See also Re L. (Patient: Non-Consensual Treatment) [1997] 2 flr 837. 231 Para. 30. The court relied upon reasoning in Re T. (An Adult)(Consent to Medical Treatment) [1993] Fam 95 at 102 in which the court stated that “temporary factors” may include shock, pain or drugs, and they may completely erode capacity. 232 One might disagree with Foster on this point because in m.b. the judge determined that the patient did have a mental disorder, albeit temporarily (at para. 30). Yet the judgment is certainly light on explanation of how that was so. 233 Foster, note 31, at 91.

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willing to find incapacitate women who by the normal canons of capacity were perfectly competent to make a free decision.”234 Foster is essentially highlighting the thoughts and factors influencing such legal decisions which may not be explicit in the judgments, such as the preservation of life and paternalistic prevention of fatally irrational decision-making. He argues that the courts cannot have it both ways – that deifying autonomy and upholding justice sometimes simply cannot go together.235 The courts have, on the other hand, determined to uphold personal autonomy in some cases where patients are (seemingly) irrationally refusing lifesaving treatment. For example in King’s College Hospital nhs Foundation Trust v C.,236 a socialite attempted suicide when she discovered she had cancer. The attempt failed but she required dialysis to recover. She decided that she would rather die than undergo dialysis, as she did not wish to grow old or to face financial problems: C’s decision is certainly one that does not accord with the expectations of many in society. Indeed, others in society may consider C’s decision to be unreasonable, illogical or even immoral within the context of the sanctity accorded to life by society in general. None of this however is evidence of a lack of capacity … As a capacitous individual C is, in respect of her own body and mind, sovereign.237 The Court could hypothetically have compared the genuine fear of C of a life of illness238 to the situation in m.b., where the fear overwhelmed C’s capacity to refuse treatment. It could have reasoned that this somehow also fell under the relevant legislation, but the court did not. Therefore it appears that, in reality, there is more at play in what the courts are doing than a simply binary approach to capacity. Treatment will be ordered for capacitous patients who really want to live. Autonomy will be upheld for capacitous patients who really want to die. It appears that respect for autonomy is applied with selectivity. The courts will still, in some circumstances at least, uphold the decisions of individuals to irrationally choose death. Coggon similarly identifies an inconsistent approach to autonomy, whereby the different characteristics of the agents affected the outcomes of approaches 234 Ibid. 235 Ibid, at 92. 236 [2015] ewcop 80. 237 Ibid, para. 97. 238 Ibid.

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to autonomy. The approach of the courts to the autonomy of convicted criminals betrays, for example, a punitive inclination towards this group, Coggon argues.239 He provides the example of Ms. T, who refused blood products as she believed her blood was evil and that any blood provided to her would also turn evil, was nevertheless given the blood transfusion against her wishes on the basis that her beliefs demonstrated a lack of capacity.240 On the other hand, violent and incarcerated convict Mr. W, who was severely harming himself (to the extent of risking his life) in order to be removed to hospital, was held capacitous (and consequently not removed to hospital) on the basis that his own motivations, rather than a mental disorder, were the cause of his self-harm.241 In the case of Ms. T, Coggon points-out, the court determined that her objectively mistaken values were causing her self-harming behaviour. Yet the same could be said of Mr. W. Coggon notes: Nonetheless he was allowed to continue to harm himself because he understood the implications of what he was doing; that it could kill him. Ms T also understood this, but it served her no respect. This can be explained if we see Mr W being punished for having a reprehensible motivation.242 It seems that, to some extent at least, similar behaviour is approached – and determinations of capacity made – differently, depending on the nature of the case rather than the nature of the reasoning of the individual in question (which dictates whether they are deemed to have a ‘mental disorder’). In particular, the needle fear cases such as m.b.243 demonstrate that where lives are threatened unacceptably, courts will find ways to deem individuals incapacitated. This is similarly found in some cases concerning children,244 outlined below. Autonomy is limited in these situations where the courts determine that it should be. And perhaps Foster is right – it is better off that we face up to the facts that: (1) Capacity is not a yes or no game, and (2) Sometimes even individuals who have capacity should have their autonomy overridden in order to save them from disaster. This is as relevant for children as adults. Whether or not they have capacity (perhaps deemed ‘Gillick competent’), they may still need protection from choices which lead to death or serious harm. Likewise, it 239 Coggon, note 50. 240 The nhs Trust v Ms T. [2004] wl 1174198. 241 In Re W. [2002] wl 32068016. 242 See further Coggon, note 50, at 251. 243 [1997] ewca Civ 1361. See also Re L. (Patient: Non-Consensual Treatment) [1997] 2 flr 837. 244 Re E. [1993] 1 flr 386; Re S. [1994] 2 flr 1065.

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should not be required that they have reached full capacity before a court will find in favour of their wishes, or before a court will give their wishes ‘significant weight’.245 5.2.2 Vulnerable Adults: Blurring the Autonomy Dichotomy The recent emergence of the status of ‘vulnerable adults who have capacity’ has brought even greater nuance to the notion of autonomy and to the duty of the state to protect. A vulnerable adult can be defined as an individual over 18 years “[w]ho is or may be in need of community care services by reason of disability, age or illness; and is or may be unable to take care of unable to protect him or herself against significant harm or exploitation”.246 In England and Wales, for adults who have capacity, but are considered to be ‘vulnerable’, the inherent jurisdiction of the courts247 can now be used where authorities seek to protect them.248 Outside of the medical law context, adult vulnerability is also being recognised. It is significant that in England and Wales the state prosecutor was in 245 See Chapter 5, Section 1.3.5.2. 246 Safeguarding Matters, Definition of Vulnerable Adult and Abuse. Available at: http://www .safeguardingmatters.co.uk/the-new-disclosure-and-vetting-service/in-the-news/recent -cases-relating-to-vulnerable-adults/ (last accessed 18 Aug. 2016). In the law of England and Wales a broad approach is taken. Section 59 of the Safeguarding Vulnerable Groups Act 2006 states that: “A person is a vulnerable adult if, having attained the age of 18, s/he – 1. is in residential accommodation, 2. is in sheltered housing, 3. receives domiciliary care, 4. receives any form of health care, 5. is detained in lawful custody, 6. by virtue of an order of a court, is under supervision per Criminal Justice Act 2003­ sections regarding community sentences; 7. receives a welfare service of a prescribed description, 8. receives any service or participates in any activity provided specifically for persons who has particular needs because of his age, has any form of disability or has a prescribed ­physical or mental problem. (Dyslexia, dyscalculia and dyspraxia are e­ xcluded disabilities), 9. has payments made to him/her or to an accepted representative in pursuance of ­arrangements under Health and Social Care Act 2012, and/or 10. requires assistance in the conduct of own affairs.” 247 This is a doctrine derived from English common law that a superior court has inherent powers to control the proceedings brought before it. It has been understood to give courts powers to take decisions to protect incapacitated and vulnerable adults. 248 Re b.j. (Incapacitated Adult) [2009] ewhc 3310.

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2015 given powers to bring charges if evidence is found of “controlling or coercive behaviour” within intimate or family relationships.249 Such trends, like the needle phobia cases, point to a movement away from the binary approach to autonomy. Herring and Dunn consider the legal approach in England and Wales to (1) children, (2) adults lacking capacity and (3) vulnerable adults with capacity and note: [I]n all three of these jurisdictions a move away from an approach which is based entirely on either autonomy or paternalism towards one which takes a middle approach, seeking to ensure there is a balance for children, vulnerable adults and those lacking capacity, between their rights of protection from harm and their rights of respect for autonomy, control and choice within their lives.250 On considering the development of laws in relation to these three groups, they conclude that the law has been neither purely paternalistic, nor purely autonomy-based, but instead has sought to strike a balance between the two.251 Consequently Herring proposes an alternative approach to the treatment of the autonomy of vulnerable adults, rejecting the dichotomous, all-or-nothing approach in favour of a scalar one which appreciates the nuances of ‘capacities’.252 First, Herring argues that, rather than solely focusing on whether an individual has capacity, courts should “weigh up the harm that might result from a decision.”253 He argues that the Mental Capacity Act of England and Wales can prevent consideration of the outcome of a vulnerable person’s decision in assessing capacity. Yet the courts would be justified in using its inherent jurisdiction to protect vulnerable adults who have been found to have capacity where great harm would arise from a decision.254 This is the alternative to the capacity/incapacity divide – that greater attention would be given to the likely consequences of the actions of a vulnerable 249 Under Section  76 of the Serious Crime Act 2015. Such behaviour is defined as causing someone to fear (on at least two occasions) that violence will be used against them, or generating serious distress that affects substantially their daily activities. 250 Herring and Dunn, note 138, at 530. 251 See Herring and Dunn, note 138, at 538. 252 Herring, note 15, at 2. 253 Ibid. 254 Herring and Wall, note 52. There are those, however, who disagree with the increase in the focus of the courts of England and Wales on vulnerability rather than capacity, see Michael Dunn, Isabel Clare and Anthony Holland, “To Empower or to Protect? Constructing the ‘Vulnerable Adult’ in English Law and Public Policy” 28 Legal Studies 234 (2008).

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person, rather than holding solely ‘capacity’, in all of its uncertainty, as determinative of whether one’s autonomy should be overridden. This is why the children’s autonomy principle focuses on harm, rather than capacity, as the priority for decisions about whether children’s choices can be overridden.255 5.3 Concluding Thoughts on the Fluidity of Approach to Adult Autonomy There is a strong inclination on the part of legislators, practitioners and courts to uphold (or at least to be seen to be upholding) adult autonomy. Adults will be permitted to make irrational choices with drastic, and sometimes gruesome, consequences.256 Yet where courts are confronted with a scenario where it would be morally wrong to abandon someone to their fatally irrational autonomy, judges may engage in some legal acrobatics to avoid tragic, avoidable deaths, where a court order overriding autonomy would resolve the situation (and enforce medical treatment).257 This is important for consideration of children’s autonomy because it points to an (albeit roundabout) acknowledgement of the limited nature of the principle of the primacy of autonomy. Although a person with capacity can in theory be as irrational as she wishes, in reality courts may override her autonomy in order to save her life. Some theorists are calling for greater explicit acknowledgement of this.258 The logical conclusion is, if adults, who legally have capacity, may sometimes be denied autonomy, then we must consider the converse – whether there are instances in which it would be unjustifiable not to uphold the wishes of children (even though they do not legally have capacity).259 It seems that legislators should heed the call to acknowledge that capacity, and therefore autonomy, are more fluid than we wish to admit. It could then also be acknowledged that blanket denial of autonomy for children on the flawed basis of the capacity priority is equally inadequate.

255 See Chapter 6. 256 See Kings College Hospital nhs Foundation Trust v Y. [2015] ewhc 1966 and In Re W. [2002] wl 32068016. 257 See for example Re m.b. (An Adult: Medical Treatment) [1997] ewca Civ 1361 and Re L. (Patient: Non-Consensual Treatment) [1997] 2 flr 837. 258 Coggon, note 50, and Herring, note 15. 259 Children may be deemed ‘Gillick competent’ but as noted below this device is little-used, poorly understood, overridden where convenient, and in any case (and for all of those reasons) should not be the primary focus within the children’s autonomy principle.

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Children’s Autonomy in Medical Law (Compared to Other Areas of Law): A Different Ball Game? I’m not a normal 13-year-old … I’m a deep thinker. I’ve had to be, with my illness. It’s hard at 13, to know I’m going to die, but I also know what’s best for me.260

Of course this acceptance of fluidity between capacity and lack of capacity for children already occurs to some extent in medical law. Children’s autonomy receives greater respect and attention in medical law than in any other area,261 and children frequently ‘consent’ to medical treatment. Courts are reluctant to enforce treatment on them. There is, admittedly, a great deal to criticise about the treatment of under-18s even in this arena however. Children’s refusal of medical treatment, even where it is determined that they have capacity or ‘Gillick competence’262 (as it is often referred to for children) can be overridden more easily than that of adults. Nevertheless the contrast with other types of best interest decisions made by the courts on behalf of children is stark. In areas like family law, courts hardly see the need to comment at all on how children’s wishes were analysed or treated.263 Yet in medical law, things are very different indeed. Though there is a baffling array of approaches globally to children’s consent to medical treatment, on a fundamental level children’s autonomy is generally treated with respect. In this section, the ways in which courts approach children’s wishes in medical law will be considered, and potential lessons for other areas of the law concerning children’s best interests will be identified. 6.1 Approaches to Children and Consent to Treatment Approaches to the ability of under-18s to consent to medical treatment vary widely across jurisdictions. In Greece and Slovakia, for example, the age is set at the age of legal majority – 18 years. Other jurisdictions have set the age of consent under 18 years, for example in the uk264 and Spain (16 years) and 260 Hannah Jones, who refused a heart transplant at age 13 years, quoted in Patrick Barkham, “Hannah’s Choice” The Guardian (12 Nov. 2008). Available at https://www.theguardian .com/society/2008/nov/12/health-child-protection (last accessed 28 Nov. 2016). 261 This is the case in the Anglo-American legal tradition at least. Alderson, note 30. 262 This has recently (confusingly) been referred to as ‘Gillick capacity’ – see for example X. (A Child) [2014] ewhc 1871, para. 12. 263 See Chapter 6, Section 1.3. 264 Cave outlines the confusing scene for under-18s in England and Wales. Children of 16 and 17 years have the capacity to consent under Section 8 of the Family Law Reform Act

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Denmark (15 years). In other states, such as Czech Republic, decision-making capacity is evaluated on a case-by-case basis and weighed in accordance with age and maturity.265 In the us, state consent laws usually apply to all from 12 years, although some states only permit certain groups of under-18s – such as those who are married – to consent, and several states have no laws on this, instead relying on doctors to determine whether treatment can be provided to mature children without parental consent.266 In Ontario, Canada, a presumption in favour of capacity applies to both adults and all children.267 This is highly unusual and this deferent approach to children’s autonomy is somewhat controversial.268 It conflicts for example with the official position statement of the Canadian P[a]ediatric Society which states that children of “primary school age” lack the capacity to make their own health-care decisions.269 The approach to children’s consent is inconsistent, therefore, between and even within countries. Nevertheless the greater reluctance to override children’s wishes in this area is often in distinct contrast to the approach to children’s wishes in other areas such as family law.

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1969. Where 16/17-year-olds lack capacity, the Mental Capacity Act (intended for adults) contains a framework whereby best interest decisions can be made on their behalf. Those under 16 years may consent if they are considered ‘Gillick competent’. Yet the decisions of all under the age of 18 may be overridden by the parens patriea jurisdiction of the courts, that is the potential for the courts to act in the place of the parent of any child. Cave, note 8. Loes Stultiens et al., “Minors and Informed Consent: A Comparative Approach” 14 European Journal of Health Law 21 (2007), at 39 and Hein et al., note 183. Guttmacher Institute, An Overview of Minors’ Consent Law (Updated 1 Sep 2016). Available at: https://www.guttmacher.org/state-policy (last accessed 21. Feb. 2017). Ontario is different from other provinces in Canada in that all children can decide their own health-care decisions unless they are deemed by a doctor to lack capacity (the doctor’s decision can be appealed). See the child-friendly guide from Ontario’s Provincial Advocate for Children and Youth which explains health care consent. Provincial Advocate for Children and Youth, The Ultimate Health Rights Survival Guide (Provincial Advocate for Children and Youth, 2014). In Scotland, too, the Age of Legal Capacity Act Scotland 1991 (Section 2[4]) states that children may be deemed to have legal capacity in the view of the treating doctor. See Tim Alamenciak, “Ontario Law Allows Children to Determine Medical Care” The Star Online (20 Jan. 2015). Available at https://www.thestar.com/news/gta/2015/01/20/ontario -law-allows-children-to-determine-medical-care.html (last accessed 21. Feb. 2017). Canadian P[a]ediatric Society, Position Statement: Treatment decisions regarding infants, children and adolescents (1 Feb. 2004; Reaffirmed 1 Feb. 2016). Available at http://www.cps .ca/documents/position/treatment-decisions (last accessed 12. Dec. 2016). See also Snelling, note 134.

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In spite of the fact that states have generally set age limits in medical law and other areas for children’s consent to treatment and for access to rights such as the right to drive, clear empirical evidence regarding the decision-making of children at particular ages has not yet been established.270 The validity of tests for children’s decision-making abilities in the medical context is questionable, as is the validity of those for adults. Such tests are wide-ranging and contextdependent,271 and it is advised that they should only form part of a test for capacity.272 The lack of a reliable framework for practitioners means that, in medical law, they often operate on their personal perceptions rather than explicit, scientific criteria,273 and are often confused about how to actually apply the law.274 The primary standard for children’s capacity in medical law in England and Wales (and elsewhere275) derives from the leading case in the area of children’s autonomy – the infamous Gillick.276 It established a somewhat sparse standard according to which a court could measure children’s competence in the context of medical treatment, although it is sometimes emphasised that this judgment was made in the context of the use of contraception rather than consent generally. Essentially children should have “sufficient understanding and intelligence to enable him or her to understand fully what is proposed.”277 270 Hein et al., note 183. 271 Mental Capacity Act 2005. Part 1, Sections 1–3. Vic Larcher and Anna Hutchinson, “How Should Paediatricians Assess Gillick Competence?” 95 Archives of Disease in Childhood 307 (2010), at 307. 272 See Hein et al., note 183. 273 Imelda Coyne, “Consultation with Children in Hospital: Children, Parents’ and Nurses’ Perspectives” 15 Journal of Clinical Nursing 61 (2006). 274 See Section 6.3.1 below. 275 See Cave’s consideration of its application in Australia, note 8, 114. See also Lennings, note 181. In the New Zealand context see for example Amanda van Rooyen et al., “What Makes a ‘Competent’ Child?” 128 The New Zealand Medical Journal 1426 (2015) and Tim Grimwood “Gillick and the Consent of Minors: Contraceptive Advice and Treatment in New Zealand” 40 Victoria University of Wellington Law Review 743 (2010). 276 Gillick v West Norfolk and Wisbech Area Health Authority [1986] ac 112. See a similar standard which has emerged in Mexico in 2016. Jesús Aranda “scjn: Constitucional, Derecho de los Menores a Educación Sexual” La Journa en Lia (9 Nov. 2016). Available at http://www.jornada.unam.mx/ultimas/2016/11/09/scjn-constitucional-derecho-de-los -menores-a-educacion-sexual (last accessed 26 Nov. 2016). 277 Lord Scarman, [1986] ac 112 (253). Note that Herring and Gilmore interpret this not as requiring a full understanding of the treatment and consequences of going without treatment, but “that, in relation to consenting to treatment, the understanding required is merely an understanding of that which is proposed by way of treatment.” Gilmore and

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It is a highly criticised approach as it is considered to be ambiguous278 and outdated279 (these challenges are considered further below).280 Nevertheless it is important to note that the case involved a turning point in the treatment of children in medical law in some states, and indeed it is a case which is sometimes relied upon in the area of children’s rights more generally.281 The case involved careful consideration of children’s autonomy, an emphasis on the concept of the evolving capacities of the child, and an affirmation that parents hold children’s rights in trust, rather than having power over children for its own sake. Gillick distinguished children’s rights, views, consent and autonomy as a matter of importance, at least in medical law. 6.2 Language of Respect for Children’s Views in Medical Law In medical law the autonomy of children (particularly ‘mature’ children282) is taken seriously by judges, who are often at pains to provide reasons283 where their decisions override the wishes of a patient under the age of 18. The level of respect was aptly outlined in Re A. (A Child),284 in which a young person of 15 years (‘A’) had been vomiting without any clear medical explanation, in a context in which her mother was relatively unhelpful and noncompliant with A’s treatment. In order to prevent death, which would have been the eventual outcome of her symptoms, the hospital wished to insert a nasojejunal tube, something to which both A and her mother objected.285 The judge stated: “I start from the premise that a competent young person under the age of 16 years, who is able to understand all the relevant advice and Herring, note 7, at 10. Cave and Wallbank argue that Gillick envisaged a broader level of understanding. Cave and Wallbank, note 7. 278 Cave, note 8; Tim Grimwood, “Gillick and the Consent of Minors: Contraceptive Advice and Treatment in New Zealand” 40 Victoria University of Wellington Law Review 743 (2010). 279 Mackenzie and Watts, note 8, at 97. 280 Section 6.2. 281 Sometimes (though not often) reference is made to Gillick competence in other areas of the law, for example in Re S. it was mentioned (in passing) in the context of an echr Article 5 (deprivation of liberty) question. Re S. (A Child) [2010] ewhc B2, para. 58. See further Chapter 5, Section 1.3.2. 282 See for example Doriane Coleman and Philip Rosoff, “The Legal Authority of Mature Minors to Consent to General Medical Treatment” 131 P[a]ediatrics 786 (2013). 283 See for example Re M. (A Child) (Refusal of Medical Treatment) [1999] 2 flr 1097, in which the judge ordered a heart transplant against the wishes of the adolescent, and went to great lengths to justify his decision. See also Re A. (A Child) [2014] ewhc 920. 284 [2014] ewhc 920. 285 Ibid.

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the consequences of that advice, is to be treated as an autonomous individual and respected as such.”286 The court pointed out the fact that A’s situation was being approached by the courts in the same manner in which the situation of an adult would be if there were doubts about capacity, and also stated that the conclusion would have been the same: Two psychiatric opinions have been commissioned and both concur that A is not in fact competent to make decisions as to the appropriate course of medical treatment. Were she an adult and were I applying the criteria of the Mental Capacity Act 2005 (which I am not) the psychiatric opinion would lead me to the conclusion that A lacks the capacity to take these medical treatment decisions…287 It is rare to encounter this level of respect for a child’s position as an autonomous, dignified, individual outside the area of medical law. The court is very cautious here when deciding to override wishes – two medical opinions have been sought. This approach demonstrates that the adult/child divide can be seen as more flexible, so that children can be treated as deserving less autonomy only where necessary. If this caution can be employed in medical law, it is undoubtedly possible in other areas, such as family law. Indeed it is highly inconsistent that there are such divergent approaches to children’s wishes in the two types of cases.288 The Difference between Children’s and Adults’ Autonomy in Medical Law In spite of the higher level of respect for children’s autonomy in medical law, they are nevertheless treated as distinct from adults in many ways. Nowhere is this more clear than in instances where children refuse treatment. Technically, the present legal position in English and Wales after Re R.289 and Re W.290 seems to be that courts and parents (though perhaps to a lesser extent291) can override refusals of treatment even by children (that is all under-18s) deemed

6.3

286 The court continued however that it “of course would not mean her views would be determinative, but they would be given great weight” citing c.r. (Axon) v Secretary State for Health (Family Planning Association) (intervening) [2006] qb 539; Gillick v West Norfolk and Wisbech Area Health Authority [1986] ac 112. Re A. (A Child) [2014] ewhc 920, para. 12. 287 Re A. (A Child) [2014] ewhc 920, para 13. 288 See further Chapter 6. 289 [1991] 4 All 177. See further Gilmore and Herring, note 7, at 5. 290 Re W. (A Minor) (Medical Treatment) [1992] 4 All er 627, at 639. 291 See Gilmore and Herring, note 7.

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Gillick competent. In some jurisdictions, as noted above, children cannot consent at all. On a practical basis the differences in the treatment of the autonomy of adults and children is also quite evident – for example, children are subject to restraint against their wishes for administration of non-urgent procedures to a much greater degree than adults.292 Therefore treatment of children is identical to that of adults neither in law nor in practice. It is widely acknowledged that there are enormous challenges associated with the primary standard by which to determine children’s capacity to consent in in England and Wales – the Gillick approach. The decision has dominated the issue of children’s ability to consent for the last few decades, yet the judgment is now quite outdated and “out of step with much contemporary thinking.”293 It precedes, for example, the crc and the recent decades of progress in the recognition of children’s rights. Considering recommendations for change in the Gillick approach is useful for informing the children’s autonomy principle advocated in this book, since children’s capacity to consent to medical treatment is the area in which children’s autonomy has perhaps been most explored. 6.3.1 Gillick Ambiguities Probably the greatest difficulty with Gillick is that, rather than providing answers to the dilemma around children’s capacity, it has in fact raised more ambiguities.294 The test suggested in Gillick – that is that it should be determined whether a child has “sufficient understanding and intelligence” to consent to the matter in question – has left persisting questions “which vex clinicians, minors and their families” about the level of understanding children should have, and when they have it, whether they can determine treatment.295 The ambiguities are particularly problematic when the really difficult questions arise, such as in instances in which children refuse life-saving treatment.296 It is where this occurs that issues around children’s capacity and consent come to the fore, as this is where children are seeking to act against the opinions 292 Lucy Bray, Jill Snodinc and Bernie Carter, “Holding and Restraining Children for Clinical Procedures Within an Acute Care Setting: An Ethical Consideration of the Evidence” 22 Nursing Inquiry 157 (2015), at 162. 293 Mackenzie and Watts, note 8, at 97. 294 Tim Grimwood “Gillick and the Consent of Minors: Contraceptive Advice and Treatment in New Zealand” 40 Victoria University of Wellington Law Review 743 (2010). See also C. Ashteka et al., “How Much do Junior Staff Know about Common Legal Situations in Paediatrics?” 33 Child Care Health Development 631 (2007) and David Day, “The Capable Minor’s Healthcare: Who Decides?” 86 Canadian Bar Review 379 (2007), at 383–4. 295 Cave, note 8. 296 Ibid.

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of medical professionals, and consequently not in their own ‘best interests’ as perceived by those professionals. The uncertainty accompanying the issue of children’s consent (and specifically, refusal to consent) has led to the General Medical Council in England and Wales to advise practitioners that: “[T]he law on parents overriding young people’s competent refusal is complex. You should seek legal advice if you think treatment is in the best interests of a competent young person who refuses.”297 There is clearly some confusion when it comes to children’s consent as to how Gillick should work in practice.298 There are a number of potential reasons why there has not been a test case in England and Wales, relating to the prohibitive costs of litigation, growing respect for children’s autonomy and a preference for mediation,299 and so the uncertainty persists. This uncertainty accompanying Gillick can make it easy to override children’s wishes on the basis of incapacity. Freeman argues that a finding of incapacity can be, and has been, an “easy way out” in the most difficult cases.300 Although in An nhs Foundation Trust v A. careful consideration, including psychiatric reports, was given to the question of whether the girl lacked the capacity to consent,301 the same attention has not been given to the matter in

297 General Medical Council, 0–18 Years: Guidance for all Doctors (General Medical Council, 2007), at para 31. 32. See further Gilmore and Herring, note 7, at 7. See also Department of Health, Reference Guide to Consent for Examination or Treatment (2nd edn, Department of Health, 2009) Chapter 3, para. 15 in which it is stated: “The courts have, in the past, also found that parents can consent to their competent child being treated even where the child/young person is refusing treatment. However, there is no post-Human Rights Act 1998 authority for this proposition, and it would therefore be prudent to obtain a court declaration or decision if faced with a competent child or young person who is refusing to consent to treatment, to determine whether it is lawful to treat the child.” 298 Gilmore and Herring, note 7, at 7. 299 Emma Cave and Zenon Stavrinides, Medical Practitioners, Adolescents and Informed Consent Project: Final Report (University of Leeds, 2013), at 41. 300 “A finding of Gillick incompetence is, of course an easy way out – and one accordingly that [is] regularly taken (and not just by the courts, but also by doctors who are the gatekeepers of treatment).” Michael Freeman, “Rethinking Gillick” 13 International Journal of Children’s Rights 201 (2005), at 209. See similar views expressed by Michael Freeman, “Review Essay: What’s Right with Rights for Children” 2 International Journal of Law in Context 89 (2006). See also Andrew Bainham, “The Judge and the Competent Minor” 108 Law Quarterly Review 194 (1992), at 200 and Lennings, note 181 who refers to “practices of stipulating that children had not understood ‘enough’ the relevant evidence in order to avoid Gillick competence.” At 467. 301 Re A. (A Child) [2014] ewhc 920.

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comparable cases. It was ordered that a 15 year old boy in Re E.302 have blood transfusions against his religious beliefs.303 When making the order, the judge commented that the boy did not realise the full implications of the process of dying and the suffering it would involve. Freeman argues that if such standards were required of adults “it is dubious whether refusal to be treated would ever be allowed.”304 Similarly in Re S., another case involving a refusal of life-saving blood transfusions on medical grounds, it is difficult to see how the judge reached the conclusion of incapacity.305 The same issue has been evident in cases in Australia:306 In Re A.307 and Re Alex (Hormonal Treatment for Gender Identity Dysphoria),308 both cases concerning teenagers seeking gender reassignment treatment, capacity was given the most cursory consideration.309 In the 2014 case of An nhs Trust v a.b.c. and A Local Authority310 the court found that a (barely) 13 year old girl was Gillick competent, and that her wish to terminate her pregnancy should consequently be upheld. The girl’s wish was in line with clinicians’ judgments. Whilst Moreton heralds the decision as a heartening demonstration of how a test for competence can be administered “wherein children as young as 13 can meet the criteria”311 I see something far different – simply further proof that the notion of Gillick competence (or ‘capacity’) can be used as a tool for justifying whichever way the court is mindful to decide.312 Moreton herself doubts that the girl in this case was, in fact, 302 [1993] 1 flr 386. 303 On reaching the age of 18 years he promptly refused them and died once he had acquired the right to exercise his own choice. This is outlined in Re S. [1994] 2 flr 1065 and also in Re P. [2004] 2 flr 1117. See further Freeman, “Rethinking Gillick” note 300, at 209. 304 Freeman, “Rethinking Gillick” note 300, at 209. 305 Re S. [1994] 2 flr 1065. At least part of the reasoning was that the girl hoped for a miracle, something which Freeman points-out seems reasonable in her dire circumstances. “Rethinking Gillick” note 300, at 209. 306 See further Diana Bryant, “It’s My Body, Isn’t It? Children, Medical Treatment and Human Rights” 35 Monash University Law Review 193 (2009). 307 (1993) 16 Fam lr 715. 308 Re Alex (Hormonal Treatment for Gender Identity Dysphoria) (2004) 31 Fam lr 503. 309 As Bryant notes, in Re A. (1993) 16 Fam lr 715 the court “was not satisfied that the child had sufficient capacity and maturity to fully appreciate all aspects of the matter and to be able to assess objectively the various options available to him. It was not clear from the judgment on what basis the trial judge reached that conclusion.” Bryant, note 306, at 201. 310 [2014] ewhc 1445. 311 Kirsty Moreton, “Gillick Reinstated: Judging Mid-Childhood Competence in Healthcare Law: An nhs Trust v abc” 23 Medical Law Review 303 (2014), at 303. 312 Moreton does in the course of the article consider the “cynical” possibility of a termination coinciding with medical, local authority and social policy viewpoints as explaining

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Gillick competent.313 Yet it would have undoubtedly seemed morally cruel for the court to engage in a best interest exercise rather than one upholding capacity where a pregnant girl expresses a wish to terminate her pregnancy. A finding of Gillick competence appears a much more convenient route (considering the inclination in favour of respecting autonomy in medical law noted above at Section 5), and facilitated by a scenario where the girl’s wishes were in line with clinicians’ judgments anyway. The attention to children’s capacity in these kinds of cases appears disingenuous, just as in the needle fear (and other) cases noted above. Because we know so little about capacity, it is very easy to assert that someone does not have it. As An nhs Trust v a.b.c. and A Local Authority314 demonstrates, perhaps it is also easy to assert that they do. This points to the instrumentalisation of capacity by courts and others for the outcomes sought by them. A more logical and honest approach would be one which had greater consideration for the harm likely to arise from the decision. There is a duty to protect those under the age of 18 years, whether it is through the parens patriae jurisdiction of the court in England and Wales or through the best interest principle of the crc, or the many other legal provisions which aim to protect children. It is only logical to be concerned about the ability of a child to make a choice against, for example, the fervent religious or other beliefs of their parents.315 Children are in a vulnerable position in respect of those parents, being dependent on them because of their age, requiring care for their illness, and so on. The necessity of protection should be the logic according to which courts question and/or override children’s wishes in such cases, not claims of lesser cognitive capacities. Overriding children’s autonomy in certain cases to avoid catastrophic harm is particularly justifiable now that authors are calling for a more responsible approach to adults too where their vulnerability threatens their lives.316 In 2010 it was reported that a 15 year-old (Joshua McAuley of Birmingham in England) who had been badly injured in a car accident apparently was permitted by the hospital to refuse a blood transfusion on the basis of his religious the determination of Gillick competence in An nhs Trust v abc. See Moreton ibid., section entitled “Critical Analysis”. 313 Ibid., section entitled “Critical Analysis”. 314 [2014] ewhc 1445. 315 See for example Re E. [1993] 1 flr 386 regarding religious beliefs about blood transfusions and London Borough Tower of Hamlets v B. [2015] ewhc 2491 in which a 16 year old and her family were planning for her to marry isil (Islamic State of Iraq and the Levant) fighters in Syria. 316 Foster, note 31, and Herring, note 15.

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beliefs and he subsequently died.317 The hospital commented for the press that the issue of children’s consent is an “‘extraordinarily complex area’ with no set rules.”318 The lack of clarity, often unaided by Gillick, raises deeply troubling questions about the extent to which authorities have a responsibility to adopt a paternalistic approach to under-18s when their beliefs clash with the administration of life-saving treatment, and questions about whether authorities are in fact meeting their responsibilities. As noted above, ‘autonomy’ does not and should not mean abandoning those who require paternalism. The children’s autonomy principle, if it were applied, would not be of great assistance in cases where children refuse life-saving treatment. It would simply permit the displacement of the presumption in favour of children’s wishes (note – it would not necessarily require overriding children’s wishes), as in such cases significant harm, that is grave injury or death, would likely arise from upholding those wishes.319 Ordering life-saving treatment against a child’s wishes however may not be ‘best’ for every child in every case.320 Forcing a gravely ill child to accept invasive treatment with a slim chance of success for example, is not necessarily justifiable. This would constitute a ‘life at all costs’ approach, which pays insufficient attention to the quality of a child’s life. As the children’s autonomy principle is better suited to the family law context, theoretical efforts to address the question of children’s consent in medical law will be only briefly examined. 6.3.2

Suggested Changes for the Approach to Children’s Capacity in England and Wales There have been many suggestions for change to the approach to children’s capacity to consent in England and Wales. Some authors suggest (what I refer to as) a ‘presumption of capacity, plus protection’ option for children. Cave considers a combination of the Mental Capacity Act test, together with the facility of the inherent jurisdiction of the court to protect the vulnerable. Children would be presumed to have capacity (as the Act enshrines), but would remain protected under the court’s inherent jurisdiction, which gives it power to act

317 bbc News, “Teenage Jehovah’s Witness ‘Died After Refusing Blood’” bbc News Online (18 May 2010). Available at http://news.bbc.co.uk/1/hi/england/west_midlands/8690785.stm (last accessed 6 Jan 2016). 318 Ibid. 319 The threshold for harm is considered further in Chapter 6. 320 See for example the case of Hannah, note 260. See also the situation of an adult with anorexia in Re E. (Medical Treatment Anorexia) [2012] ewhc 1639. The court had to carefully consider whether, after several failed attempts at treatment, forcible treatment (without which the woman would die) was really in her best interests.

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on behalf of children in their best interests.321 Mackenzie and Watts go further in their ‘presumption of capacity, plus protection’ suggestion, recommending the application to children of processes for adults with cognitive impairment, together with special autonomy safeguards particular to children which go beyond the somewhat simplistic ‘inherent jurisdiction’ approach.322 Children would not only enjoy advantages such as a presumption of capacity, but also an obligation on authorities to maximise capacity; and an obligation on authorities to choose the option least intrusive to autonomy.323 There is also the question of whether clinical tools could assist in achieving consistency in determining children’s capacity. Some efforts have been made in recent years to modify the MacCAT tools for measuring decisionmaking abilities (considered above)324 for use with children. There is as yet very little empirical research data on the efficacy of such tools in measuring children’s decision-making abilities. There has been some success – Koelch et al. determined that the MacArthur Competence Assessment Tool for Clinical Research (MacCAT-CR) was feasible when used with children aged seven to 12 years diagnosed with Attention Deficit Hyperactivity.325 Hein et al. conducted the MacCAT-CR with 209 patients aged six to 18 years of age, and determined inter-rater reliability.326 Modification of the MacCAT-T for children include questions on the influence of social relationships, including questions concerning anticipated reactions of parents and friends to prospective decisions of the children tested according to the instrument.327 Hein et al. argue that the studies in the area vary widely, however, and usually measure only one dimension of competence, which mean they lack such validity and reliability.328 There appears to be significant levels of variations of results between testers. In one study, testers (both applying the MacCAT-CR to children) disagreed in 45% of cases (although without the test disagreement

321 Cave, note 8. 322 Mackenzie and Watts, note 8, at 103. 323 To this the authors add: A series of assessments such as a mental health assessment, a mental capacity assessment, a children’s rights assessment and a best interests assessment by trained professionals. Mackenzie and John Watts, at 101. 324 Dunn et al., note 203. 325 Michael Koelch et al., “Report of an Initial Pilot Study on the Feasibility of using the MacArthur Competence Assessment Tool for Clinical Research in Children and Adolescents with Attention-Deficit/Hyperactivity Disorder” 20 Journal of Child and Adolescent Psychopharmacology 63 (2010). 326 Hein et al., note 196. 327 Ibid, note 195. 328 Ibid, note 183.

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was even more frequent).329 Furthermore, Koelch et al. determined that where clinicians determined children to have capacity, the tool indicated more frequently that they did not. This points to the possibility that the tools may be underestimating children, or failing to capture something which a less clinical interaction does; something which leads clinicians to deem a child to have capacity.330 Furthermore, one significant problem with adult tests persists in those for children – these tools measure understanding and reasoning, whereas the motives and values of the patient require greater attention.331 This could potentially be even more significant for children than adults – children’s motives and values may be very different from those of parents or health professionals as children may have different perspectives to adults.332 As with adults, commentators emphasise that these tools are similarly just to aid and not to replace the personal determination by the practitioner of the child’s decision-making abilities.333 Therefore even though there are some indications that they may be functional for use with children, the same challenges of determining whether an adult has capacity (including the problem of subjectivity and the lack of focus on values) pose problems in tests with children. I am not primarily aiming in this book to secure change for the approach to children’s consent in medical law, although I would not object to the use of the children’s autonomy principle in this area as long as it was not used to diminish children’s autonomy rights in a realm where, for once, they are taken seriously. Yet there are commentators who are operating more squarely in the area of medical law who are making recommendations for approaches to children’s capacity – for example those relating to ‘presumption of capacity, plus ­protection’ – which are based more soundly on the particular challenges and nuances of that area. One particular challenge is that questions around children’s capacity and consent in medical law are tightly aligned to the complex area of the capacity and consent of adults.334 It does not seem wise to disentangle children entirely from that – albeit complex and imperfect – system, 329 Hein et al., note 195. 330 As noted above, Hein et al. experienced reliability when it came to consistency of rater. Hein et al., note 196. 331 Bolt and van Summeren, note 206, at 300. 332 Ibid, at 300. 333 Hein et al., note 183. 334 It should be noted that, as outlined in Section 5 of this chapter, in England and Wales the Mental Capacity Act 2005 only applies where incapacity is due to cognitive impairment rather than youth. Nevertheless the two areas are of course interlinked – the approach to children’s consent, and proposed solutions to the questions within that area, have been placed in the Mental Capacity Act framework by, for example, Cave note 8, and Mackenzie and Watts, note 8, at, at 101.

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as to do so would risk over-emphasising children’s differences as compared to adults in a way that would be unhelpful and unfairly discriminatory. I am primarily using what is happening in medical law concerning children (in particular, high levels of autonomy respect) to demonstrate how other areas of the law concerning children require change. There are similarities between proposals for change in medical law and what I am proposing in the context of best interest proceedings more generally. The ‘presumption of capacity, plus protection’ option aligns quite strongly with the children’s autonomy principle. The main difference is that the starting point for ‘presumption of capacity, plus’ option is that capacity is assumed. The children’s autonomy principle is, in contrast, encouraging a much lower emphasis on capacity. Young children will have unique understandings and experiences of their personal relationships – they should not require full ‘capacity’ (whatever that is) to have their wishes upheld. It is instead preferable to adopt an emphasis on the question of the likelihood of harm to a child from upholding their wishes. There are other intersections between the recommendations of commentators in medical law and the children’s autonomy principle for best interest proceedings. The obligation recommended by Mackenzie and Watts to choose the option least intrusive to autonomy should also be assumed in the children’s autonomy principle. If children’s wishes cannot be upheld for whatever reason – because of manipulation by an adult, or because significant harm is likely to arise from those wishes, then it makes sense that any decisions overriding autonomy should be understood to require that the option least intrusive to autonomy be chosen.335 Another point – that authorities should maximise capacity (recommended by Mackenzie and Watts) – is contained in the Mental Capacity Act for those over 16 years. I am also advocating that prioritising children’s autonomy in best interest decisions requires that ‘autonomy support’ be provided in order to maximise children’s decision-making abilities. Authorities should ensure that children have the information and support that they need to make the best decision that they can, and to ensure that children also feel supported through difficult processes.336 Even if the medical law approach were applied to other areas of the law concerning children, it is clear that the ‘capacity’ problem would persist – it is little understood, and consequently easy to instrumentalise, depending on the particular needs of the deciding adult. This is why a different approach is 335 Mackenzie and Watts, note 8, at 101. 336 See further Chapter 7.

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required; one which focuses less on the elusive capacity notion, and more on the threshold at which interference with children’s autonomy is justified. 7

Developmental Psychology and Children’s Decision-Making Abilities Adults will not listen to us because they say we have not yet matured.337

‘Capacity’ (in the legal sense) and decision-making abilities (in a less formal sense) are matters of enormous prominence in medical law cases concerning children; and often feature to some degree in other best interest decisions as well. In this section, the influence of developmental psychology and the ‘capacity’ approach espoused by it are considered. Empirical research concerning children’s decision-making abilities is then considered. It is determined that, although we know that children do not reason as ‘well’ as adults, and although context is crucial (because with help, they often can), the overriding point is that it is very difficult to generalise about what children can do (or should be able to do) at a particular age; and the ‘decision-making ability’ barrier which is assumed to divide adult and child is more fluid than we assume. This gives further weight to the suggestions that capacity should be given less attention in best interest proceedings, and that autonomy support should be given greater attention. 7.1

Developmental Psychology in Legal Proceedings: A Critique They wanted me to draw a fruit tree … I just wondered why I was doing it.338

The law sometimes turns to developmental psychology – the scientific study of the ways in which human beings change over their lifetimes – for guidance on 337 Croatian child quoted in European Commission, Evaluation of Legislation, Policy and Practice on Child Participation in the European Union: A Final Report to the European Commission Directorate-General for Justice (European Commission, 2014), at 175. 338 Thirteen year old girl from Poland, party to ‘custody’ case and victim in domestic violence case, quoted in European Union Fundamental Rights Agency, Child-Friendly Justice: Perspectives and Experiences of Children Involved in Judicial Proceedings as Victims, Witnesses or Parties in Nine eu Member States (European Union Fundamental Rights Agency, 2017), at 43.

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the difficult matter of how to measure children’s decision-making abilities. It is evident in cases such as Gillick and Roper v Simmons339 that developmental psychology does filter to some extent into legal decisions and legal approaches to children. It is very much evident in the pseudo-scientific terms in which judges (and, in fairness, all of us) sometimes engage in describing children. For example courts refer to the stage “when [children] are able to reason”,340 describing children as “mature beyond [their] years”341 or as having understandings that are “simplistic … immediate and superficial”,342 assuming that there is some standardised element to these terms which we all understand (there isn’t).343 There are extensive examples in the case law and in the practices of ­professionals.344 In Mabon, for example, the court emphasised that, when considering whether children can instruct legal representation judges should “focus on the sufficiency of the child’s understanding…” and “measure” that ­sufficiency.345 Australian research points to lawyers focusing heavily on the age and maturity of the child “as if the main … issue [at hand in the case] was to determine whether the child had the capacity to make his or her own decision.”346

339 543 u.s. 551 (2005). In this case it was determined that to apply the death penalty for crimes committed as a child is unconstitutional. The court cited evidence from developmental psychology concerning the relative lack of maturity of adolescents. 340 This was the impressions of a judge of a ten year old in a case in New Zealand: C. v C. (1995) 13 frnz 662. 341 This was in another New Zealand case. See Family Court, 1998, fp 009/1378/98 and Nicola Taylor et al., Children’s Rights in New Zealand Family Law Judgments; Research Report (Children’s Issues Centre, University of Otago, 2000), at 14. 342 Ibid. 343 See for example Kay Tisdall, “Challenging Competency and Capacity? Due Regard to Children’s Views in Family Law Proceedings” International Journal of Children’s Rights (forthcoming 2017) and Donald Bersoff, “Autonomy for Vulnerable Populations: The Supreme Court’s Reckless Disregard for Self-Determination and Social Science” 37 Villanova Law Review 1569 (1992). 344 See detailed consideration in Chapter 5, Section 1.3. See for example Re R. (Residence Order) [2009] ewca Civ 445, para. 58; W. (Minors) [2010] ewca 520 Civ, para. 56; and New Zealand case Y. v W. FC Christchurch, fp 009/1640/88, at 8–9 and in the Scottish family law context, in M. v M. (2008 Fam lr 90) and M. v G. (2010 wl 1608452). 345 Mabon v Mabon [2005] ewca Civ 634 at para. 26. 346 Apparently they were found to focus on this more than professionals with a social work background. Judy Cashmore and Peter Parkinson, “Children’s Participation in Family Law Disputes: The Views of Children, Parents, Lawyers, Counsellors” 82 Family Matters 15 (2009), at 20–1. Lawyers seem to seek a more yes/no approach to capacity, which is unsurprising as the law tends to seek-out such certainty.

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The focus on maturity and capacity is particularly striking considering the fact that very few people (if any) have a firm grasp of how to measure children’s understanding. In the context of child protection, Thomas and O’Kane point to the frequency with which professionals turn to the notion of children’s ability to understand, and the lack of the professionals’ own understanding of what this might actually mean: When we asked social workers how they decided whether to include children in a decision making meeting, their replies frequently made reference to assessing the child’s ability to understand. However, when we asked them how they made such an assessment their answers tended to be muddled and incoherent.347 Of course, like the right to be heard, the lack of clarity around the meaning of ‘understanding’ runs the risk of adults deciding its meaning in line with whatever is convenient for the adult.348 If social workers do not have a coherent, consistent understanding of how to (or whether we even can) measure children’s decision-making abilities, then this is very problematic for the legal professionals and others who rely upon them, and certainly worrying from the perspective of any right that children may have to be heard and for their views to be given weight in line with the crc. The crc itself, of course, adopted developmental psychology ideas and terminology349 through, for example, the reference to children’s “evolving capacities” in crc Article 5, and the reference to “age and maturity” in crc Article 12, yet the instrument avoids almost entirely those tricky issues of exactly how these things could or should be measured. Where law relies on developmental psychology it adopts the problems, disagreements and inconsistencies that exist in that discipline.350 Mayall points-out that challenging long-held and erroneous assumptions about children is extremely difficult due to global dominance of child development theory in the discipline of psychology.351 It espouses a Global Northern approach which positions children as primarily 347 Nigel Thomas and Claire O’Kane, “When Children’s Wishes and Feelings Clash with their ‘Best Interests’” 6 The International Journal of Children’s Rights 137 (1998), at 151. 348 Cashmore and Parkinson, note 346, at 20–1. 349 Matias Cordero Arce, “Maturing Children’s Rights Theory” 23 The International Journal of Children’s Rights 283 (2015), at 316. 350 Many theorists in the us have lamented the lack of regard by courts for research on children’s decision-making abilities, and a lack of consistency of approach across areas of the law. See for example Buss, note 52, at 25 and Bersoff, note 343. 351 Berry Mayall, “The Sociology of Childhood in Relation to Children’s Rights” 8 International Journal of Children’s Rights 243 (2000), at 245.

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vulnerable and dependent, and insists that they must reach particular stages at particular times in order to be ‘normal’.352 This ignores the many scenarios where children are active agents inside and outside of the home353 and the fact that adults are regularly irrational. It instead positions rational adulthood as the ultimate goal in child development. It is packaged as science, as a “supposedly objective and neutral authority” through which children can be measured in accordance with what they should be doing and achieving across and between childhood and adulthood.354 It is certainly evident that the developmental psychology discourse of vulnerable children guides laws concerning children’s best interests. In family and child protection law, where it is convenient for children to be excluded from proceedings, this discourse is highly prevalent (in criminal law, where it is more convenient for children to be seen as wilful and dangerous, such an approach is often lacking355). This has created an “authentic psycholegalism”356 where law both incorporates and legitimises child development theory, establishing elements in policy, legislation, and case law (through, for example, expert evidence from psychologists).357 The ideas associated with the discipline have achieved “the status of incontrovertible truth” in a way that is little-questioned.358 This ignores the many uncertainties about capacities and behaviour and assumes that the complexities of human behaviour are quantifiable.359 Psychological science is attractive in its offer of certainty, through which practitioners can become the judges of a child’s ‘normality.’360 In many of the cases considered in this book we witness references to children’s intelligence ‘for their age’.361 Yet, as Buss opines: “capacity is endlessly complicated and incompletely studied, making it difficult for the law to ‘fit’ the social science with

352 353 354 355 356 357 358 359 360 361

Ibid. Ibid. Cordero Arce, at 349. See for example Buss, note 52, and Bersoff, note 343. Susan White, “Interdiscursivity and Child Welfare: The Ascent and Durability of PsychoLegalism” 46 Sociological Review 264 (1998). Ibid., at 266–7. Ibid. Ibid. Ibid. Courts use terms such as “mature beyond [the child’s] years”: Family Court, 1998, fp 009/1378/98 (New Zealand); “the sufficiency of the child’s understanding”: Mabon v Mabon [2005] ewca Civ 634; and “a little bit more immature” [than his chronological age]: M. v B. [2016] ewhc 1657.

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any accuracy.”362 Unfortunately, the possibility that we may never be able to measure a child’s decision-making capacities objectively is rarely considered. Such critical thinking certainly does not feature in the day-to-day rigours of the practical scenarios in which such issues are raised, for example where judges must ‘weigh’ children’s views in proceedings concerning them. It appears to be assumed that a child’s capacity is simply a quality which can be measured objectively.363 The matter of the capacity of the adult in proceedings – teacher, psychologist, social worker, judge – to engage in such a measuring task is never considered.364 It is important to remain critical of the notion that children’s capacities can be measured in a straightforward way. It is nevertheless important to consider what claims are made within developmental psychology and empirical research about children’s decision-making abilities, in order to determine the relevance of those claims and findings for children’s autonomy in best interest proceedings. Theories on Decision-Making and Other Cognitive Abilities at Particular Ages Our preoccupation with age means that much of the thinking around children’s understandings and decision-making abilities revolves around what children should be expected to do within their particular age range. Piaget’s ‘stage theory’365 is hugely prevalent within developmental psychology366 and consequently its influence is evident in the field of law (at least to some extent).367 Piaget conceptualised cognitive development – the process by

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362 Buss, note 52, at 14. 363 See Chapter 5, Section 1.3. 364 Alderson suggests in the medical context that adults should be adequately trained to assess children’s capacity. See Priscilla Alderson, “Researching Children’s Rights to Integrity” in Berry Mayall, ed, Children’s Childhoods: Observed And Experienced (The Falmer Press, 1994), at 53 and further Chapter 7. 365 See for example Jean Piaget, The Origins of Intelligence in Children (Routledge and Kegan Paul Ltd., 1953 [1936]); Jean Piaget, The Construction of Reality in the Child (Routledge and Kegan Paul Ltd., 1955 [1937]) and Jean Piaget and Bärbel Inhelder, The Psychology of the Child (Routledge and Keegan Paul, 1969). 366 Piaget is described by Carlson and Buskit as “the most influential student of child development.” Neil Carlson and William Buskit, Psychology: The Science of Behaviour (Allyn and Bacon, 1997), at 378. ‘Neo Piagetian’ thinking has evolved from his work. See for example Robert Siegler, ed, Children’s Thinking: What Develops? (Laurence Erlbaum, 1978). 367 See for example Jennifer Woolard, Dickon Reppucci and Richard Redding, “Theoretical and Methodological Issues in Studying Children’s Capacities in Legal Contexts” 20 Law

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which children “get to know things about themselves and the world”368 – in terms of a maturational process, on the basis that children of approximately the same age have a tendency to engage in similar behaviours. While contemporary researchers challenge the Piagetian approach as, amongst other flaws, underestimating children’s abilities,369 they continue to acknowledge its value in terms of understanding the cognitive development of children.370 Since Piaget, many researchers have engaged in trying to establish what children can generally do at certain ages.371 Advances in neurobiology have added to the body of evidence in interesting ways, in particular emphasising that our brains do not reach full maturity until our mid-20s at least,372 challenging many of our assumptions about the child/adult divide.373 In general it is a complex, messy picture, and one in which it is not always even clear what is being measured. However there are some trends in the findings that we can point to. From birth to age two, Piaget stated that children are in the ‘sensorimotor stage’ whereby they experience the world through movement and their ­senses.374 Although many consider children under two as helpless individuals, lacking for example in the ability to form views, Alderson’s research has highlighted

368 369

370 371 372

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and Human Behavio[u]r 219 (1996), Department of Justice Canada, The Interaction Between Children’s Developmental Capabilities and the Courtroom Environment: The Impact on Testimonial Competency (Department of Justice Canada, 2002), at 13 and Quebec Bar Committee, “The Legal Representation of Children: A Consultation Paper Prepared by the Quebec Bar Committee” 13 Canadian Journal of Family Law 1 (2006). Carlson and Buskit, note 366, at 377. See for example Rochel Gelman, “The Nature and Development of Early Number Concepts” 7 Advanced Child Development 115 (1972), Margaret Donaldson, Children’s Minds (Fontana, 1978), John Morss, “After Piaget: Rethinking ‘Cognitive Development’” in John Morss and Tim Linzey, eds, Growing Up: The Politics of Human Learning (Longman-Paul, 1991) and David Bjorklund, “In Search of a Metatheory for Cognitive Development (or, Piaget is Dead and I Don’t Feel so Good Myself)” 68 Child Development 144 (1997). Rhonda Gay Hartman, “Adolescent Autonomy: Clarifying an Ageless Conundrum” 51 Hastings Law Journal 1265 (2000), at 1285. Steinberg, note 124, at 3. See for example Jay Giedd, “Structural Magnetic Resonance Imaging of the Adolescent Brain” 77 Annals of the New York Academy of Sciences 1021 (2004). As some researchers put it, “the rental car companies have it right.” Twenty-five years is probably when our brains are fully developed – the age at which we are allowed to rent a car. See the mit Young Adult Development Project, available at http://hrweb.mit.edu/worklife/youngadult/brain .html (last accessed 21. Feb. 2017). See for example Giedd, ibid. Piaget, note 365.

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what any parent will likely already know: Babies are conscious and active agents who alter environments, families, relationships.375 Empirical evidence also highlights that very young children have sophisticated decision-making abilities for reasoning about things like future events,376 physical causality377 and social behaviour,378 though there is much which we do not understand about the mind before age two.379 The ‘preoperational’ stage continues from age two to seven. This period is characterised by an increasing ability to use and represent objects through words and images, that is to use ‘symbolic thinking.’ Although mental reasoning is developing, children are expected to think in ‘egocentric’ terms, that is, to have difficulty in considering the viewpoints of others, although they are increasingly gaining these skills. ‘Cognitive control’ – that is controlling your behaviour in line with your goals – is thought to be weak in children of this age. In the infamous ‘marshmallow test’ it was determined that most three to five year olds, apparently irrationally, fail to resist temptation where resisting would lead to greater reward – foregoing one marshmallow in order to get two later.380 Age was a major factor – the older the child, the more likely they would delay gratification. It has subsequently been found in a 2016 replication of this study that attention training greatly improves children’s ability to delay gratification in this task,381 pointing to the influence which environment, assistance 375 Priscilla Alderson, Joanna Hawthorne and Margaret Killen, “The Participation Rights of Premature Babies” 13 International Journal of Children’s Rights 31 (2005), at 47. 376 Celeste Kidd, Steven Piantadosi, Richard Aslin, “The Goldilocks Effect: Human Infants Allocate Attention to Visual Sequences That Are Neither Too Simple Nor Too Complex” 7 PLoS one e36399 (2012). 377 Hyowon Gweon and Laura Schulz, “16-Month-olds Rationally Infer Causes of Failed Actions” 332 Science 1524 (2011). 378 György Gergely, Harold Bekkering and Ildikó Király, “Rational Imitation in Preverbal Infants” 415 Nature 755 (2002). 379 Diane Poulin-Dubois, Ivy Brooker and Virginia Chow, “The Developmental Origins of Naïve Psychology in Infancy” 37 Advances in Child Development and Behaviour 55 (2009). The authors conclude: “Nonetheless, there appears to be some consensus that infants … understand the goals, intentions, perception, and knowledge of others.” 380 Walter Mischel and Ebbe Ebbesen, “Attention in Delay of Gratification” 16 Journal of Personality and Social Psychology 329 (1970). See further Celeste Kidd, Holly Palmeria and Richard Aslin, “Rational Snacking: Young Children’s Decision-Making on the Marshmallow Task is Moderated by Beliefs about Environmental Reliability” 126 Cognition 109 (2013). 381 Joanne Murray, Anna Theakston and Adrian Wells, “Can the Attention Training Technique Turn One Marshmallow into Two? Improving Children’s Ability to Delay Gratification” 77 Behaviour Research and Therapy 34 (2016).

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and support has on the ability of children (and all individuals) to make more objectively ‘good’ decisions. The age of seven is a prominent one in the literature on child development. Seven years is the age, for example, at which research indicates that children are capable of comprehending such matters as medical research, and refusing participation in it.382 Piaget, identifying a ‘concrete operational stage’ from seven to 11 years, pointed to the capacity to think logically about concrete events from this age, though he argued that children may still be unable to logically consider all outcomes. Interestingly, his stages correspond to such age-related features as the common law’s spectrum of criminal culpability and the Catholic Church’s “age of reason” (seven years). The research indicates another leap in development within this stage, at age nine. The research of Hein et al. found, when assessing whether a tool for capacity could be used with children, that those between 9.6 and 11.2 years were in a period of transition; they were developing important abilities but their maturity was not yet “effective”.383 It was estimated that children of 11.2 years and above generally seemed to have the mental capacity necessary to consent to medical treatment, while children of 9.6 years and younger did not. Other research has been even more positive about abilities at this age. Nine year olds have been found to be as capable as adults at demonstrating “choice based on reasonableness.”384 In Greenberg Garrison’s research examining children’s decisions in hypothetical scenarios concerning arrangements for children on 382 Charles Lewis, Marion Lewis and Muriel Ifekwunigue, “Informed Consent by Children and Participation in an Influenza Vaccine Trial” 68 American Journal of Public Health 1079 (1978). Leibson and Koren dispute the findings however: Tom Leibson and Gideon Koren, “Informed Consent in P[a]ediatric Research” 17 P[a]ediatric Drugs 5 (2015), at 9. Seven years is the age at which children are considered by the American Psychological Association to have reached the age of assent – the age where a child can be considered to be able to agree to participation in medical research, as long as parents have already agreed. See Robert Shaddy and Scott Denne, “Committee on Drugs and Committee on P[a]ediatric Research: Clinical Report: Guidelines for the Ethical Conduct of Studies to Evaluate Drugs in P[a]ediatric Populations” 125 P[a]ediatrics 850 (2010). Herbert Schwartz, “Children’s Concepts of Research Hospitali[s]ation” 287 New England Journal of Medicine 589 (1972). See Leibson and Koren, at 9. 383 See Hein et al., note 195 and Irma Hein et al., “Informed Consent Instead of Assent is Appropriate in Children from the Age of Twelve: Policy Implications of New Findings on Children’s Competence to Consent to Clinical Research” 16 bmc Medical Ethics 76 (2015). 384 Catherine Lewis, “Decision-Making related to Health: When Could/Should Children Behave Responsibly?” in Gary Melton et al., eds, Children’s Competence to Consent (Plenum Press, 1998).

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family breakdown,385 it was found that nine year olds were as rational as adults in their reasons for decision-making.386 ‘Adolescence’ then is usually defined as puberty (around age 12) to age 18, which is usually the age of majority. At some time around age 12, Piaget argued, children enter the ‘formal operational stage,’ and abstract thought starts to become sophisticated. Individuals reason logically, draw conclusions from available information and apply to hypothetical situations all of these processes.387 Neuroscience likewise indicates that the thickening of the part of the brain involved in judgment and planning peaks at approximately age 11 in girls and age 12 in boys.388 There is a consequent development of cognitive skills facilitating greater ability to develop hypothetical solutions, and the development of the means to choose the best one.389 There are various arguments made, however, about persisting cognitive ‘limitations’ at this stage. The age of 14 years consistently arises in the research as a real turning point for decision-making abilities.390 Some research indicates that 14 year olds’ ability to make decisions is as advanced as that of adults, when considering their understanding of the facts, their processes of the decision making and their understanding of potential outcomes of choice.391 It has also been argued in the us that children should be considered to have the capacity to stand trial at age 14 (much older than is generally the case in practice).392 Other research points, however, to cognitive limitations which persist in adolescence – ­research ­indicates that the frontal lobes, which govern executive functions,393 385 Ellen Greenberg Garrison, “Children’s Competence to Participate in Divorce Custody Decisionmaking” 20 Journal of Clinical Child Psychology 78 (1991), at 78. 386 Ibid. 387 Ibid. 388 Giedd, note 372. 389 Marion Broome, “Consent (Assent) for Research with P[a]ediatric Patients” 15 Seminars in Oncology Nursing 96 (1999). 390 See for example Roberta Bosisio, “‘Right’ and ‘Not Right’: Representations of Justice in Young People” 15 Childhood 276 (2008), at 290 and William Gardner et al., “Asserting Scientific Authority: Cognitive Development and Adolescent Legal Rights” 44 American Psychologist 895 (1989), at 897. Interestingly this was a point noted in the infamous dissenting judgment of Douglas in Wisconsin v Yoder, 406 u.s. 205 (1972). 391 Lewis, note 384. See also Greenberg Garrison, note 385, at 78. 392 Grisso argues that children under 14 years should be assumed incompetent in the criminal law system considering the lack of understanding of many children of that system. Thomas Grisso, “The Competence of Adolescents as Trial Defendants” 3 Psychology, Public Policy and Law 3 (1997). 393 Executive functions are cognitive processes in the brain responsible for reasoning and problem solving, helping us to prioritise, think ahead, and regulate emotion.

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have yet to mature.394 It is argued that this means that adolescents are generally more impulsive,395 and less capable of appreciating the long-term consequences of their choices – something which matures in our early twenties.396 Available research suggests that there is an important transition between 15 and 19 years.397 It is important to remember however that this does not writeoff the abilities of all under-18s: “It is not that these tasks cannot be done before young adulthood, but rather that it takes less effort, and hence is more likely to happen.”398 Some studies indicate that children may make riskier decisions than adults,399 even in medical treatment.400 Alderson has shown, however, that children are generally greatly reasonable and responsible when it comes to medical treatment,401 in some cases in some cases making objectively better decisions than adults.402 The matter is complicated by further research which shows that adolescents who report (via questionnaire) riskier behaviour actually have more adult-like brain characteristics than adolescents who report taking less risks.403 This calls into question whether we should be equating more capacitious children with adult-ness in the first place. 394 Brian Partridge, “Adolescent Psychological Development, Parenting Styles, and Paediatric Decision Making” 35 Journal of Medicine and Philosophy 518 (2010). 395 Andy Piker, “Balancing Liberation and Protection: A Moderate Approach to Adolescent Health Care Decision-Making” 25 Bioethics 202 (2011). 396 Partridge, note 394. 397 Elizabeth Scott, Dickon Reppucci and Jennifer Woolard, “Evaluating Adolescent Decision Making in Legal Contexts” 19 Law and Human Behaviour 221 (1995). 398 Massachusetts Institute of Technology, Young Adult Development Project. Available at http://hrweb.mit.edu/worklife/youngadult/changes.html (last accessed 28 Sep. 2016). 399 Johannes Schiebener et al., “Developmental Changes in Decision Making Under Risk: The Role of Executive Functions and Reasoning Abilities in 8- to 19-Year-Old Decision Makers” 21 Child Neuropsychology 759 (2015). 400 Brody’s research appears to confirm that adolescents are less risk-averse than adults in the medical arena, see Janet Brody et al., “Comparisons of Adolescent and Parent Willingness to Participate in Minimal and Above Minimal Risk P[a]ediatric Asthma Research Protocols” 37 Journal of Adolescent Health 229 (2005). See also Ellen Lipstein et al., “Making Decisions about Chronic Disease Treatment: A Comparison of Parents and their Adolescent Children” 14 Treatment Decisions 716 (2013). 401 See for example Alderson, note 196; Alderson, note 5; Priscilla Alderson, Children’s Consent to Surgery (Open University Press, 1993) and Priscilla Alderson, “Everyday and Medical Life Choices: Decision-Making Among 8- to 15-Year-Old School Students” 18 Child: Care, Health and Development 81 (1992). 402 See for example Alderson, note 196. 403 Gregory Berns, Sara Moore and Monica Capra, “Adolescent Engagement in Dangerous Behavio[u]rs Is Associated with Increased White Matter Maturity of Frontal Cortex” 4 PLoS One e6773 (2009).

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It is now recognised that even at age 18 our “thinking capacities, relationship skills, and ability to regulate emotions” are unlikely to be fully developed.404 A new developmental period – ‘emerging adulthood’ – is now being explored by researchers.405 So, although an individual will usually have all the legal autonomy they will ever have at age 18, the brain is not fully mature, further highlighting the artificiality of the legal adult/child divide. 7.3

The Importance of Environment It feels good when someone listens, they make me happy by doing funny faces. I feel good when my mammy talks to me in the car. I like when my mammy listens to me because she always does.406

One thing which is inescapable is that it appears that the context of the decision is crucial to whether adult-child differences will emerge – “[i]n the heat of passion, in the presence of peers, on the spur of the moment, in unfamiliar situations” adolescents may not reason as well as an adults might.407 Where young people can make decisions at a measured pace, however, where they can consult others, their decision-making abilities can match maturity attained in adulthood.408 The context in which the decision is made, therefore, will likely have a major effect on how ‘good’ at making the decision an adolescent will be. This is something which is frequently emphasised in the context of family law – the level of assistance and support which children receive will likely be far more important than their decision-making abilities per se: “Children’s capacities are very much an interactive and relational process of dialogue, determined as much by the ‘hearing’ and ‘scaffolding’ capacities of the adults they engage with as their own expressive capacities.”409 404 Massachusetts Institute of Technology, note 398. 405 Ibid. 406 Child from Little Rascals Nursery Tullyallen, Louth, Ireland. Quoted in Children’s Rights Alliance of Ireland, Picture Your Rights: A Report to the un Committee on the Rights of the Child from Children Living in Ireland (Department of Children and Youth Affairs/Unicef, 2015), at 32. 407 Valerie Reyna and Frank Farley, “Risk and Rationality in Adolescent Decision Making: Implications for Theory, Practice, and Public Policy” 7 Psychological Science in the Public Interest 1 (2006), at 1. The area is very complex – the research of Reyna and Farley indicates that there are different types of risk-takers, and that, if an individual is encouraged to analyse risks and benefits, their propensity to take risks may actually increase! 408 Laurence Steinberg, “Cognitive and Affective Development in Adolescents” 9 Trends in Cognitive Science 69 (2005); crin, note 158, at 2. 409 Cashmore, note 43, at 520.

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This ties into the fact that many researchers emphasise that it is not just age, but factors such as biology, environment (particularly parental support), and cultural context410 which merge to shape a child’s development.411 Abilities can develop at vastly different rates and ages depending on the child’s social context412 – children become more adept at problem-solving when they have practiced solving problems with parents or older children.413 Children from backgrounds which have been challenging will likely have their decisionmaking abilities affected,414 although experience may make up for this in other ways. They will have more acute experience of complex emotions and thought processes than the average child.415 Children who have experienced major surgery may develop decision-making capacities that far exceed expectations of children of their age group.416 Individual differences also matter – children are as varied as adults in their personalities and abilities.417 Because of the emphasis on stage theory,418 there is a distinct down-playing of the crucial nature of the power dynamics that are at play where children’s decision-making abilities are concerned. For example, a low minimum age for marriage – and its consequences for children’s rights and autonomy – will have

410 Lev Vygotsky, “The Role of Play in Development” in Michael Cole et al., eds, Mind in Society: The Development of Higher Processes (Harvard University Press, 1978). Bronfenbrenner has also emphasised the need to consider the vital part played by the environment in which children develop when considering their capacities. Urie Bronfenbrenner, The Ecology of Human Development: Experiments by Nature and Design (Harvard University Press, 1979). 411 Andrew Schoenholtz, “Developing the Substantive Best Interests of Child Migrants: A Call for Action” 46 Valparaiso University Law Review 991 (2012), at 1000. 412 Barbara Rogoff, The Cultural Nature of Human Development (Oxford University Press, 2003). 413 See for example Barbara Rogoff, Apprenticeship in Thinking: Cognitive Development in Social Context (Oxford University Press, 1990); Lev Vygotsky, “The Role of Play in Development” in Michael Cole et al., eds, Mind in Society: The Development of Higher Processes (Harvard University Press, 1978). Bronfenbrenner has also emphasised the need to consider the vital part played by the environment in which children develop when considering their capacities. Urie Bronfenbrenner, The Ecology of Human Development: Experiments by Nature and Design (Harvard University Press, 1979); Carlson and Buskit, note 366, at 383. Gay Hartman, note 370, at 1285. 414 See Donnelly, note 174, at 190–1. 415 See Mantle et al., note at 788. 416 Priscilla Alderson, Children’s Consent to Surgery (Oxford University Press, 1993). 417 Chisholm, at 24. 418 Buss, note 52, at 14.

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different consequences in different scenarios.419 For some under-18s it may be valuable and empowering – where a girl is pregnant and greatly wishes to marry the father of her child, for example, in a culture where an unmarried mother will have particularly low status. For other children, however, such as those at risk of forced marriage, it may mean exploitation and hardship. With the advent of neuroscience, we now know how incredibly malleable the human brain is. It was previously believed that ‘abilities’ were set in place early in life, because the brain is 95% of adult size by age six.420 Neuroscientists are increasingly emphasising, however, that throughout childhood and across adolescence there is huge capacity for change and development.421 It also points to the potential for supporting children to consider issues and make decisions. Enormous emphasis should be placed on the ability of children to learn and understand an important issue when they have assistance and support to do so. As Alderson points out: “[T]here is misunderstanding about decisionmaking and consent, if it is assumed that someone’s initial view equals their final view. Decision-making is a process of developing and perhaps radically altering initial views while gradually forming the eventual view.”422 A child’s decision-making abilities will often, therefore, depend on the assistance and space which they have been given to understand their situation. 7.4

Concluding Thoughts on Children’s Decision-Making Capacities But no one realises that I have already had to grow up faster than anyone else …423

We have an intense preoccupation as to whether children are “like adults”.424 The reliance on developmental psychology is problematic as the measurement 419 crin, note 158. 420 pbs, Frontline, Inside the Teenage Brain: Interview with Jay Giedd (date unknown) Available at: http://www.pbs.org/wgbh/pages/frontline/shows/teenbrain/interviews/giedd .html (last accessed 23 Mar. 2017). 421 Ibid. Neuroscientist Giedd states that: “[T]he gr[e]y matter, or thinking part of the brain, continues to thicken throughout childhood as the brain cells get extra connections, much like a tree growing extra branches, twigs and roots. In the frontal part of the brain, the part of the brain involved in judgment, organi[s]ation, planning, strategi[s]ing – those very skills that teens get better and better at – this process of thickening of the gr[e]y matter peaks at about age 11 in girls and age 12 in boys.” 422 Priscilla Alderson, “Giving Children’s Views ‘Due Weight’ in Medical Law” International Journal of Children’s Rights (forthcoming 2017). 423 Hannah Jones aged 13 years, quoted in Barkham, note 260. 424 See for example Piker, note 395 and Partridge, note 394.

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of children’s decision-making abilities is contested and there are many arguments about what capacity is and how, if at all, it can or should be measured.425 Considering the many factors considered above – background, parenting style, life experience and other matters, it seems that age, though it counts to some extent,426 is far from the sole factor in determining decision-making abilities and our fixation with age belies the fact that it is actually very difficult to generalise in terms of what children can do (or should be able to do) at a particular age.427 There is a lack of clarity in the research, and paradoxes exist. There is tremendous cognitive skills in adolescence, yet individual potential may sometimes be unreached, as “rational decision …[is] overridden by emotional reactivity.”428 There is very broad agreement that the matter is unsettled, and that further research is needed on children’s decision-making abilities.429 Also, it is not always clear that what is being measured in this research – whether it be a marshmallow test, a dice game, or a questionnaire – has any bearing on what an child may do in a real life high-stakes decision where, for example, their safety is endangered. It is not always clear how exactly adolescents differ from adults in equivalent situations, as adults will also be influenced, for example, by peer pressure, and by temptations with high rewards. There is evidence for leaps in decision-making abilities at age seven, 12 and 18 years, but the brain is not fully developed until our mid-20s. The diverse findings in the research seems to indicate that it is impossible to define rigid ages at which capacity emerges,430 and neuroscience points to ‘undeveloped’ adults (that is those aged 18 to 25 years) as well as children!431 One thing is very clear – the context in which the child makes the decision is crucial. One 425 Buss, note 52, at 13. 426 Rutter and Rutter make the point that no amount of training will, for example, enable a four month old baby to walk. Michael Rutter and Marjorie Rutter, Developing Minds: Challenge and Continuity Across the Lifespan (Penguin, 1993), at 195. 427 Sheila Greene, “Children as Social Actors” Paper presented at Irish Human Rights Commission and Law Society of Ireland Conference: Achieving Rights-Based Child Law (Dublin, 14 Oct. 2006), at 4. 428 Valerie Reyna et al., The Adolescent Brain: Learning, Reasoning and Decision Making (American Psychological Association, 2012). 429 See for example Hein et al., note 195. 430 Lansdown, note 149, at 24. Greene also states that our fixation in the ‘West’ with age – and with what age can imply about the competence of a particular child – belies the fact that it is actually very difficult to generalise in terms of what children can do (or should be able to do) at a particular age. Greene, note 427, at 4. 431 Partridge, note 394, at 522.

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might not generally expect under-18s to make decisions as well as adults do under certain circumstances – for example those involving in-the-moment stress, emotion, peer pressure, or where children face risks but with high potential rewards. This is why children should not be treated the same as adults in the criminal justice context. Yet where children have time and support to make decisions, they can make them just as well as adults can.432 And much of the literature – and laws – around the right of children to be heard in family law proceedings appears uninformed by this important information. This likely means that policy-makers, theorists, as well as legal and other practitioners, all underestimate children’s decision-making abilities. Children should not have to act, speak, think exactly like adults to enjoy respect for their autonomy. The greatest obstacles to children’s decision-making abilities likely arise from prejudices about children, and beliefs that it is unwise to listen to children.433 As there is so much uncertainty in the research, and as the requirements for capacity are so strict that few adults could actually reach them,434 then we need to shift from what children may know and understand. We must instead ask how children’s autonomy can be supported and identify situations in which paternalism is genuinely warranted. This focus would be far more justifiable than a focus on some ideal of ‘capacity’ that is impossible to measure and possibly does not exist.

Conclusions on Children and Autonomy [A]dults do not have a monopoly of wisdom…435

The reason why autonomy is valued perhaps above all other qualities in the liberal democracy is that we see ourselves as rational beings, deserving of dignity and control over our own destinies. A perception of autonomy has been proven to be linked to better mental health, and even to academic and other achievements amongst children.436 This makes it all the more extraordinary 432 Leeson argues that in reality it is “about adult ability and preparedness to involve young people in decisions about their own lives, rather than whether they are able to participate effectively.” Caroline Leeson, “My Life in Care: Experiences of Non-Participation in Decision Making Processes” 12 Child and Family Social Work 268 (2007), at 268. 433 Priscilla Alderson and Jonathan Montgomery, Healthcare Choices: Making Decisions with Children Vol 2, (Institute for Public Policy Research, 1996) at 58. 434 Herring, note 15, at 2. 435 Thomas and O’Kane, note 347, at 151. 436 See Section 3.2 above.

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that there has been so little progress in negotiating how to approach the adult/ child legal dichotomy, a divide which essentially denies children any legal control over their own persons. Perhaps it makes it easier for adults to embrace the notion of ‘autonomy’ for children – both in proceedings and more generally – if we understand a few basic points about autonomy which are often overlooked. Autonomy must be understood in a relational way – our environments lead us to hold the values and understandings that we do, and our autonomy is inevitably exercised in a way which takes account of those important in our lives. Furthermore, autonomy is not a selfish principle. It not only involves others respecting us – it also requires us to respect the dignity of others. Autonomy for children, therefore, necessitates consideration of the position and involvement of parents and others. Children require ‘autonomy support’ to ensure that they do not stand alone in their decision-making process – they should have the input of others to assist them in exploring information and options. The adult/child dichotomy, in which children are seen as incapacitated, fails to permit nuance in best interest proceedings. Although under-18s clearly require protection (to some extent) as compared with adults, this strict division is highly questionable. Advances in neurobiology highlights that our brains do not reach full maturity until our mid-20s at least,437 challenging many of our assumptions about the child/adult divide.438 Empirical research demonstrates that although children do not reason as ‘well’ as adults, context is crucial (because with help, they often can), and it is very difficult to generalise about what children can do at a particular age. The approach to the matter of capacity to consent in medical law further highlights the problems inherent in the capacity/lack of capacity (and adult/ child) dichotomy. In some cases in which adults are putting their lives in d­ anger through irrational decision-making, the courts appear to make determinations in line with principles other than the upholding of autonomy for all with ­capacity – principles such as justice and morality.439 Indeed there are strong arguments that capacity should not be the totality of autonomy.440 Respecting autonomy requires that we recognise where individuals require paternalism,441 437 See for example Giedd, note 372. 438 Ibid. 439 See for example Re m.b. (An Adult: Medical Treatment) [1997] ewca Civ 1361 and Re L. (Patient: Non-Consensual Treatment) [1997] 2 flr 837. 440 Foster, note 31, at 93. 441 Herring and Wall, note 52.

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and there are calls for greater honesty in the law about the need for such paternalism, occasionally even for adults who arguably have capacity.442 Just as commentators have been strongly critiquing the capacity notion as determinative of autonomy in many cases concerning adults, it is also time to move away from our preoccupation with children’s ‘capacity’. Whether children have capacity or not, they may (like adults443) require paternalism from the courts – something which we have seen the courts grapple with in blood transfusion refusal cases such as Re E.444 and Re S.445 In best interest proceedings beyond medical law, we must likewise insist on a distinction b­ etween the denial of children’s autonomy where children genuinely need protection on the one hand; and unjustifiable levels of paternalism on the other. The children’s autonomy principle would facilitate a measure of flexibility and ­nuance for children that the premise of the best interest principle – children as ­incapacitated – does not permit. 442 443 444 445

Foster, note 31; Herring, note 15. See note 439. [1993] 1 flr 386. [1994] 2 flr 1065.

chapter 4

Ensuring Good Processes for Children through Respect for Autonomy I know if I got a judgment that I wasn’t completely happy with, but I had an active role in the process, I might not have resented it so much, because I would have felt, ‘OK at least my voice was properly heard’.1

∵ Introduction It has been argued in the previous chapters that the theory behind and the text of the crc Article 12 ‘right of children to be heard’ has proven inadequate in the context of best interest proceedings, because (amongst other things) it fails to account for the enormous paternalism of those proceedings; it fails to mitigate the somewhat artificial adult/child dichotomy; and it fails to accord children due process rights. This chapter considers examples of practice from around the world relating to the process of hearing children (outcomes are examined in Chapter 5) in best interest proceedings. Overall the picture is not positive: Children are routinely excluded from proceedings about their best interests, and many processes fail to adequately support children where they are involved or ‘heard’ in such proceedings. It will be highlighted in this chapter, therefore, that Article 12 has not had the implementation impact that one would expect, considering the right to be heard is heralded as such a ground-breaking provision for children’s rights. Global research points to many jurisdictions failing to provide for Article 12 in domestic law, and failing to perceive hearing children as a ‘right’ of the child. It is instead overwhelmingly presented as a possibility available to the court; particularly in common law countries. Younger children are exceptionally unlikely to enjoy their right to be heard. Important factors – factors necessary for children to be heard as a right – are inevitably neglected. These include: 1 Fourteen year old girl quoted in Judy Cashmore, “Children’s Participation in Family Law ­Decision-Making: Theoretical Approaches to Understanding Children’s Views” 33 Child ­Inclusive Research, Policy and Practice, Children and Youth Services Review 515 (2011), at 517. © koninklijke brill nv, leiden, ���� | doi 10.1163/9789004355828_006

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A presumption in favour of being heard; involvement in the case from the earliest point and a representative of wishes rather than interests. A particularly important issue for the enjoyment of the right to be heard is the training of professionals to ensure that the involvement of children in proceedings is not made unnecessarily difficult by practice which is not child-friendly. Although the Committee on the Rights of the Child has elaborated to some extent on how the right to be heard should be interpreted in practice,2 this chapter highlights that states have not implemented this advice. As it stands, it is all too easy for adults to side line children; to neglect and diminish their due process rights when they prove inconvenient (and they overwhelmingly are inconvenient in an age of legal aid cuts); and ultimately exclude them from their own proceedings. The vagueness of the notion of ‘hearing’ a child is likely responsible (at least in part) for the failure by states to facilitate children’s involvement. The overriding argument of this book is that a children’s autonomy principle should be adopted in respect of children’s involvement in best interest proceedings. In Chapter 1, an ‘ideal’ Article 12(2) is presented in which it is emphasised that, in best interest proceedings “[c]hildren should get to choose – if they wish – how they are involved (process autonomy) … unless it is likely that significant harm will arise from their preferences.”3 Children, rather than adults, should decide how (and whether) they are heard on matters affecting them.4 This chapter begins by providing a global overview of the right to be heard in best interest proceedings. Implementation in legal systems is then examined, as is the fact that a rights deficit exists when it comes to hearing children in such proceedings. Problems with the point at which children become involved in proceedings are considered, such as the level of ‘capacity’ which children are perceived to require; the training which professionals need; and the issue of resources which means children are often unheard in private family law cases. The various means through which children are heard are then examined. In states such as Spain, Germany and France children appear to be heard by decision-makers relatively regularly, though judges may lack training 2 See Chapter 1, Section 5 and in particular see Committee on the Rights of the Child, General Comment No. 12: The Right to be Heard (1 July 2009) CRC/C/GC/12. It Chapter 1 it is highlighted however that the Committee has not resolved many of the issues associated with Article 12(2), for example many questions of due process rights such as legal standing for children in best interest proceedings. 3 Section 8.2. 4 It should be noted that the Committee already emphasises that children should choose how and whether they are heard. See Committee on the Rights of the Child, General Comment No. 12, note 2, paras 35 and 41.

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and younger children are often excluded. Common law countries fare poorly when it comes to facilitating children to speak directly to those making decisions concerning them, although children appear to more frequently have the benefit of advocate-type professionals such as guardians ad litem.5 It is outlined that although it is clear that children require advocates for their wishes, more often than not it is their perceived ‘best interests’ which are advocated in court. Other matters relating to due process, for example legal standing and presence in court, are then considered; with the predictable conclusion that children generally enjoy a right to neither. The findings concerning global practice point strongly to the need for a change in focus from ‘being heard’ to autonomy and due process rights. 1

Provision at National Level for the Right of Children to be Heard in Best Interest Proceedings: Being Heard is Not Seen as a Right Because sometimes, if you tell your parent something and they tell the court, the court might not really believe them … but if you tell a part of the court’s staff then they’ve got evidence of what you’ve said.6

In order to ascertain the success of the right to be heard in progressing children’s rights in best interest proceedings, it is first necessary to examine the level of implementation of that right at national level. Fortunately, the right of children to be heard, or ‘participation’, is an area in which a wealth of literature has been produced in recent years7 and the matter of the right to be 5 These court-appointed representatives of children’s interests and wishes are to be found in a number of jurisdictions. They are usually professionals with a social work background and are referred to in England and Wales as ‘children’s guardians’. 6 Eleven year old boy with experience of family law proceedings, quoted in Gillian Douglas et al., Research into the Operation of Rule 9.5 of the Family Proceedings Rules, 1991 (Department for Constitutional Affairs, 2006), at 57. 7 For relevant literature see for example Aisling Parkes, Children and International Human Rights Law: The Right of Children to be Heard (Routledge, 2013); Kay Tisdall et al., “Reflecting Upon Children and Young People’s Participation in the uk” 16 International Journal of Children’s Rights 343 (2008); Laura Lundy, “Voice is not Enough: Conceptualising Article 12 of the United Nations Convention on the Rights of the Child” 33 British Educational Research Journal 927 (2007); Fiona Ang et al., eds, Participation Rights of Children (Intersentia, 2006); Gerison Lansdown, The Evolving Capacities of the Child (unicef/Save the Children, 2005); and Roger Hart, Children’s Participation: From Tokenism to Citizen (unicef, 1992). As regards the attention accorded to the topic by international and regional institutions, see for example­

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heard in proceedings has in particular enjoyed an upsurge in interest.8 The topicality is such that there are now a handful of comparative research studies on the representation of children, or on children’s access to justice, across different jurisdictions. These studies are very valuable for the current research as they permit some understanding of the global context, in particular providing quantitative information on global trends. The Level of Enjoyment of the Right to be Heard in Best Interest Proceedings Global research studies largely point to low levels of enjoyment by children of the right to be heard in proceedings in which their best interests are determined. The Representing Children Worldwide comparative project on how children are heard in child protection proceedings9 (as opposed to best interest proceedings more broadly) found that the laws of 42% of states provided for hearing children in such proceedings;10 but that 58% not have such

1.1

8

9

10

Committee on the Rights of the Child, General Comment No. 12, note 2; and Guidelines of the Committee of Ministers of the Council of Europe on Child-Friendly Justice (2010). See for example Kay Tisdall et al., “Children’s Participation in Court Proceedings when Parents Divorce or Separate: Legal Constructions and Lived Experiences” 14 Law and Childhood Studies: Current Legal Issues 156 (2012); Nicola Taylor et al., “International Models of Child Participation in Family Law Proceedings following Parental Separation/ Divorce” 20 International Journal of Children’s Rights 645 (2012); Daniel O’ Donnell, The Right to be Heard: Children’s Right to have their Views taken into Account and to Participate in Legal and Administrative Proceedings (unicef Innocenti Research Centre, 2009); Patrick Parkinson and Judy Cashmore, The Voice of a Child in Family Law Disputes (Oxford University Press, 2008); Rosemary Hunter, “Close Encounters of a Judicial Kind: ‘Hearing’ Children’s ‘Voices’ in Family Law Proceedings” 19 Child and Family Law Quarterly 283 (2007); Jean Koh Peters, Representing Children in Child Protective Proceedings: Ethical and Practical Dimensions (3rd edn, LexisNexis, 2007); Cashmore, note 1; Inge Clissman and Paul Hutchinson, “The Right of the Child to be Heard in Guardianship, Custody and Access Cases” 9 Irish Journal of Family Law 11 (2006). An extensive website is available which presents the information compiled. See Representing Children Worldwide, How Children’s Voices are Heard in Protective Proceedings. Available at: http://www.law.yale.edu/rcw/rcw/about.htm (last accessed 8 May 2014). See also Koh Peters, note 8. The study covered 194 ratifying states of the crc and all us states. The primary focus was on the legislation in place in each jurisdiction. Taking categories i, ii and iii together. See Koh Peters, at 118. See also Representing Children Worldwide, How Children’s Voices are Heard in Protective Proceedings, Summary by Chart. Available at: http://www.law.yale.edu/rcw/rcw/about.htm (last accessed 18 July 2014).

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provisions.11 Almost 31 states seemed to have no child protection systems in place at all and so failing to hear children was far from the only problem.12 This research was conducted in 2005 yet more recent research paints a similarly disappointing picture. A study conducted by Childwatch International Research Network in 200713 examined children’s participation rights in private family law proceedings in 13 states.14 Overall, children were frequently heard in about half of the states examined, and it was unusual for children to be heard in the other half.15 It was identified that children have “some” opportunity to participate in family law proceedings in five of the states examined, “quite a lot” in four, but in none of the states examined do children have the opportunity to be heard “a great deal.”16 In 2016 research conducted by Child Rights International Network identified how and whether children can access justice in each state around the world.17 It is focused on all types of proceedings. It was found that approximately a quarter of countries (55) enshrine a right of children to be heard in all matters concerning them, (which may or may not apply to judicial proceedings in practice); a further 84 states guarantee a right to be heard in certain types of legal proceedings,18 with 58 states having no provision for the right to be

11

12 13 14

15 16

17 18

Ibid. In the case of some states, there was insufficient information available to indicate otherwise. As the researchers went to great efforts to find information and identify professionals in relevant states to confirm available information, it was likely that if they could not identify whether there were laws and mechanisms for hearing children, it meant that there were none. In many states there were simply no formal child protection systems at all. Ibid. Childwatch International Research Network is a consortium of ngos which specialises in children’s research and also aims to progress children’s rights. The 13 states were Australia, Canada (British Columbia), Costa Rica, England/Wales, New Zealand, Nigeria, Northern Ireland, Republic of Ireland, India, Israel, Japan, Scotland and the us (South Carolina). Taylor et al., note 8, at 650. Child protection proceedings were not considered in the study. Thirteen Childwatch-affiliated institutions completed a questionnaire and the findings are therefore a reflection of the perceptions of the individual respondents. Ibid, at 651. Nicola Taylor and Megan Gollop, Children’s Participation in Family Law Proceedings: Research Report for the Childwatch International Children and the Law Study Group Children’s Issues Centre, University of Otago, New Zealand (Childwatch International, 2007), at 9. Child Rights International Network, Rights, Remedies and Representation: Global Report on Access to Justice for Children (Child Rights International Network, 2016). Ibid., at 18.

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heard.19 The Child Rights International Network research highlights enormous challenges for children’s access to due process rights, determining that laws around the world “overwhelmingly enshrine a general rule that children lack the standing to approach courts by themselves and require children to do so through a representative”;20 that children are usually required to act through parents (though their rights and interests can conflict);21 and a negligible amount of states make legal aid available to children outside of the criminal law context.22 All of this global data highlights that, unsurprisingly, states have provided (or not) for hearing children in their legal systems in a number of different forms, depending on the law, history and culture particular to various jurisdictions.23 Childwatch International Research Network found that in family law children may be heard through lawyers, welfare officers and guardians ad litem, with significant variation in the roles of such representatives.24 Similarly, the Representing Children Worldwide research identified many different ways of hearing children in child protection proceedings. It established that in 2005, of 192 ratifying parties to the crc, 72 states allowed for hearing children directly in child protection proceedings,25 and in 52 states children could be heard through a representative or body.26 It was also found that practice can range, for example, from provision of a ‘best interest’ representative; to provision of a legal representative (sometimes advocating children’s wishes); to the ability of children to be heard by the judge; or in some states all of the above.

19 20 21

Ibid., at 19. Ibid., at 17. Ibid. It is noted that only 14 states globally require that parents or other legal representatives act in the best interests of the child in legal proceedings, in spite of the fact that clearly, where parents have taken on the role of litigating in their children’s interests, this should be their explicit responsibility. Ibid., at 18. 22 Ibid., at 29. 23 Taylor et al., note 8, at 669. See Rap who identifies a similar picture in the global implementation of standards of youth justice. Stephanie Rap, “A Children’s Rights Perspective on the Participation of Juvenile Defendants in the Youth Court” 24 International Journal of Children’s Rights 93 (2016). 24 Taylor et al., note 8, at 652. The authors suggest that the primary mechanisms for the participation of children in family law proceedings are lawyers appointed for the child; and judicial interviews. Ibid., at 670. 25 Koh Peters, note 8, at 103. 26 Koh Peters, ibid, at 103–4. See also Representing Children Worldwide, note 10.

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It seems that states from the French legal tradition, including France,27 Mauritius,28 Belgium29 and Luxembourg,30 have done well when it comes to speaking to the decision-maker, generally permitting children “capable of discernment” to request to be heard directly by the court or judge in any proceedings concerning them.31 The 58 states which have not legislated for hearing children are spread across the Americas, Asia, Africa and the Middle East and North Africa region.32 States in these regions are less likely to be defined as liberal democracies,33 pointing to the fact that the right to be heard is, predictably, more prevalent in liberal democracies. The striking theme emerging from this research is that, although it seems that there are often legislative provisions for children to be heard at national level, this is frequently limited to certain areas of the law, and how ‘hearing children’ is to be put into practice is often not specified. Judges speak directly to children in many countries, even where there is no law mandating this. Guardians ad litem are sometimes appointed, but frequently there is no requirement that they report the child’s views. This level of discretion is evident in many states and it appears that whether children are heard is primarily dependent on the ability (in terms of having the resources of time and funding) and inclination of the professionals involved. There are a number of other matters evident from the research, for example the diversity of ages set by states for different purposes; the devaluing of the need to hear younger children (which is often implicitly understood rather than legally mandated);34 and the varying contexts across states in which children can initiate proceedings themselves.35 Tonga is a particularly good example of this uncertainty, identified by the Representing Children Worldwide research as having a wide range of possibilities for hearing children:

27 28 29 30 31 32 33 34

35

France’s Civil Code, Article 388-1. Mauritius’ Civil Code, Section 388-1. Judicial Code, Article 1004/1: Youth Protection Law. Third and Fourth Periodic Reports of Luxembourg to the un Committee on the Rights of the Child (12 November 2012) CRC/C/LUX/3-4, paras. 86 and 145. See for example Child Rights International Network, note 17, at 18. Ibid, at 18. See list produced in Freedom House, Freedom in the World 2016 (Freedom House, 2016), at 12–3. See for example Judith Cashmore, “Children’s Participation in Family Law DecisionMaking: Theoretical Approaches to Understanding Children’s Views” 33 Child Inclusive Research, Policy and Practice, Children and Youth Services Review 515 (2011), at 517. See below Section 3.3.1.

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As a general matter, the Guardianship Act requires the Court to ascertain the wishes of the child when making determinations in child protective proceedings. While no laws set forth the process by which a child expresses his or her opinions, judges often ask a child to express his or her wishes directly to the court during informal bench hearings which take place privately in the judge’s chambers. Statute provides that a court may appoint an attorney for the child in such cases, but this rarely happens in practice. Courts also have a statutory discretion to appoint a guardian ad litem for the child. In practice, this is typical. However, the [guardian ad litem] will often – at its discretion – interview the child, there is no duty for the [guardian ad litem] to represent the child’s view [to] the Court.36 It appears that many states have a number of avenues through which children can hypothetically be heard but, that said, discretion is such that in spite of the existence of all these options children may still be left unheard altogether. Before we can even begin to answer the question of whether hearing children leads to any substantive difference to outcomes in cases concerning them, we have to face the unhappy conclusion that children – in reality – often do not access the process in the first place, particularly in family law. The Gap between Incorporation of the Right into Law and the Reality of Practice Before the advent of the crc, practices involving hearing children were already in place in some circumstances.37 Yet there is evidence that the crc subsequently had a legislative impact: crin has identified that approximately 94 states out of 197 have incorporated the crc into national law.38 Article 12 is the second of the general principles most likely to be represented in national law,

1.2

36 37 38

Representing Children Worldwide, note 10. In Scotland, for example, the Children’s Hearings system – in which children’s involvement in some types of cases is considered key – was developed in the 1960s. Child Rights International Network, note 17, at 15. A further 28 have “partly” incorporated the crc. unicef Innocenti Research Centre examined the laws of 52 states in 2007 determining that two thirds of the countries examined having directly incorporated the instrument into domestic law. unicef Innocenti Research Centre, note 8, at 5. Nine states from Asia and the Pacific, 8 from Central and Eastern Europe, 11 Islamic states, 6 from sub-Saharan Africa, 14 from the Americas and four from Western Europe were examined. unicef Innocenti Research Centre, at 1.

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after the best interest principle.39 Once the right to be heard has been newly enshrined in law, however, it may or may not transform practice. Consider these two contrasting examples. In Tunisia a Child Protection Code has been adopted containing wording similar to Article 12,40 and it seems that it has had a very positive effect on practice – children now have a right to legal representation in non-criminal proceedings,41 and family judges must conduct hearings with both children and parents when making best interest decisions about children.42 Nigeria, on the other hand similarly has strong provision for children’s rights on paper in the form of the Child Rights Act of Nigeria;43 including a right to be heard in proceedings44 and a presumption in favour of appointment of a lawyer guardian ad litem,45 yet in practice there is a lack of implementation of the Act across Nigeria, due to significant variations in practice at local level amongst other things.46 This means that the Child Rights Act has had little real impact for children in Nigeria, with child protection in many areas remaining a (private) charitable endeavour rather than a responsibility of state authorities.47 It was reported in 2014 that in Nigeria’s federal system, 26 of 37 states have failed to adopt the Act, and those that have are failing to implement it.48

39 40

41 42

43 44 45

46 47 48

Laura Lundy et al., The un Convention on the Rights of the Child: A Study of Legal Implementation in 12 Countries (unicef, 2012), at 4. unicef Innocenti Research Centre, ibid, at 28. See Code of the Protection of the Child 1995 (Tunisia). Article 10 of that instrument states that: The current code guarantees the child the right to express freely his opinions, and these opinions will deserve to be considered according to the child’s age and maturity, and to this end the child will be given the opportunity to express his opinions and be heard in the judicial proceedings as well as the scholastic and social measures that concern his situation. unicef Innocenti Research Centre, note 8, at 19. Representing Children Worldwide, How Children’s Voices are Heard in Protective Proceedings, Tunisia: Summary Analysis. Available at: http://www.law.yale.edu/rcw/rcw/jurisdictions/ afn/tunisia/frontpage.htm (last accessed 25 October 2014). unicef Innocenti Research Centre, note 8, at 28. Child Rights Act 2003 (Nigeria), Section 158. See unicef Innocenti Research Centre, at 28. Representing Children Worldwide, How Children’s Voices are Heard in Protective Proceedings, Nigeria: Summary Analysis. Available at: http://www.law.yale.edu/rcw/rcw/jurisdictions/ afw/nigeria/frontpage.htm (last accessed 24 October 2014). Ibid. Ibid. See further “Nigeria’s Child Rights Act Non-Functional, Activists Say” Premium Times (14 May 2014). Available at: https://www.premiumtimesng.com/news/161510-nigerias -child-rights-act-non-functional-activists-say.html (last accessed 24 October 2014).

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Therefore truly embedding the right to be heard – or any of the crc rights for that matter – requires more than legal change. Different methods of law reform have been engaged across states, such as the adoption of ‘children’s codes’, or the gradual reform of existing law.49 No one model of implementation is necessarily best,50 and no one method of incorporation is sufficient on its own.51 Lundy et al. theorise that “a deliberate decision to incorporate (as in Norway) might have more impact than instances where the crc has automatically become part of domestic law upon ratification (Belgium, Spain).”52 But the research also establishes that whether or not incorporation works well is correlated with whether a process of awareness-raising accompanied it.53 There is evidence, for example, that in Tunisia there were large-scale and holistic efforts regarding reform, training and information-sharing with other countries.54 It is likely that this grassroots engagement made all the difference for implementation of the right in reality. Clearly, to achieve consistency in children’s involvement in best interest proceedings, law reform and other measures such as awareness-raising and training are necessary. A crucial part of this should be ensuring awareness of this involvement as a right. 1.3

Being Heard is Not Seen as a ‘Right’: Children Left Unheard [Is] (a child’s) voice not just as important as everyone else’s? Well I believe it is and this one little thing could make a big difference to their lives and future.55

The crc Article 12 right of children to be heard is, self-evidently, a children’s right. In the context of best interest proceedings, it should not need clarification that it is the right of the child in question in a given proceeding. It is not simply an evidential necessity, nor is it the right of anyone other than the child, for example the right of a parent or the state. Yet numerous research studies highlight that hearing children is rarely seen solely as a right of the child. 49 unicef Innocenti Research Centre, note 8, at viii and Lundy et al., note 39, at 4. 50 unicef Innocenti Research Centre, ibid, at 5. See also Lundy et al., ibid, at 4 and 100. 51 unicef Innocenti Research Centre, ibid, at 103. 52 Lundy et al., note 39, at 101. 53 Ibid. 54 See Representing Children Worldwide, Tunisia, note 42. 55 Fifteen year old girl speaking about child inclusion in family court proceedings quoted in Jennifer McIntosh, “Four Young People Speak about Children’s Involvement in Family Court Matters” 15 Journal of Family Studies 98 (2009), at 101.

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Rather than something which benefits children, their wishes appear to be frequently used as “strategic resources”56 to further whatever argument is being made. This is perhaps unsurprising in the context of common-law, adversarial systems in which parties are encouraged to use whatever tools are at their disposal to further their case. The argument that children have been ‘brainwashed’ by the resident parent, for example, is a useful device in the context of adversarial litigation.57 In Hague Convention cases there is a sense that children’s wishes are sometimes “raised very late in the day and seen as a ‘last ditch stand’ on the part of the abducting parent.”58 Perhaps surprisingly it has been found that even professionals in private law proceedings instrumentalise children’s views. It has been found in England and Wales for example that guardians ad litem rely on children’s wishes to bolster their own perspectives and arguments in family law,59 as do social workers in the area of child protection.60 This instrumentalisation of children’s wishes in proceedings could be used as an argument for excluding children’s wishes from that forum. I refute this argument in Chapter 661 – this is a problem for adults to solve, not a reason for a denial of children’s rights. Judges too can misunderstand the purpose of hearing children. Hearing children is sometimes seen as something which is primarily good for their well-being, rather than a procedural guarantee which they deserve because their interests are being determined by a court (and consequently due process rights arise from that). Research in Israel, for example, indicates that judges can perceive the exercise of hearing children as a therapeutic endeavour rather than a right of children, and are sometimes reluctant to engage in this exercise as a consequence.62 In a New Zealand case in which it was being determined 56

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Liz Trinder, Christopher Jenks and Alan Firth, “Talking Children into being in Absentia?: Children as a Strategic and Contingent Resource in Family Court Dispute Resolution” 22 Child and Family Law Quarterly 234 (2010). Janet Johnston, “Children of Divorce Who Reject a Parent and Refuse Visitation: Recent Research and Social Policy Implications for the Alienated Child” 38 Family Law Quarterly 757 (2005), at 760. Quote from the judge in D. (A Child) (International Recognition) [2016] ewca Civ 12, para. 61. Trinder, Jenks and Firth, note 56. See Karen Winter, “Decision-making Processes in Review Meetings for Children in Care: A Bourdieusian Analysis” in Leena Alanen et al., eds, Childhood with Bourdieu (Palgrave Macmillan, 2015). See Chapter 6, Section 4. Tamar Morag and Yoa Sorek, “Children’s Participation in Israeli Family Courts – An Account of an Ongoing Learning Process” in Benadetta Faedi-Duramy and Tali Gal, eds,

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whether a four year old child should be heard, the court was persuaded by the argument that children should be heard in order to show them “respect”, even if they were not to have an influence.63 Whilst respect is of course a positive value to adopt when it comes to children’s involvement in proceedings, it does not seem respectful to tokenistically be ‘heard’ in an exercise in which one has little or no influence. There is also sometimes confusion about whether, when judges meet children directly, this is to be considered an evidence-gathering exercise. In England and Wales in the rare instances when judges meet with children it is not for the purpose of gathering evidence. In an appeal in a case where a judge had basically cross-examined the child to test the ‘rationality’ of her views,64 the appeal court stated that the judicial interview is to be considered “a two way transmission in which the young person says what they wish to say and the judge explains the court’s role …”65 In Scotland, although children are required to attend child protection hearings and it is viewed to some degree as an opportunity for children to be heard, there are indications that, in reality, those overseeing proceedings rely on what children are saying as “primarily evidence that is useful to them in determining the child’s needs and only secondarily (if at all) important as a free speech exercise for the child.”66 Much of the problem with the failure to perceive ‘being heard’ as a child’s rights appears to lie in the hugely discretional framing of hearing children in proceedings. In England and Wales, judges have discretion as to whether to hear children in family law proceedings to the extent that whether they have a right to be heard is debatable.67 The decision-maker has almost total control of whether the process of hearing a child is initiated. Even in Germany, where judges hear children as a matter of course, they do not wish to feel obliged to do it.68

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International Perspectives and Empirical Findings on Child Participation: From Social Exclusion to Child-Inclusive Policies (Oxford University Press, 2015), at 24. h.c. v p.s. CA115/06 [2006] nzca 465. Re k.p. (A Child) [2014] ewca 554, para. 56. Ibid, para. 29. Anne Griffiths and Randy Kandel, “Children’s Confidentiality at the Crossroad: Challenges for the Scottish Children’s Hearing System” 28 Journal of Social Welfare and Family Law 137 (2006), at 142. See further on the generalities and complexities of the system Jane Fortin, Children’s Rights and the Developing Law (3rd edn, Cambridge University Press, 2009). Michael Karle and Sandra Gathmann, “The State of the Art of Child Hearings in Germany: Results of a Nationwide Representative Study in German Courts” 54 Family Court Review 167 (2016), at 172.

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There are many states – notably Northern European and outside of the common law system69 – which appear to do relatively well when it comes to the right of children to be heard (on paper at least). In France, Loi n2007-293 establishes a general right for children to be heard in all proceedings.70 In Norway, of 292 family law decisions examined by Skjørten 90% of children over the age of seven were heard.71 In Scotland, the court must give children the opportunity to be heard in a family law case, bearing in mind age and maturity.72 As a consequence, appeals can be made in some states on the basis that children have been denied their opportunity to be heard.73 Yet even in states where there is strong provision for hearing children, in practice, many children are left unheard. In France, the right will only be implemented if a child requests it74 and in the Netherlands children can similarly be left unheard because of a lack of awareness amongst children of the options available to them.75 One study in France found that judges tend not to seek the views of children under 10.76 In 69

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That is, civil law and Nordic systems. Leviner describes the Nordic legal tradition as ‘a third way’ which cannot be firmly classified as either common law or civil law systems. Like civil law systems, the Swedish system for example is bound by legislation like civil law systems, yet cases from the highest courts are accorded a level of importance which is more in line with common law systems. Nevertheless the system inclines more towards civil law as the courts, rather than ‘making law’, are only to determine the intent of the legislator in applying the law. Pernilla Leviner, “Child Protection Under Swedish Law: Legal Duality and Uncertainty” 17 European Journal of Social Work 206 (2014), at 210. Loi n2007-293 du 5 mars 2007 sur la Protection de l’Enfance. Kirsten Skjørten, “Children’s Voices in Norwegian Custody Cases” 27 International Journal of Law, Policy and the Family 289 (2013), at 296–7. Section 11(7) of the Children (Scotland) Act 1995. The ‘F9’ form is employed for this purpose, something which is under review at the time of writing. See Together (Scottish Alliance for Children’s Rights), Hearing the Voice of the Child in Family Actions: Form F9 Review (Together, Submission 25 Jan. 2016). See a recent successful appeal in France: Cass. 1 ere Civ, 18 mars 2015, n 14–11.392 (298 F-P+B). In Norway, however, the court decided in RT-2004-811 (Supreme Court case, 12 May 2004) that a failure to hear a 13 year old in a family law case was not a procedural error. Committee on the Rights of the Child, Consideration of Reports Submitted by States Parties Under Article 44 of the Convention CRC/C/FRA/CO/4 (12 June 2009), at 9. Lieke Coenraad, “Voices of Minor Children Heard and Unheard in Judicial Divorce Proceedings in the Netherlands” 36 Journal of Social Welfare and Family Law 370 (2014), at 378. In the Netherlands children have a right to be heard in court proceedings only where they are 12 years or older. It was also found that children of 10 and 11 years are in a ‘grey area’ with judges generally considering it appropriate to only hear children from age 12. Luc Briand, “L’Audition du Mineur Devant le jaf : Examen des Arrêts D’Appel”, aj Fam (2014), at 22. A 2015 Supreme

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Norway, children under seven years are rarely heard, children do not usually speak directly to the judge, and children are left unheard in mediation.77 It has been found in many studies in Scotland that, in spite of the many ways in which children can potentially be heard,78 they often are not, because judges fail to exercise their discretion to hear them.79 So, although there is something of a ‘right’ to be heard in these contexts, it is a limited right indeed. In England and Wales some progress was made in 2016 when in D. (A Child) (International Recognition)80 the court agreed with the argument that it was contrary to public policy not to hear a child in proceedings concerning them.81 This constitutes a step towards hearing children as a right in this jurisdiction, though it must be noted that the decision was taken in the context of international proceedings. As noted in Chapter 2, hearing children is taken much more seriously in Hague Convention cases, not least because of the possibility of using the child’s objection as a ground to resist the presumption in favour of return. Also the seriousness of the consequences of the Romanian order was repeatedly noted by the court in this case as a reason for the finding that failing to hear the child was contrary to public policy (“a complete change in his main carer”82), which begs the question as to whether in less dramatic c­ ircumstances Court case overturned a family law judgment, however, on the basis that no reason other than age was provided for failing to hear a child of nine years. Cass. 1 ere Civ, 18 mars 2015, n 14–11.392 (298 F-P+B). 77 Skjørten, note 71. 78 See for example Kay Tisdall, “Challenging Competency and Capacity? Due Regard to Children’s Views in Family Law Proceedings” International Journal of Children’s Rights (forthcoming 2017). 79 In 2010 research, in 39% of cases a social report was ordered. Judges rarely speak to children, and children rarely have a professional to speak with them or represent them. Scottish Government, Understanding Child Contact Cases in Scottish Sheriff Courts (Scottish Government, 2010), Section 7. McKay states that in her research “only 52 of the children (17%) were sent an ‘F9’ form inviting them to express a view if they wished.” Kirsteen Mckay, Hearing Children in Court: Disputes Between Parents (Centre for Research on Families and Relationships: Briefing 65, Jan. 2013), at 3–4. 80 [2016] ewca Civ 12, para. 49. 81 The respondent argued that a ‘right to be heard’ is not complied with in all proceedings and is therefore not a principle of public policy. The judge disagreed with this on the basis that procedural rules – para. 4.2 of the Child Arrangements Programme (pd 12B to Part 12 of the Family Procedure Rules 2010) – state that children should be at the centre of all decision making and para. 14.13 requires courts to ask “is the child aware of the proceedings” and “how is the child to be involved in the proceedings.” D. (A Child) (International Recognition) [2016] ewca Civ 12, para. 49. 82 Ibid., para. 108.

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the same conclusion (about whether it is contrary to public policy not to hear a child) would be reached. Yet it must be said that this was at least a limited victory for the right to be heard. There are two states in particular in which hearing children is ­particularly embedded in at least part of the legal system – child protection and most criminal law proceedings in Scotland, and family law proceedings in Israel. The Scottish children’s hearings system is a unique model which uses a lay panel to establish the welfare needs of children in cases concerning child care and children accused of a crime.83 It seeks to take a welfare-based approach free from many of the constraints of the formal legal system84 (although it has quasi-judicial powers).85 It involves a more informal setting in which the participation of children is key to the inception of the system.86 Generally children must attend the hearing, unless the hearing decides that the child does not have to attend due to a ‘welfare’ risk.87 In this sense it could be said that children have a ‘right to be heard’ as it is assumed they will be present and participate in proceedings88 – a highly unusual practice considering, globally, children are overwhelmingly absent from proceedings in which their best interests are determined.89 Another important example of embeddedness of a ‘right to be heard’ is in family law proceedings in Israel. Due to a recent policy change, the subsequent piloting of a new initiative, and the expansion of this initiative nationwide, they will now always be offered the opportunity to be heard in such proceedings, unless there are exceptional reasons not to,90 although in practice judges

83 84

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Section 67(2) of the Children’s Hearings (Scotland) Act 2011. Anne Griffiths and Randy Kandel, “The Governance of Children: From Welfare Justice to Proactive Regulation in the Scottish Children’s Hearings System” in Franz von BendaBeckmann et al., ed, Rules of Law and Laws of Ruling: On the Governance of Law (Ashgate, 2013), at 172. Kenneth McK Norrie, Children’s Hearings in Scotland (2nd edn, Thomson/W. Green, 2005), at 3; cited in Griffiths and Kandel, ibid, at 178. Griffiths and Kandel, note 66, at 149–50. Section 73 of the Children’s Hearings (Scotland) Act 2011. Griffiths and Kandel argue however that the purpose of the hearing is not about what the child wants, but the child as the centre of concern. See Anne Griffiths and Randy Kandel, “Hearing Children in Children’s Hearings” 3 Child and Family Law Quarterly 283 (2000), at 286. See below Section 3.3.2. Tamar Morag, “Child Participation in Family Courts” Paper presented at Conference on Child-Friendly Justice (Stockholm, 16–8 May 2014).

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exercise their discretion not to hear children to a very high degree.91 In any case, in Israel special sections on ‘child participation’ have even been established within the Social Services units of the family courts. These child participation sections are staffed by specialised participation social workers, who are assisted as necessary by psychologists.92 An overwhelming amount (93%) of children in one study reported being happy to be invited to participate.93 Recent research into the working of the Israel model indicates strongly that normalising the involvement of children in proceedings leads to very broad and positive acceptance of the value of this endeavour. Judges,94 lawyers95 and social workers moved from initial opposition to involving children to embracing its importance; in turn influencing parents to facilitate their children to participate, and to listen to their children’s views.96 Although there are a handful of good practice examples of systems which are equipped for hearing children as a matter of course, these appear to be in the minority. The many shortcomings of the vast majority of systems are inevitable where there is a failure to understand the nature of best interest proceedings. They involve decisions which are being taken on children’s behalf because they are children, and this means that great care should be taken not to deny children freedoms unjustifiably. They should be entitled to more than a ‘right to be heard’. This term is responsible at least in part for the failure to enshrine children’s status in such proceedings as a right – being ‘heard’ does not inspire a perception of children as equals. The connotations of the word inevitably contribute to the hugely discretionary approach to children’s involvement in proceedings. If children instead had a right to respect for their autonomy in the way proposed by the children’s autonomy principle – that they should have their wishes respected unless it was likely that significant harm would result – then it would be necessary to have a presumption in favour of engaging with children’s wishes in every case. States would have to ensure processes were in place through which to ascertain those wishes. These processes should only permit decision-makers to refrain from involving children in exceptional 91 92

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One study found that only 40% of children were being referred. See below Section 3.2.2. Tamar Morag, Dori Rivkin and Yoa Sorek, “Child Participation in the Family Courts: Lessons from the Israeli Governmental Pilot Project” 26 International Journal of Law, Policy and the Family 1 (2012), at 7. Ibid., at 15. Ibid., at 21. Morag and Sorek, note 62, at 22. Morag, Rivkin and Sorek, note 92, at 18.

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circumstances.­Instead, it seems on the face of it that in most states hearing children, particularly in family law cases, is far from a presumption – it is the exception rather than the rule.97 2

Providing the Opportunity to be Heard: Too Little Too Late? ‘Capability’, Being Heard ‘Freely’ and the Issue of Resources Kids should be involved from the start. If you’re gonna do something that affects them, and yeah, they should have some say of how it’s, how it looks and stuff.98

Legal aid budgets are in many states tighter than ever after the global recession and the attendant ‘austerity’ cuts. There is much temptation for a ‘right to be heard’ (if it is implemented) to ignore younger children, to be a one-off event, and to exclude children from most of the process. This is seen as conveniently saving money in the short-term.99 Without a clearer obligation than a ‘right to be heard’ it is likely that children will not be seen as having the status of the key individual in proceedings. There will be a likelihood that where children are fortunate enough to be heard, the process will be limited and adult-oriented. 2.1 At What Point Should the Opportunity be Provided? In the ideal Article 12(2) presented in Chapter 1,100 it is stated that: “Children are equal before the law, and states must ensure children’s access to justice. All children must be recognised as individual rights-holders, with party status and representation as appropriate, at all stages of proceedings concerning their best interests.” The approach espoused in this ideal Article 12(2) aims to secure respect for children’s autonomy and dignity as individuals, including a status for children that is embedded throughout proceedings. Yet a ‘right to be 97

See further Patrick Parkinson, Judy Cashmore and Judi Single, “Adolescents’ Views on the Fairness of Parenting and Financial Arrangements After Separation” 43 Family Court Review 429 (2005) in which half of children indicated they had no say in family law proceedings and Paul Beaumont, Lara Walker and Jayne Holliday, “Not Heard and Not Returned: The Reality of Article 11(8) Proceedings” 2 International Family Law 124 (2015): In the five European countries examined, very few children were found to have been heard in cases concerning international child abduction. 98 Child quoted in Alan Campbell, “I Wish the Views Were Clearer: Children’s Wishes and Views in Australian Family Law” 38 Children Australia 184 (2013), at 187. 99 See Chapter 7, Section 5.1 for greater consideration of how hearing children may actually reduce costs and cases. 100 Section 8.2.

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heard’, although it is emphasised by the Committee as an ongoing process, appears to be regularly interpreted to be a one-off event. Something which, once done, is done. But if children are not active participants (or at least consulted) throughout proceedings – which can be very lengthy indeed, and which can sometimes involve different courts, even different countries (in international cases) – then their right to heard can be ineffective indeed. As children develop and age it is likely that their family environments, their experiences and consequently their wishes will evolve so it is important that those wishes are ascertained at numerous points, particularly if litigation is lengthy. The parents of this girl clearly understood the dynamics of this: My parents discussed an arrangement and asked us whether we liked it. They also told us that this arrangement would not be forever, so it might change.101 The question of the point in proceedings at which children are first involved is a crucial one. If an emergency order is sought by social services where a child is perceived to be at immediate risk from parents, for example, does crc Article 12 require that arrangements are made for children to be heard at short notice, perhaps within hours, or is this an unrealistic expectation? There is no specification at international level about the speed at which children’s views must be heard in proceedings. Yet there is clear evidence that children should be heard from the very start of proceedings in order for their interests to be accorded sufficient attention. This has proven to be an issue even in child protection cases in a number of jurisdictions including in Ireland in my court observations,102 and Sweden.103 This issue also arose in England and Wales in 2012 in the case of R. (R. and Others (Minors)) v cafcass.104 Children’s guardians are supposed to be appointed

101 Eleven year old girl in Belgium, quoted in Sofie Maes, Jan De Mol and Ann Buysse, “Children’s Experiences and Meaning Construction on Parental Divorce: A Focus Group Study” 19 Childhood 266 (2001), at 275. 102 For example a judge expressed regret that a 17 year old girl in care had not been appointed a guardian ad litem earlier in a case observed in Dublin District Court, 2008, when it transpired that she was at substantial risk which he felt might have been established earlier had she been represented. Aoife Daly, The International Legal Right of Children to be Heard in Civil Law Proceedings Affecting them (Unpublished Ph.D. Thesis, Trinity College Dublin, 2010), at 332. 103 See for example Pernilla Leviner, “Child Participation through Legal Representatives in Swedish Child Protection: Challenges and Possibilities for Children to Influence Decisions about their Life Situation” International Journal of Children’s Rights (forthcoming 2017), at 15, noting that in most child protection cases children do not receive representation until they are already in state care. 104 R. (R. and Others (Minors)) v cafcass [2012] ewca Civ 853.

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automatically for children in child protection cases, and claimants argued that instances where there was late appointment (or no appointment in the case of one child)105 constituted, amongst other things, a breach of rights contained in the European Convention on Human Rights – Article 6 (right to a fair trial) and/or 8 (right to family life). The applicants acknowledged that it was problematic that it was not possible to identify exactly when the failure to appoint would become unlawful,106 but in any case argued that simply because a failure to appoint within an hour was not unlawful did not mean that unlawfulness could not arise at some time after this point.107 The Court of Appeal rejected the argument that cafcass,108 the body responsible for appointment, has a statutory duty109 to each individual child to appoint a guardian immediately or within a short time, instead holding that the duty to appoint guardians was a general one.110 This is despite the fact that the relevant procedural rules provide that the guardian is to be appointed “[a]s soon as practicable after the issue of proceedings …”111 and the legislation in question states that cafcass is to “make provision for the children to be represented …”112 A plain reading of the wording used in the legislation enshrining these duties appears to show that they are not intended to be “general” at all, but quite specific in that representation is expected, and the appointment is to be expedient (unless there are reasons not to be, that is where this is not practicable). The reasoning in this case constructs the role of cafcass as an aspirational rather than a real one. It also gives cafcass scope for effectively delaying appointment of guardians significantly, even to an extent where this means that in some cases children will not have been represented at all. This is particularly troublesome at a time of limited resources (which makes it more likely that this will happen), and is arguably a dilution of relatively strong practice in child protection cases in the jurisdiction; in effect making appointment 105 See note 5. 106 The duty to appoint arises under the Criminal Justice and Court Services Act 2000 (England and Wales). 107 R. (R. and Others (Minors)) v cafcass [2012] ewca Civ 853, at para. 55. 108 Children and Family Court Advisory and Support Service. See http://www.cafcass.gov.uk/. 109 Under the Criminal Justice and Court Services Act 2000 (England and Wales). 110 (R. and Others (Minors)) v cafcass [2012] ewca Civ 853, para. 73. 111 Family Proceedings Rules 2010, Rule 12.6. The Family Proceedings Rules 1991 were in force at the time in question in these cases, however as noted in the judgment the differences between the two sets of rules are minimal and therefore it is the current rules which are primarily referred to. R. (R. and Others (Minors)) v cafcass [2012] ewca Civ 853, para 17. 112 Criminal Justice and Court Services Act 2000 (England and Wales).

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contingent­on resources.113 If children’s involvement in proceedings is delayed, much of the substance of proceedings will have already occurred before children are facilitated to be heard. Some developments in England and Wales have demonstrated a positive approach to the matter of when children should be involved in proceedings. James Munby, President of the Family Division in England and Wales, advocates for increased involvement of children in family justice.114 In the Hague Convention case of D. (A Child) (International Recognition)115 it was suggested that each court should consider the matter of a child’s views anew, and that those expressed wishes should be kept under review as time goes by and a child grows older.116 The court held that whether a child is to be heard is both a welfare question and a fundamental principle (although as noted above whether this extends outside the context of Hague proceedings is highly questionable). This positive step for children’s rights notwithstanding, the court was emphasising the need for each court to hear the child – that is through appeals and so on – not that all children should be heard more than once in all types of cases. It was also emphasised in this and other cases that a role for children beyond speaking with a cafcass officer would be the exception.117 This is a very limited view of children’s involvement in proceedings, considering that the Committee on the Rights of the Child emphasises that children must be able to choose the manner of their involvement.118 It is therefore proving all too easy to interpret ‘hearing’ children as a one-off process in which to engage at any stage – perhaps a late stage – in proceedings. Without clarity that children are to have information, representation of some kind, and a clear invitation of involvement as the most important individual in proceedings, children’s wishes will inevitably be side-lined; and hearing children seen as optional. In the ideal Article 12(2) presented in Chapter 1,119 it is stated that: “All children must be recognised as individual rights-holders … at all stages of proceedings concerning their best interests.”120 Children should be involved in all phases of proceedings in whatever form, be it via party status, legal representation, a social report, providing views through a guardian 113 For further consideration of the matter of resources, see below at Section 2.4. 114 James Munby, “Unheard Voices: The Involvement of Children and Vulnerable People in the Family Justice System” Aug. Family Law 895 (2015). 115 [2016] ewca Civ 12. 116 Ibid, para. 35. 117 Ibid, para. 60. See also Ciccone v Ritchie (No 1) [2016] ewhc 608. 118 See note 2 above. 119 Section 8.2. 120 Emphasis added.

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ad litem or even just writing letters. There are numerous ways in which children can be involved. Children as individuals should be central to deciding which of these means are relied on; and central at all stages of proceedings, from beginning to end. 2.2

“Capable of Forming Views”: The Threshold for Hearing Children The kids aren’t getting heard at the courts and all of that. Yeah, it was quite ridiculous that nothing, like they [siblings] weren’t having any input. And they should, this is their lives, this is their – you know, their well being, like who are they. Like, some people might say “Oh, how could you put the kids up and stand them up like that and – tell them to choose?” but it’s not, it’s like telling, basically getting a view from them, and you know,– I think it’s really wrong that the court decides [without hearing their views].121

Highly relevant to whether children access their right to be heard is whether they are deemed ‘capable’. One question in this regard concerns the age or stage of development at which it should begin to be offered to a child as an option. The text of Article 12 refers to an obligation to hear children “capable of forming his or her views”, and the Committee states that the decision as to whether children are capable of forming views should be made on “a case-bycase basis.”122 It is left, then, to be determined at domestic level how the decision whether to hear children is made. Some states have explicitly set age limits above which children may be heard.123 Many have not. Because we know so little about measuring decisionmaking abilities,124 inevitably there is inconsistency, vagueness, and ultimately failure to hear children at domestic level on the basis of ‘capacity’ – p ­ articularly in respect of younger children. As pointed-out in Chapter 1, the language in Article 12 (that is that children “capable of forming his or her views” will be heard) is somewhat indefinite, confusing, and open to varying interpretations. 121 Girl quoted in Cashmore, note 1, at 517. She was unhappy that her younger siblings were not being heard in a contested matter about contact. 122 Committee on the Rights of the Child, General Comment No. 12, note 2, at para. 52. 123 Representing Children Worldwide, note 10. 124 See Chapter 3. The matter of how age and ‘maturity’ or ‘capacity’ influence how much weight is given to a child’s wishes is considered in Chapter 5. In the current section, capacity to form views in order to access the right to be heard in the first place – a separate issue – is being considered.

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Under the French Civil Code, the right of children to be heard in proceedings affecting them is dependent on children being “capable of discernment.”125 To be considered capable of such judgment, a child must “truly understand what he or she will do and what will happen” in the proceedings.126 This wording provides more guidance to courts than they often receive elsewhere, yet it is still left very vague and subjective. This is probably why children under 10 are generally unheard in France.127 In Italy, in adoption cases the court will consider the child’s opinion when twelve years old, or younger “if the child is capable of judgement.”128 Norway is very progressive, setting the age at which children will be heard at seven years, with a proviso that children under this age will be heard if appropriate. Yet judges everywhere seem most comfortable in following set age limits – children under the age of seven are rarely heard in Norway,129 although efforts are being made to improve the enjoyment of the right by under-sevens.130 The striking variation in global practice is evident in the fact that judges in Germany on average interview children from the age of 4.1 years.131 The Committee on the Rights of the Child is clear that age alone should not dictate whether children are heard,132 and many states have not set age limits. In the Scottish case of Shields v Shields133 (an appeal on the basis that a seven year old was not heard) the court stated that “practicability”, rather than age, is the basis on which the decision whether to hear a child should be made in family law proceedings.134 The court did not elaborate on this however. In which 125 Article 388–1 of the French Civil Code. See Representing Children Worldwide, How Children’s Voices are Heard in Protective Proceedings, France: Summary Analysis. Available at: http://www.law.yale.edu/rcw/rcw/jurisdictions/eurow/france/frontpage.htm (last accessed 24 October 2014). 126 Ibid. 127 See Briand, note 76. 128 Act of Law of 19 Oct. 2015 nr. 173. 129 See Skjørten, note 71. 130 Ministry of Children and Equality, at 13–15. In a very positive move, in 2015 in an immigration case the Supreme Court upheld an appeal on the basis that a six year old child was not heard, emphasising that there is no age limit to the right of a child to be heard. HR2015-2524-P (Supreme Court, 18 December 2015). The court referenced General Comment No. 12, note 2. 131 Karle and Gathmann, note 68, at 182. 132 Committee on the Rights of the Child, General Comment No. 12, note 2, para. 52. 133 [2002] sc 246. 134 Shields v Shields [2002] sc 246, para. 11. The court stated that “if, by one method or another, it is ‘practicable’ to give a child the opportunity of expressing his views, then, in our view, the only safe course is to employ that method.” See further Kay Tisdall and Fiona

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circumstances would it not be practicable to hear children? As noted above, it has been shown that the majority of children in family proceedings are not invited to be heard in Scotland, and therefore the lack of clarity around “practicability” seems particularly problematic. In theory children are to be invited by letter to give their views (via a special form) about family proceedings affecting them, but in one study it was found that only 17% were sent this invitation.135 Judges have discretion not to send the form if appropriate in light of the age and maturity of the child requires this, so it is likely that the young age of the child is prominent amongst the reasons leading judges to refrain from inviting children to contribute views. Research demonstrates that in most countries the rate at which children are heard varies significantly between judges.136 There is likewise a wide range of discretion for social workers concerning the extent to which they hear children when decisions are being made about their best interests.137 Duerr Berrick et al., found that even in Norway and England/Wales – countries with policy g­ uidance around hearing children – professionals differed greatly in the extent to which they heard children, and these states did not demonstrate higher ­levels of involvement of children in decision-making concerning care orders.138 Global case law demonstrates that the views of younger children are far less likely to feature in decision-making than those of older children. In England and Wales the case M. (Children)139 involved an appeal from a violent father who had been denied contact. The children, aged between three and seven years, had witnessed the violence of the father towards the mother and yet there is no mention of the wishes of the children.140 In the Irish case of

Morrison, “Children’s Participation in Court Proceedings when Parents Divorce or Separate: Legal Constructions and Lived Experiences” 14 Law and Childhood Studies: Current Legal Issues 156 (2012), at 160. 135 Mckay, note 79, at 3–4. The ‘F9’ form, aimed at facilitating children to write to the judge, is under review at the time of writing. See Together (Scottish Alliance for Children’s Rights), note 72. 136 Taylor et al., note 8, at 651. See also the Capita research in the Irish context. National ­Children’s Office, Review of the Guardian Ad Litem Service (National Children’s Office, 2004) and Carol Coulter, Second Interim Report: Child Care Law Reporting Project (2014). 137 Jill Duerr Berrick et al., “Children’s Involvement in Care Order Decision-Making: A CrossCountry Analysis” 49 Child Abuse and Neglect 128 (2015). 138 Ibid. 139 [2013] ewca Civ 1147. 140 The father was successful in his appeal, and the case was remitted for rehearing.

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N. v N. [Hearing a Child],141 the High Court held that a child of six should be given the opportunity to be heard on the basis that six year olds often have something to say, but in A.Bu. v J.Be.142 the Supreme Court held that it would be inappropriate to hear a child of five years on the basis that the “age and maturity” of a child of this age meant that they could not “form views”.143 It seems that it is judges’ impressions of children, rather than objective evidence, which is determining the age from which children will be heard. States are frequently minimising the ability of younger children to form views, and overlooking the fact that the Committee on the Rights of the Child emphasises a broad definition of how young children can form views, even stating that “non-verbal forms of communication including play, body language, facial expressions …”144 Courts assume instead that only older children should be heard. Yet it is unjustifiable to exclude ‘younger’ children, such as those under 10 or 12 years, as happens in some jurisdictions, from an opportunity to be heard, considering the evidence on children’s abilities considered in Chapter 3. Even when it comes to children under seven years, children should be understood to have a right to be heard, though there may be different ways in which this may be implemented. If four year olds are successfully heard in Germany, with indications that the majority of stakeholders feel this is positive,145 it is likely ­possible elsewhere. It is challenging to settle on how to involve infants, toddlers, and children with severe cognitive impairment, who may not be able to express views as traditionally understood. Yet in these cases, social reports can be carried-out at the very least. In the ideal Article 12(2) presented in ­Chapter 1,146 it is stated that: “All children must be recognised as individual rights-holders … non-verbal children should have social reports conducted on their situation.”147 Social reports can ensure that non-verbal forms of communication are taken into consideration, and that the child’s situation is presented to the judge as much from the child’s perspective as possible by a professional who should be as objective as possible. Age and communication difficulties are undoubtedly complicating factors when it comes to respecting children’s autonomy from the perspective of 141 [2008] iehc 382. 142 [2010] iesc 39. See also New Zealand case Gordon v Campbell [2015] NZHC 1264 in which an adopted seven year old child was not informed or independently represented where her birth mother sought contact with her. 143 Ibid, paras. 15–17. 144 Committee on the Rights of the Child, General Comment No. 12, note 2, at para. 21. 145 See Karle and Gathmann, note 68, at 172 and 179. 146 Section 8.2. 147 Ideal Article 12(2)(a).

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­ pholding their wishes. It should not be complicated, however, to uphold that u element of autonomy requiring that all children are treated as individuals and that their side of the story (to the extent possible) is presented, even where they cannot express clear wishes. Autonomy is not all about getting what one wants – it is about being treated with dignity as a human being; and an objective assessment of their position is what is required to treat non-verbal children with dignity in best interest proceedings. 2.3 The Right to be Heard “Freely”: Child-Friendly Proceedings Article 12 specifies that children should be heard “freely”, but this is not possible if they are in a process, or an environment, which is not designed to accommodate children. In the ideal Article 12(2) presented in Chapter 1,148 it is emphasised that “[p]roceedings and processes must be conducted in a child-friendly way.”149 There has been some attention in recent years to ‘child-friendly justice’ and how proceedings should be better suited to the specific needs of children. The Council of Europe Child-Friendly Justice Guidelines for example outline methods for achieving proceedings and settings which are child-sensitive.150 The Committee does not define this term,151 but does provide that the court environment must not be intimidating and that the physical environment of courtrooms should be considered with children in mind.152 In many jurisdictions efforts have indeed been made to reduce the formalities of proceedings, such as doing away with the wearing of wigs and gowns for proceedings concerning children.153 However these provisions appear to be very limited – typical court settings tend to feel formal and severe. Also, there is much more to child-friendly proceedings than the physical environment. 2.3.1 Training for Professionals A child-friendly environment requires adequately trained staff, as noted by the Committee.154 If staff are not familiar with children’s rights, if they have little experience interacting with children, it is less likely that the experience 148 Section 8.2. 149 Ideal crc Article 12(2)(c). 150 Council of Europe, Guidelines on Child-Friendly Justice, note 4, at 10. 151 For consideration of this area, see further unicef, A Practical Guide for Developing ChildFriendly Spaces (unicef, 2009). 152 Committee on the Rights of the Child, General Comment No. 12, note 2, at 34. 153 For example, judges and other legal representatives in family law proceedings are prohibited from wearing wigs or gowns in both the Circuit Family Court and the High Court in Ireland by Section 33 of the Judicial Separation and Family Law Reform Act 1989. See further Geoffrey Shannon, Child Law (Thomson Roundhall, 2005), at 235. 154 Committee on the Rights of the Child, General Comment No. 12, note 2, at 34.

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of ­involvement with proceedings will be a positive one for children. There are of course many judges, lawyers, social workers and others facilitating children’s access to justice to the highest degree: [T]he judge was very kind and explained again that I had nothing to be scared about, that she didn’t eat people.155 Yet unfortunately in a 2016 report children outline their perceptions of poor practice and disrespectful attitudes amongst professionals in courts across the eu:156 As I was testifying, or my mum, he kept on interrupting and said he couldn’t hear or I used a wrong form of a noun, things like that. And after that, I got lost in what I was saying.157 It highlights just how important training, and ensuring staff with sufficient respect for children, are to children’s involvement in proceedings. Specialised judiciary is necessary in order to achieve the most highlytrained and experienced decision-makers.158 Some states do well in this regard. In France, the judiciary in child protection cases are highly specialised and trained in child welfare and occupy the post of “Judge for Family Affairs.”159 This specialist judiciary provides support and advice even at an early stage of the involvement of social workers with families, as well as throughout the legal process, working to get the agreement of all parties.160 In Belgium, members of the Flemish Bar Association and its Youth Lawyer Commission have the opportunity to complete a two-year course on children’s rights on which they can study child psychology and methods of communicating with children. The course is compulsory in order to train as a “youth lawyer”.161 Tunisia has invested heavily in training child protection representatives in children’s rights in collaboration with Belgium and unicef and there are various projects to raise awareness of the crc.162 Yet generally there is a sense that there is much room for improvement even in states which provide relatively well for hearing children. In Sweden there is 155 Sixteen year old girl from Bulgaria, party in a ‘custody’ case, quoted in European Union Fundamental Rights Agency, Child-Friendly Justice: Perspectives and Experiences of Children Involved in Judicial Proceedings as Victims, Witnesses or Parties in Nine eu Member States (European Union Fundamental Rights Agency, 2017), at 38. 156 Ibid., at 27. 157 Ibid. Quote from 17 year old girl, victim and witness in a domestic violence case. 158 The establishment of a specialised system is a recommendation in the Council of Europe guidelines. Council of Europe, Guidelines on Child-Friendly Justice, note 4. 159 Andy Bilson and Sue White, “Representing Children’s Views and Best Interests in Court: An International Comparison” 14 Child Abuse Review 220 (2005), at 231–3. 160 Ibid. 161 In 2010, 400 graduated as youth lawyers. Cited in Ursula Kilkelly, Listening to Children about Justice: Report of the Council of Europe’s Consultation with Children on Child-Friendly Justice (Council of Europe, 2010), at 26. 162 Representing Children Worldwide, Tunisia, note 42.

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no compulsory training for judges overseeing child protection cases.163 Norway’s parliament did not support the prospect of a specialised family court system when it was tabled in 1998. In its 2010 concluding observations on Norway,164 the Committee noted a number of areas where training for children’s proceedings is lacking, highlighting the lack of a systematic approach. Likewise, interviewees in the research of Lundy et al. indicated that, despite much progress in training professionals in children’s rights, no judges and few lawyers have specialised training in this area.165 The Committee recommended that all professionals working with children in Norway receive children’s rights training, including at university level.166 In Scotland’s Children’s Hearings there is an assumption that children must attend the hearing,167 overseen by trained lay ‘panel members’. Efforts have clearly been made in recent years to make panel members aware of the findings of research concerning children’s experiences of hearings, which is muchneeded because children sometimes report feeling quite disempowered at their hearings.168 A Children’s Hearings System in Scotland: Children’s Hearings Handbook training resource in 2013169 documents the many obstacles which make it difficult for children to participate in hearings such as fears of the forum, power dynamics, and language barriers.170 Their practice and procedure 163 Pernilla Leviner, “The Right to a Fair Trial from a Child’s Perspective: Reflections from a Comparative Analysis of Two Child Protection Systems” Paper presented at Conference on Child-Friendly Justice (Stockholm, 16–8 May 2014), at 12–3 and Pernilla Leviner, “The Right to a Fair Trial from a Child’s Perspective: Reflections from a Comparative Analysis of Two Child Protection Systems” in Said Mahmoudi et al., eds, Child-Friendly Justice: A Quarter of a Century with the un Convention on the Rights of the Child (Martinus Nijhoff Publishers, 2015). 164 Committee on the Rights of the Child, Concluding Observations: Norway (29 January 2010) CRC/C/NOR/CO/4, paras. 17 and 36. 165 Lundy et al., note 39, at 62. 166 Committee on the Rights of the Child, Concluding Observations: Norway note 164, para. 18. See also Children’s Ombudsman [Norway], Status for Barns Rettigheter (Status of Children’s Rights) (Children’s Ombudsman [Norway], 2012). 167 Section 73 of the Children’s Hearings (Scotland) Act 2011. 168 See below Sections 2.3.2 and 2.3.3. Children often reach this conclusion on the basis of what panel members say, from their body language and tone. Children’s Hearings Team, All About Me Events: Summary and Feedback Report (Scottish Government, 2012), at 6. In one child’s opinion, “[t]hey didn’t look happy. They looked like they wanted the job over and done with.” 169 Scottish Government, The Children’s Hearings System in Scotland: Children’s Hearings Handbook: Training Resource Manual Volume 2 (Scottish Government, 2013). 170 The vital nature of communication, including through body language, for the participation of children is emphasised in the handbook: Communication encompasses

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manual171 also emphasises communication methods regarding their decision and other aspects of the hearing.172 crc Article 12 is highlighted173 and panel members are urged to ensure that children are not talked-over in hearings. It is also emphasised that children’s views should contribute to decision-making,174 but exactly how this is to happen is left unspecified. It is positive that crc Article 12 is emphasised in the training of panel members. Also emphasised are the power issues in hearings which, it is highlighted in the training, may prevent children from genuinely being involved. This constitutes far more consideration for children’s involvement than is seen in other jurisdictions. However children still report feeling intimidated by proceedings,175 and the lack of advice on how to weigh children’s views runs the risk of hearing children remaining a tokenistic exercise. One important question centres around the lack of explicit training for professionals in how to implement the oft-questioned best interest principle. As noted in Chapter 2, there is a distinct sense that the best interest principle can sometimes result in subjective, inconsistent judgments176 which lack foundation in research and outcome evidence.177 The Committee recommends that the spoken­word and its interpretation by the listener; the gestures, facial expressions, glances – all the other ways we have of expressing our views with our bodies rather than with the spoken word; and the written word via letters, reports and legal documents. All these aspects of communication feature in a children’s hearing and will play a part in how each person present comes to understand or fails to understand what is happening. Ibid., at 196. 171 Children’s Hearings Scotland, Practice and Procedure Manual (Children’s Hearings Scotland, 2013). 172 Ibid., at 101. 173 Ibid., at 17. 174 Scottish Government, note 169, at 202. 175 See below at 2.3.3. 176 See Chapter 2 Section 3.2 and see further for example Miguel Clemente, “Judicial Decision-Making in Family Law Proceedings” 43 The American Journal of Family Therapy 314 (2015); Marit Skivenes, “Judging the Child’s Best Interests: Rational Reasoning or Subjective Presumptions?” 53 Acta Sociologica 339 (2010); Koh Peters, note 8, at 23; Lawrence Moloney “The Elusive Pursuit of Solomon: Faltering Steps toward the Rights of the Child” 46 Family Court Review 39 (2008); Irene Théry, “The Interest of the Child and the Regulation of the Post-Divorce Family”, in Carol Smart and Selma Sevenhuijsen, eds, Child Custody and the Politics of Gender (Routledge, 1989), at 82; and Robert Mnookin, “Child Custody Adjudication: Judicial Functions in the Face of Indeterminacy” 39 Law and Contemporary Problems 226 (1975), at 260–1. 177 See for example Elisabeth Godbout, Claudine Parent, and Marie-Christine Saint-Jacques, “Positions Taken by Judges and Custody Experts on Issues Relating to the Best Interests of

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“the State party elaborates practicable directions for how to operationali[s]e the principle and train all those involved in the determination of best interests of a child or children.”178 Yet such initiatives appear seriously absent. In particular, elaboration of the means through which children’s views are to be weighed against other factors is unexplored.179 Norwegian interviewees in the study of Lundy et al. noted a distinct lack of guidance and support for those making decisions about children, and a transparency deficit concerning the weight to be attributed to factors like children’s views.180 Another question is whether there is an evidence-base for the best interest decisions which are being made on children’s behalf, particularly where children’s wishes are overridden. The outcomes of judgments should be researched, collated, and presented to decision-makers in order to learn from successes and failures; yet when examining international practice little if any evidence of such exercises emerges. There is also a question mark over the validity of the evidence of experts in such cases, and the accuracy of their assumptions and predications. In the us, custody evaluations are relied upon heavily in private disputes about arrangements for children. Commentators point to the fact that the reliability of custody evaluations is questionable.181 Whether these reports serve to improve children’s well-being is unknown.182 There is much reflection on systems and practices in child protection,183 but in private law cases, there is little such work. There are a handful of social science studies in which children were asked about their private law disputes once they became adults.184 Yet it is not always evident that this type of research is Children in Custody Disputes in Quebec” 29 International Journal of Law, Policy and The Family 272 (2015), at 276 and further Chapter 5. 178 Committee on the Rights of the Child, Concluding Observations: Norway (29 January 2010) CRC/C/NOR/CO/4, para. 23. 179 See in particular Chapter 5 for consideration of global practice on this point. 180 Lundy et al., note 39, at 62. 181 Robert Emery, Randy Otto and William O’Donohue, “A Critical Assessment of Child Custody Evaluations: Limited Science and a Flawed System” 6 Psychological Science in the Public Interest 1 (2005). 182 Victoria Weisz, Sarah Beal and Twila Wingrove, “The Legal Experiences of Children, Families, and Professionals Who Work with Them” in Monica Miller and Brian Bornstein, eds, Stress, Trauma, and Wellbeing in the Legal System (Oxford University Press, 2010), at 64. 183 See for example the Munro review. Eileen Munro, The Munro Review of Child Protection: Final Report: A Child-Centred System (Department for Education, 2011). 184 There are also studies which sought the views of children. See for example Gillian Douglas and Mervyn Murch, Research into the Operation of Rule 9.5 of the Family Proceedings Rules 1991: Final Report to the Department for Constitutional Affairs (Department for Constitutional Affairs, 2006). In the occasional judgment in New Zealand there is citation of academic theory, for example in C. v S. and Anor HC NAP CIV-2005-441-776, para. 31.

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specifically targeted at educating decision-makers. Requiring decision-makers and other professionals to have evidence-based understandings of children’s issues – including children’s views of outcomes – should be a firm requirement of practice. 2.3.2 Children’s Right to Information Another area in which there is great uncertainty, which has consequences for how child-friendly proceedings are for children, relates to the extent to which children have access to information about proceedings concerning them. The Committee states that children should receive child-friendly information about proceedings in which they are involved.185 In the ‘ideal’ Article 12(2) presented in Chapter 1,186 this crucial point is also included.187 Knowledge is power, and without sufficient information on their case, children lack any genuine opportunity to be involved, for a number of reasons. Having one’s interests determined by courts or other forums can be a frightening experience for children, particularly where they are not kept wellinformed of how such systems work. In some states it seems that children have a relative amount of access to general information. For example the cafcass website has information for children in England and Wales on the role of cafcass generally,188 and for a number of proceedings in which they may be involved.189 The site has separate sections for adolescents and younger children and is designed to be attractive as well as appropriate for various levels of literacy, employing mediums such as videos and cartoons.190 Yet as positive as such initiatives are, written information is no replacement for children having someone to personally explain the legal process to them when they are involved in proceedings.191 Children, particularly when they are not literate, can have difficulty getting the information that they need through leaflets and

185 Committee on the Rights of the Child, General Comment No. 12, note 2, para. 34. 186 Section 8.2. 187 Ideal crc Article 12(2)(c). 188 cafcass (Children and Family Court Advisory and Support Service) Website, Information for Children. Available at: http://www.cafcass.gov.uk/children.aspx (last accessed 31 Oct. 2014). 189 cafcass (Children and Family Court Advisory and Support Service) Website, People are Trying to Make Sure I’m Safe. Available at: http://www.cafcass.gov.uk/teenagers/people -are-trying-to-make-sure-im-safe.aspx (last accessed 31 Oct. 2014). 190 cafcass note 188. See in particular the tools Cafcass uses to help children share their feelings with the court. See cafcass website at https://www.cafcass.gov.uk/leaflets -resources/our-work-with-children.aspx (last accessed 20 June 2017). 191 Douglas and Murch, note 184, para. 7.11.

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other types of documents and literature, and need the support of someone knowledgeable who can explain the process to them and lend a sympathetic ear.192 Children often have rights of which they are not aware to be involved in, or to initiate, proceedings.193 Helpfully in France authorities provide financial support for innovative methods of information dissemination on legal matters, for example 24 hour services at the law courts and bar associations, as well as the provision of legal services in high schools, the “permanent reception, infor­ mation and guidance offices”,194 – Permanences d’Acceuil, d’Information, et d’Orientation – a government guidance service for young people.195 Facilitating children to access information in as many forums as possible, particularly those outside of the legal context, will be vital to ensuring they have sufficient knowledge of legal processes. The other significant information issue concerns the access of the individual child to information on her own case. Whilst general information will undoubtedly be helpful for children, it is information on their particular case and the means through which they may participate which will be of primary interest to them. Significant emphasis is placed in the literature and by courts on withholding information from children in order to ‘protect’ them which might well be necessary in certain instances, but should not be the presumption. This withholding of information is part of the extensive backdrop of the marginalisation generally of children from their own proceedings, something which children themselves reported in one study as a significant problem.196 As one boy in an Australian research study on children’s experience of divorce said, if he is not attending proceedings, he would like to be receiving information about what is occurring at them: It would be good if maybe, I just felt most of the time that I wanted to, like if there were recordings of the court hearings and stuff … that I could

192 See below at Section 2.3.3. 193 See for example consideration of the facility for children to seek to initiate proceedings concerning child arrangement orders under the Children Act 1989, below at Section 3.3.1. 194 Bilson and White, note 159, at 232. 195 See European Centre for the Development of Vocational Training Website, Training ­Guidance Staff in France. Available at: http://www.cedefop.europa.eu/EN/Files/Training __Guidance_Staff_in_France.pdf (last accessed 20 Oct. 2010). 196 Inger Marie Bakke, “Children’s Participation when Taken into Care [Barns Deltakelse i Omsorgsovertakelser]” 91 Tidsskriftet Norges Barnevern 4 (2014).

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actually listen to them, [because] I was being told various things by both parents, and I am like what the? … It’s really difficult and confusing.197 Yet even where children have representation in proceedings in Australia, they often are not well-informed about what is going on, which is particularly unfortunate considering it is part of the role of the child’s legal representative in Australia to ensure that the child is sufficiently informed.198 The Committee urges that states not only ensure that children are heard, but that children are positively encouraged to provide views.199 How are children to form sensible, wise, well-thought out views, or really, to contribute in any meaningful way, if they do not have sufficient information? The distinct lack of case law involving children asserting their rights to information in best interest decisions is quite noticeable. There have been some cases whereby children have sought to prevent estranged parents receiving information.200 But few cases have been taken where children have sought to assert their own right to information. It is likely because children do not realise that they may have such rights at domestic law (and that they certainly do under the crc).201 As with many aspects of proceedings, there is a wide variance in the approaches to the extent to which children should receive information. In many instances, particularly in family law, children receive little information on their case.202 In others, particularly in child protection, there are efforts to engage children – ironic, considering that of the two types of proceedings, child 197 Anne Graham and Robyn Fitzgerald, “Taking Account of the ‘To and Fro’ of Children’s Experiences in Family Law” 31 Children Australia 30 (2006), at 39. 198 See for example Michelle Fernando, “Family Law Proceedings and the Child’s Right to be Heard in Australia, the United Kingdom, New Zealand, and Canada” 51 Family Court Review 46 (2014), at 48–9 and Amanda Hart, “The Silent Minority: The Voice of the Child in Family Law” 28 Children Australia 31 (2003), at 35. 199 Committee on the Rights of the Child, General Comment No. 12, note 2, para. 11. 200 See for example P. v A Local Authority [2016] ewhc 2779; in Ireland McK. v Information Commissioner [2006] iesc 2; [2002] iehc 85 and in Sweden Kammarrätten 1382–2012 and Dnr 571–1997 jo 1998/99 s. 464. 201 The right to information is enshrined in crc Article 13. 202 See for example G. (A Child – Intractable Contact) [2013] ewhc B16, a family law case in which the cafcass officer had prepared an initial (“Section 7”) report on the 13 year old girl’s situation without even speaking with her, at the behest of the protective mother, who did not wish to have the father’s controlling behaviour discussed with the girl. See for example para. 38 (the judge states “that order went on to direct that ‘For the purpose of preparing this report Cafcass Coventry is specifically asked NOT to speak direct to the child.’ The reason for that restriction is not entirely clear”) and para. 58 which outlines the mother’s wish to keep information from the child.

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protection­cases will involve information likely more upsetting. In England and Wales Douglas et al. highlight widespread confusion amongst children about their own cases, what the dispute about their interests involved, and what courts were like: I knew it was about me and who wanted me and who I would go to live with and what would happen to me, but I was never sure what exactly it was.203 Children were found to sometimes believe that courts were frightening places in which their parents might be punished.204 Children receive information about their case in advance of Scottish Children’s Hearings, and much research has been conducted on children’s experiences and perceptions of this.205 Informing children in this context is highly important, because it is expected that they will attend the hearings. Children report that they need to have the hearing process explained to them before their hearing so they know what to expect.206 But instead, children overwhelmingly report feeling swamped by forms and other literature about proceedings.207 As one ten year old boy said: [t]here is lots of paper … I hate it.208 Approximately one quarter of children also expressed that they did not understand the information sent to them in advance of the hearing,209 demonstrating the inadequacy of a system which expects all children to be properly informed through paperwork. This lack of understanding will obviously have a significant effect on children’s ability to participate in hearings. Levels of understanding of the process generally tend to be higher amongst children who successfully read and understand information sent to them in advance of the hearing.210 Children can have much anxiety about upcoming proceedings, partly due to a lack of information about how they work and who will be present.211 Another crucial issue is ensuring that children are properly informed about the outcomes of proceedings, particularly where the outcome is against their 203 Douglas et al., note 6, at 50. 204 Ibid, at 8 and 82. 205 See for example Children’s Hearings Team, note 168; Children’s Hearings Reform Team, The Views of Children (Children’s Parliament/ Children’s Hearings Reform Team, 2010); and Children’s Hearings Scotland, Children and Young People’s Views and Experiences of Children’s Hearings: A Summary (Children’s Hearings Scotland, 2013). 206 Children’s Hearings Scotland, ibid, at 8–9. 207 See for example Children’s Hearings Reform Team, note 205, at 4. 208 Ibid. 209 Scottish Children’s Reporter Administration, The Children’s Hearings System: Understood and Making a Difference (Scottish Children’s Reporter Administration, 2011), at 77. 210 Children’s Hearings Scotland, note 205, at 8–9. 211 Who Cares? Scotland, Hearing Scotland’s Children: The Expert Views of Scotland’s Children and Young People (Scottish Children’s Reporter Administration, 2011), at 18.

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wishes. Surprisingly, children commonly leave Scottish Children’s Hearings without fully understanding the nature of the decision made.212 Although information about decisions is given to children in hearings, they often require further explanation afterwards to be able to understand what had occurred,­particularly in order to understand terminology such as “supervision requirements”.213 There have been calls for the lay members overseeing hearings, and children’s social workers, to be more clear and specific about decisions made, explaining them both in written form and in person.214 In Israel, when issuing a judgment (or soon afterwards), the judge will inform the child directly or through a specialised ‘participation social worker’ the reasoning for the decision made.215 Care must be taken in explaining outcomes of course – language will have to be specially tailored for children, for example. An excellent example of such a judgment is to be seen in the England and Wales 2016 case of Lancashire County Council v M. and Others,216 in which the judge wrote a judgment and explained to children why contact with their extremist father would be limited, exclusively in child-friendly language – a historic move. The judge was in particular, praised for using emojis in the judgment!217 Information is an essential part of involvement in any type of proceeding. Children require information early on to let them know both about proceedings generally, and their own case. Clearly, literature is not sufficient preparation for children for proceedings concerning them – the child is the most ­important person involved and deserves the necessary time, effort, and ­resources to support them. It is crucial that professionals are trained in communication with children, although as Lancashire County Council v M. and O ­ thers demonstrates, there is much scope for individual judges to take the initiative to ensure child-friendly efforts when best interest decisions are made on c­ hildren’s behalf.

212 Chris Creegan et al., Big Words and Big Tables: Research into Children and Young People’s Views on Advocacy in the Children’s Hearings System (Scottish Executive Social Research, 2006), at 32. 213 Ibid. 214 Scottish Children’s Reporter Administration, note 209, at 26. 215 Morag, Rivkin and Sorek, note 92, at 9–10. 216 [2016] ewfc 9. 217 See also Re A. (A Child) [2014] ewhc 920 in which the judge indicated that he would be visiting the girl in hospital to explain his decision (para. 45), and in Re. B. (A Child by her Guardian) [2017] ewhc 488 there was a “suggestion that the court should write a letter to B explaining what the court had decided and why.” Para. 48.

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Support for Children in Proceedings I knew that her job was to help me out, so if I told her it would help me out. She really listened to me …218

It is exceptionally important that children receive not just written information, but one to one human support when decisions about their best interests are made in proceedings. In the ‘ideal’ Article 12(2) presented in Chapter 1,219 it is emphasised that “[c]hildren must have information and support from experts in child development”.220 Yet global practice indicates that children may or may not have a professional supporting them during some or all of the process. In the research of Douglas et al., many children involved in family law proceedings emphasised that they needed someone independent to support them through the litigation process; someone trustworthy and empathetic who could provide information and advice. Some children felt that this role had been performed by a children’s guardian; others their legal representative. Other children did not appear to have found anyone to support them in this way and were left feeling sad and resentful of the legal system.221 In Scotland’s Children’s Hearings there is an assumption that children must attend the hearing, as noted above.222 As this means that children enter very adult-oriented environments, with enormous power dynamics, one would expect that they should have an adult firmly on their side. Yet children report a distinct lack of support in advance of their hearings. Only 30% of children and parents reported having spoken in advance of their hearing (about that hearing) to their social worker223 and only 56% of children (defined in this report as under-12s) interviewed reported understanding why they were at a children’s hearing (although almost all teenagers understood).224 This lack of information and explanation can lead to deep misunderstandings and even

218 Child quoted in Lisbeth Pike and Paul Murphy, “Invisible Parties: Listening to Children: A Social Science Perspective” Paper presented at Australian Family Law Conference (Perth, 24 Oct. 2006), at 10. 219 Section 8.2. 220 Ideal crc Article 12(2)(c). 221 Douglas et al., note 6, at 7–8. 222 See Section 73 of the Children’s Hearings (Scotland) Act 2011. 223 Scottish Children’s Reporter Administration, National Survey of Children and Families in the Children’s Hearings System 2012/13 (Scottish Children’s Reporter Administration, 2013), at 21. 224 Ibid, at 14.

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fearfulness for children regarding what the hearing is about.225 In one study, a 14 year old girl remarked that [m]y first time at a hearing I thought they were the Police and if I said anything I would get arrested.226 This misunderstanding is all the more tragic considering how unnecessary it is – children who feel prepared and informed appear to have much less anxiety: I felt that it was alright, ’cos my social worker telled me what would be happening, who would be there.227 Although there is a possibility for children in Scotland’s Children’s Hearings to have independent advocates – an individual to provide support or to advocate for their wishes – children rarely have such advocates in practice.228 Griffiths and Kandel pose the question that, even though children are encouraged to speak at hearings, “… in reality, are they empowered to do so?”229 considering the fact that children report feeling shy and intimidated at hearings. There are efforts being made to assist panel members (who oversee proceedings) to understand the power dynamics at play, and to consider how difficult it may be for a child to speak in a room full of adults.230 Yet the reports of children make it clear that these efforts are insufficient for ensuring that children’s hearings are a forum in which children themselves really feel like the most important person in the room. Research in 2011 found that the average score young people would give to their hearing experience was four out of 10,231 that they feel unprepared,232 and that they feel overwhelmed in a room full of adults.233 This points to the need for change on many levels – training of adults involved, better preparation in advance by social workers, but it also indicates that children likely need an advocate at hearings. Although there is some resistance to this on the basis that it may alter the relatively informal nature of children’s hearings compared to legal proceedings,­ 225 Children’s Hearings Scotland, note 205, at 8. 226 Who Cares? Scotland, note 211, at 18. 227 Children’s Parliament, Children’s Parliament: Children’s Experiences of the Scottish Hearing System (video recording, 2012). Available at: http://www.youtube.com/watch?v=LZPJs1D9 6UM&list=PLFl3iTfqvpeAS_lxRyWoizlzRdIUe5sXZ&index=1, (last accessed 9 June 2014). 228 Creegan et al., note 212, at 16. 229 See Griffiths and Kandel, note 88, at 287. 230 See Section 2.3.1 above. 231 Children’s Hearings Reform Team, note 205, at 4. 232 Two thirds of the children interviewed had not felt involved by their social worker in the preparation of reports for hearings. Scottish Children’s Reporter Administration, note 209, at 10. Children sometimes report feeling physically sick due to the nerves they experience before and during the hearing. See for example Children’s Hearings Scotland, note 205, at 13 and Children’s Parliament, note 279. 233 See Griffiths and Kandel, note 88, at 289.

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the experiences reported by children strongly point to the need for an advocate to support them. Most children (two thirds) do report, however that Children’s Hearings have made a positive difference in their lives generally,234 particularly due to improvements in the relationships with their families.235 One 12 year old, when asked if things were better after engaging in the hearings system, said: Getting the extra support an’ that, it’s helped me a lot.236 The type of relationship which develops with a professional encountered by children in relation to proceedings concerning them will, of course, be hugely important. Children report many good237 but also some bad experiences of the professionals with whom they work in proceedings concerning them. Children appreciated where they were treated as equals, as this girl describes of her guardian ad litem: She kind of sat really close to us and talked to us as if we were equal and on the same wavelength, and she just talked as though like she understood us and that she could see where we were coming from and she actually wanted to listen to what we were saying.238 They are particularly unhappy when they feel unheard, pressured or manipulated. The same girl gives her impressions of a second guardian ad litem: I don’t think she really understood what we were telling her … she put a lot of words into Lee’s mouth ’cos he was only young, he just kind of went along with it.239 Children want and need someone who is on their side, someone who can explain the process to them, to advocate for their viewpoint, to support them to attend hearings, and to ensure that the child understands what is happening. This does not need to be the same person at all stages of a particular case (although this would obviously be far preferable240). However without this level of support, the average child simply cannot be involved in proceedings in a way which respects the status they deserve. It limits their options for involvement hugely. As the person upon whose interests the decision is supposed to turn, anything less is not acceptable.

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Scottish Children’s Reporter Administration, note 209, at 5. Ibid. Ibid., at 23. See for example Margaret Bell, “Promoting Children’s Rights Through the Use of Relationship” 7 Child and Family Social Work 1 (2002), at 1. 238 Sixteen year old girl, quoted in Douglas et al., note 6, at 88. 239 Ibid. 240 See further Chapter 7.

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2.4 The Allocation of Resources for Hearing Children in Proceedings It is very obvious that adequately supporting children to be involved in proceedings affecting them will require well-resourced systems. These systems will require funding for, depending on the system, child experts such as guardians ad litem and/or psychologists to prepare reports, specially trained legal representatives and judges well-accustomed to speaking with children, with adequate time to do so. A number of states provide legal aid for the purpose of representing children in proceedings.241 In some states, a lack of resources means that though children can be legally represented in theory, in practice it does not happen.242 In South Africa, children are to be appointed legal representation in private law cases, with the qualification that this should happen only “if substantial injustice would otherwise result”.243 Most states exclude children from legal aid, yet children are probably the least likely of any demographic to have money for legal services, and therefore it is obvious that they should be assisted in this regard. In many states cuts to legal aid budgets in light of the global recession and attendant ‘austerity’ policies has taken a grave toll on children’s access to support. Arguments have been made that far from being based in necessity, these cuts have been ideological in nature.244 In England and Wales, in 2013 the possibility­of legal aid was removed for most private law family ­cases245 241 In France, for example, children in protection proceedings may be heard by the decisionmaker directly, or with the assistance of either a legal representative or a person they choose themselves. Expenses incurred are provided for by the government-run legal aid agency. Representing Children Worldwide, How Children’s Voices are Heard in Protective Proceedings, France: Summary Analysis, note 125. 242 In Ghana, for example, Representing Children Worldwide researchers reported in 2004 that children are to be heard in emergency child protection cases through a legal representative, however it is specified in the legislation that the child is to pay for this, which does not seem reasonable to say the least. Representing Children Worldwide, note 10. 243 Section 28(1)(h) of the South African Constitution. The definition has not, however, been fully addressed either in case law or legislation, and provision is subject to resources. See Linda Stewart, “Resource Constraints and a Child’s Right to Legal Representation in Civil Matters at State Expense in South Africa” 19 International Journal of Children’s Rights 295 19 (2011), at 296. 244 See for example Felicity Kaganas, “Justifying the laspo Act: Authenticity, Necessity, Suitability, Responsibility and Autonomy” Journal of Social Welfare and Family Law (forthcoming, 2017) and Bill Atkin, “The Revised Family Court System in New Zealand: Secret Justice and Privatisation” in Mavis Maclean et al., eds, Delivering Justice in the 21st Century (Hart, 2015), at 39. 245 See for example Kaganas, ibid. See concerns about the failure to provide adequately for legal aid even in cases with an international element: Catherine Baksi, “‘Chronic ­Problem’

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and children are facing problems in many areas.246 In an extraordinary move in 2016 the Legal Aid Agency (laa) tried to take an award (approximately £5,000) from a 17 year old – paid to him because of a privacy breach by ­authorities – in order to pay for legal aid provided in wardship proceedings.247 In R. (j.g.) v Legal Services Commission248 the Legal Aid Agency for England and Wales249 refused to pay the full cost of a social report in a private family law case, agreeing only to pay one third of the cost, although a lower court had determined that the parents could not afford the cost of the report.250 The High Court held that the Agency had not acted unlawfully in refusing to pay the full cost of the report, and that the full cost should only be covered in full in “rare cases”. Empirical research highlights the views of professionals in 2016 that less time can be allocated by guardians to hearing children due to slashed budgets.251 Similar cuts are reported to be affecting whether children will be heard in private law cases in Ireland,252 Scotland253 and with Legal Aid in Abduction Cases” The Law Society Gazette (10 Jan. 2014). Available at: https://www.lawgazette.co.uk/practice/chronic-problem-with-legal-aid-in-abduction -cases/5039354.article (last accessed 3 Dec. 2016). 246 See Kayleigh Richardson, “How Legal Aid Cuts are Putting Extra Strain on Family Courts” The Conversation (23 Dec. 2016). Available at https://theconversation.com (last accessed 23. Dec 2016). 247 P. v A Local Authority [2016] ewhc 2779. The wardship proceedings had been taken to prevent the local authority from sending information about him to his estranged parents, and the award was made because a professional had gone on to do this anyway, leading to a suicide attempt by the child. The court found against the Legal Aid Agency. 248 In R. (j.g.) v Legal Services Commission [2013] ewhc 804. 249 Then known as the Legal Services Commission (lsc). 250 The lsc was relying on Section 22 (4) of the Access to Justice Act 1999 which precludes the award of costs against one party to proceedings solely on the basis that they benefit from legal aid: Except as expressly provided by regulations, any rights conferred by or by virtue of this Part on an individual for whom services are funded by the Commission as part of the Community Legal Service or Criminal Defence Service in relation to any proceedings shall not affect— (a) the rights or liabilities of other parties to the proceedings, or (b) the principles on which the discretion of any court or tribunal is normally exercised. 251 David Lane, Child-Centred Decision-Making in Public Law Proceedings in England and Wales: Perspectives of the Judiciary (PhD Thesis, forthcoming 2017). Professionals report in Lane’s study, for example, that the time the children’s guardian spends with children has dwindled. 252 Grace Corrigan, To Be Seen and Heard (Unpublished Thesis for Postgraduate Diploma, Trinity College Dublin, May 2016). 253 Civil Legal Aid (Scotland) Amendment Regulations 2010. See Mckay, note 79, at 4.

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New Zealand.254 In such a contentious legal aid environment, it is difficult to see how children can enjoy a ‘right’ to be heard. A major issue when it comes to availability of resources concerns the public versus private divide. Hearing children in child protection proceedings is often treated very differently to family law proceedings. Separation of the two types of proceedings for the purpose of the right to be heard – and weaker provision for family law – is to be seen throughout various jurisdictions.255 In England and Wales, although children have party status and children’s guardian representation in essentially all child protection cases, this occurs in a small percentage of private law cases.256 In Ireland, although children have guardians in approximately 40% of public law cases, in private law such appointments are practically non-existent.257 During my court observations in Ireland, the absence in court of the voices of the children concerned was a striking feature of the family law proceedings. Simply put, there was no independent representation of children, nor consultation with them in any form, in any of the cases observed.258 Although it is possible to appoint guardians ad litem in private law cases, parents must pay for the service. Some judges lamented the lack of children’s voices, others appeared not to notice. One judge who hugely values children’s views appointed a guardian ad litem in a very complicated custody dispute, and had to take money from court ‘poor boxes’ – the fund amassed from court fines which is given to charity.259 254 Bill Atkin, “Controversial Changes to the Family Justice System in New Zealand: Is the Private Law/ Public Law Division Still Useful?” 29 International Journal of Law, Policy and the Family 183 (2015). 255 Bilson and White, note 159, at 222. 256 In 2015/16, in 1,600 out of 37,649 private law cases children had this status. cafcass, Annual Report and Accounts 2015/16 (cafcass, 2016), at 1, 17 and 19. In other cases social (“Section 7”) reports were conducted, but the number of such reports conducted is not made clear in the report. 257 See further National Children’s Office, note 136 and Aoife Daly, “Limited Guidance: The Provision of Guardian ad litem Services in Irish Family Law” 13 Irish Journal of Family Law 1 (2010). In Canada, parents are similarly expected to pay. Section 211(5) of the Family Law Act 2011. See also in the Scottish context Mckay, note 79, at 3. 258 Daly, note 102, at 338–9. Judges sometimes speak with children in chambers, though there is reluctance to engage in this. See Aisling Parkes et al., “The Right of the Child to be Heard? Professional Experiences of Child Care Proceedings in the Irish District Court” 27 Child and Family Law Quarterly 423 (2015). 259 The same judge lamented in another case: “This is a dilemma for the court because it cannot access the wishes of children directly … I must proceed with the disability that I don’t have this third view presented.” Court outside Dublin, 16 Dec. 2008. See Daly, ibid, at 332.

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In Sweden and Germany the public versus private divide is also evident. In Sweden children are party to all public law proceedings (although they will not instruct their legal representative until age 18). However in family law cases, they never have party status.260 In Germany a children’s guardian (referred to as a ‘counsel of the child’);261 represents children’s interests,262 but only “in proceedings that concern it where this is necessary in order to safeguard its interests.”263 There must be special circumstances for appointment in private law cases,264 and therefore in practice there are lower levels of appointment in family law cases.265 Though private law cases may not involve the safety issues of child protection proceedings, enormous questions in children’s lives are determined in such proceedings, including where they will live and with whom they will have relationships. There is a large body of literature on the potential harm to children of excluding them from information and involvement in proceedings affecting them.266 It is the responsibility of states – not parents – that children 260 Except in paternity cases – see Eva Ryrstedt and Titti Mattsson, “Children’s Rights to Representation: A Comparison between Sweden and England” 22 International Journal of Law, Policy and the Family 135 (2007), at 139. 261 European Parliament: Directorate General for Internal Policies, Member States’ Policies for Children with Disabilities (European Parliament, 2013), at 79. 262 These representatives can be lawyers, child experts or even laypersons. See Jörg Fegert and Manuela Stötzel, “The Representation of the Legal Interests of Children and Adolescents in Germany: A Study of the Children’s Guardian from a Child’s Perspective” 20 International Journal of Law, Policy and the Family 201 (2006), at 202. 263 In “Section 50 fgg: Representative for the Child in the Proceedings” it is stated that: 1. The Court may appoint a representative for a minor child in proceedings that concern it where this is necessary in order to safeguard its interests; 2. Appointment is normally necessary when the (a) interest of the child conflicts significantly with that of its legal representative; (b) proceedings relate to measures resulting from a threat to the child’s welfare, involving the separation of the child from its family or the withdrawal of all personal custody (ss 1666, 1666a of the Civil Code); or (c) proceedings relate to removal from the foster parents (s 1632 para 4 of the Civil Code) or from the spouse, the life partner or person having access rights (s 1682 of the Civil Code). 264 This provision is subject to the proviso that there is an element of child protection to the case or that there are conflicts of interest between child and parent. 265 See Fegert and Stötzel, note 262, at 202. 266 See Chapter 1 and also Carol Smart, Bren Neale and Amanda Wade, The Changing Experience of Childhood: Families and Divorce (Polity Press, 2001); Marsha Kline Pruett and Kyle Pruett, “‘Only God Decides’: Young Children’s Perceptions of Divorce and the Legal System” 38 Journal of the American Academy of Child and Adolescent Psychiatry 1544 (1999).

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should enjoy their right to be heard, and parents should not be expected to pay for this for many reasons, not least because it can entrench perceptions that children’s views are a tool to further the position of one parent.267 There are also enormous equality of arms issues, frequently disadvantaging the resident parent (usually the mother).268 This is beyond the scope of this book. What governs whether children participate should not be the type of proceeding involved, whether there are conflicts of interest, or whether there are resources (apparently) available – it should be dictated by whether the individual child wishes to be involved or not. This is what Article 12 stipulates. In any case, it is not only private law in which resources are being withheld. In Ireland, as noted above, research has found that children have guardians in less than half of public law cases. One case which I observed in Ireland involved an application for an interim care order for an eleven month old baby. The baby’s mother was not in court as she was facing criminal charges in another court. The judge asked the social worker whether there was a need for appointment of a guardian ad litem. The social worker replied that she did not think that there was, and a guardian ad litem was not appointed. The judge stated that even though he felt that guardians should be appointed in every case “I know that that will cause grief and stress to those in the [authority responsible], because of funding issues”269 Even the most sympathetic judge then may be reluctant to hear children because of resource considerations for authorities. This is a matter of concern. While it is understandable that judges will be mindful of funding issues, it is the function of judges to apply the law, not to serve as a gatekeeper for public resources. Although there are of course constraints to public resources, this cannot ­absolve States of responsibility for realising due process rights, which have 267 Mckay, note 79, at 3. In Canadian case Comeau v Comeau, 2013 ONSC 6762 the judge refused to look at letter from the child (age 10) because it was submitted by the father, and the child’s voice was left unheard. 268 See for example Mckay, ibid, at 3. See also the legal aid issues noted in e.g. v j.g. [2013] ew Misc 21, paras 38–39, in which the father was unemployed and paying a token amount of child support to the mother of five children. She was working and paying the legal fees in the contact dispute herself, yet the father had secured money from his parents and community. See also Re G. [2012] ewca Civ 1233 and generally Siobhan Fenton and Dina Rickman, “Ultra-Orthodox Jews Launch Million-Pound Fundraising Bid to Stop Children Living with ‘Irreligious Parents’” Independent Online (16 Aug. 2016) Available at http:// www.independent.co.uk/news/uk/home-news/ultra-orthodox-jews-launch-million -pound-fundraising-campaign-to-fight-converts-child-custody-cases-a7190281.html (last accessed 26 Jun. 2017). 269 Dublin District Court, 2009. See Daly, note 102, at 323.

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manifested in the notion of a ‘right to be heard’. However this is to happen – through a social report, a guardian ad litem, a legal representative, a judicial meeting, or another way (the ‘ideal’ Article 12(2) presented in Chapter 1270 provides some suggestions) – it must be done where children want it. If the present system is to prove too expensive (once an adequate analysis or investigation of some sort has been conducted) then a rethink of the way family proceedings are run will be necessary.271 But it is simply not acceptable to fail, ostensibly for resource reasons, to involve children in proceedings in which it is their best interests determine the outcome. In any case, resource provision is not the only means through which to ­secure positive implementation of the right of children to be involved in proceedings concerning them. One of the findings of a report on legal representation in child protection proceedings in the us was that, although good practice existed all over the us concerning various elements of representing children in protection cases, these instances were not being highlighted and adopted elsewhere.272 It is perhaps as important to have a well-organised system – one which identifies what works elsewhere, and one which regularly evaluates ­outcomes – as it is to have significant resources. There are some innovative practices in place around the world, such as the Israel model, from which we can learn.273 If children’s involvement in proceedings concerning them is framed more as a due process right, rather than some discretionary option on which it is not worthwhile to expend resources, then it is more likely that the structures necessary for hearing children would be put in place. This is why it is important to emphasise that we are obliged to uphold children’s autonomy to the extent possible in proceedings affecting them. It is only through ensuring that children are understood to be rights-holders, with equal due process rights, that this can be achieved. 270 Section 8.2. 271 See further consideration of this in Chapter 7, Section 5. 272 First Star, A Child’s Right to Counsel – First Star’s National Report Card on Legal Representation for Children (First Star, 2007), at 2. The authors emphasise that: “This is not only a question of money. While improved resources are clearly of benefit, it is remarkable that economically disadvantaged states in several cases manage to do a much better job for their challenged children than others which are more affluent.” 273 In Canada also a new type of report has been introduced to reduce delay and costs, although there are concerns about how well children are heard through this facility. Rachel Birnbaum, Nicholas Bala, and John-Paul Boyd, “The Canadian Experience with Views of the Child Reports: A Valuable Addition to the Toolbox?” 30 International Journal of Law, Policy and the Family 158 (2016), at 174. See further below Section 3.1.1.

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Do Children Enjoy the Right to be Heard the Way they Wish? Representation, Judicial Interviews and Due Process

As considered above, there are many different ways in which children can be heard in best interest proceedings. Children are supposed to have choices as to how they are heard. Yet frequently children are fortunate if they are heard at all, at a single point in proceedings. In this section, the primary issues of controversy are considered. Is it children’s wishes, or simply their perceived ‘best interests’ which are advocated by social reports, or representatives in proceedings? Do children have access to legal representatives? Another key issue which has received much attention of late is whether children should be facilitated to meet judges directly. To a lesser extent, there has been some attention to whether children should be able to attend their own proceedings. It is established in this section however that the main issue generally considered by courts is not how to facilitate children to be heard in the way that is right for them as individuals, but whether children should be heard at all, or even whether there is any facility available for this. 3.1 Representation of Wishes or Interests? When it comes to representation of children in proceedings affecting them, an important question is – what exactly is being represented? Is it ever sufficient for children to have their ‘best interests’ (which in reality is the determination of the adult representative as to what is in their best interests) represented to the decision-maker? Or is it crucial that someone advocates solely for children’s wishes? Is it possible for best interests and wishes to be represented by the same person? The global scene indicates that this question has not been answered adequately in most states. Although many children develop good relationships with professionals, which can make a huge difference to their lives,274 children can feel frustrated where they want their wishes represented, but professionals are instead preoccupied with perceived ‘best interests’.275 3.1.1 The Social Report: Children’s Views through an Expert? In many states courts can order reports in order to obtain information on the situation of a child in proceedings concerning them, though ordering these reports will often be at the discretion of the judge, as is the case in England and

274 Bell, note 237, at 1; Creegan et al., note 212, at 16. 275 Douglas et al., note 6, at 7–8.

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Wales. Such ‘social reports’276 or ‘custody evaluations’277 can establish the factual background of children and their relationships. If a ‘child expert’ such as a social worker provides the report, it may serve the purpose of providing the court with a professional interpretation of various aspects of children’s lives, such as the dynamics of those relationships. The positive aspects of such a medium is that it can permit children to, in a sense, be ‘heard’ where they otherwise would not be. Children such as those who are non-verbal (for example infants) and children who do not wish to be heard directly could be facilitated to provide the court with an understanding of their situation, and perhaps their preferences in this way. One negative aspect of the social report, however, is that in some cases children do not have any other way to be heard other than via this report, even where they may be well able to express wishes directly. Another is that the court receives the information through the prism of an intervening adult – the report writer. For children capable of expressing their views, this is a very paternalistic approach to communication with the court. For children who are non-verbal, the report writer may transmit an incorrect understanding of a child’s environment based on the writer’s own perceptions, assumptions and prejudices. A report should be one option for hearing children’s views – not the only one. Report-writers should also be aware of the limitations of the social report. The Committee states that children’s views be transmitted “correctly”278  – which presumably means that adult experts (usually social workers, ­psychologists, or other practitioners) should ensure that children’s views are transmitted ­verbatim to the decision-maker, before any attempts are made to analyse, interpret or undermine them. A common complaint by children279 is where professionals or their reports misrepresent their wishes; failing to understand or accept what those wishes are: [S]he wrote down things that we didn’t say and the report that came back wasn’t what we’d said at all … I actually

276 In England and Wales it is referred to as the ‘Section 7’ report after the relevant section of the Children Act 1989 under which it is ordered. In Australia the “family consultant” – a professional with a social work background – may provide a social report to the court. Fernando, note 198, at 48. See also Yvonne Darlington, “Experiences of Custody Evaluation: Perspectives of Young Adults Who Were the Subject of Family Court Proceedings as Children” 3 Journal of Child Custody 51 (2006). 277 In the us context see Emery, Otto and O’Donohue, note 181. 278 Committee on the Rights of the Child, General Comment No. 12, note 2, para. 37. 279 See also Fiona Morrison, Children, Contact and Domestic Abuse Unpublished doctoral dissertation, (University of Edinburgh, 2014). Morrison undertook interviews with 15 mothers and 18 children, who had been opposed to contact in the context of domestic abuse.

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turned round to her and said, “You’re putting words into his mouth ’cos he’s not actually saying that.”280 Asking children about their views and wishes is often not the focus of the report, and may not even be perceived as a necessary part of the process. In some circumstances the professional tries to assess the wishes of the child indirectly, rather than asking a child outright.281 This approach seems overly protectionist, dishonest even, unless there are very compelling reasons for this approach. It means that children may not have an explicit opportunity to give their views. Furthermore, without knowing the purpose of the conversation with the professional, they may not realise the need to strategically guard what they say in the interests of diplomacy or whatever other reasons they may have. If they really would rather spend every night with their mother, for example, but want to spend some overnights with their father solely to save his feelings, then it should be their right to remain discreet about the fact that they are seeking to benefit their father rather than themselves, if this is what they want to do.282 Many children in the research indicate such diplomatic strategising: I used to try and protect my parents … my Mum wants me to go there with her, like she wanted me to go on holiday. Actually I don’t particularly want to go, but I’ll go, because, you know, I mean it wasn’t like the end of the world, you know. So occasionally yes, I do things to please my parents, ’cos yeah, I think everyone does that.283 Most if not all of us operate strategically every day in order to save the feelings of others, to achieve certain goals, and to portray ourselves in the way we wish. It is impossible to see how the best interest decision can properly be made without the report-writer being open with the child about the purpose of the report; giving the child an explicit opportunity to provide views and wishes; and then transmitting those wishes verbatim to the judge. 280 Seventeen year old girl with experience of family law proceedings, quoted in Douglas et al., note 6, at 85. 281 See for example G. (A Child – Intractable Contact) [2013] ewhc B16; and Fernando, note 198, at 50. Similarly, in South Africa, the Family Advocate may be asked to prepare a report in family law cases, but is not obliged to include the child’s views in that report. Kelly-Anne Cleophas and Usang Maria Assim, “Child Participation in Family Law Matters ­affecting Children in South Africa” 17 European Journal of Law Reform 294 (2015), at 302–3. 282 See for example a similar situation described in Jane Fortin, Joan Hunt and Lesley Scanlan, Taking a Longer View of Contact: The Perspectives of Young Adults who Experienced Parental Separation in their Youth (Sussex Law School, 2012), at 226. 283 Molly, aged 16, quoted in Liz Trinder, “What Might a Child Mean by ‘Meaningful Relationship’?” 15 Journal of Family Studies 20 (2009), at 29.

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In Canada, the obligation to directly consult children is explicit. In family law cases the court may request “Views of the Child Reports”284 where children are aged eight years or over. An expert will prepare a report for the court based on interviews with children and parents, and possibly collect other information. As the title of the report makes clear, an overt part of this process is to inform the court of the child’s wishes.285 They usually give a straightforward, unanalysed description of the child’s views and wishes.286 Reports should not be used in place of adult support and representation for children, however. As one solicitor in Ireland noted: I am very critical of social reports in the place of guardians ad litem. They are an information-gathering exercise. They don’t involve the representation of children and their interests. They involve adults as they relate to children, and not the other way around. Social reports do not represent the views of the child.287 Whilst social reports may be an important part of the process for many children, particularly where children are too young to express wishes, they should not be the only option. It should be recognised that they are paternalistic and children’s verbatim wishes should be made clear in such reports. Although professionals may have to provide a best interest analysis also, they should be very cautious if they are seeking to undermine children’s words, particularly where they seek to claim that these are not the child’s ‘real’ wishes.288 3.1.2 The Social Worker/Best Interest Representative A representative can be one of the ways in which children are heard in ­proceedings – this is outlined in the text of crc Article 12.289 Representation can be a helpful way in which children who wish to remain physically removed from proceedings can still have their interests protected. The guardian ad litem 284 Section 211(1)(b) of the Family Law Act (2011). 285 Rachel Birnbaum and Nicholas Bala, “Judicial Interviews with Children in Custody and Access Cases: Comparing Experiences in Ontario and Ohio” 24 International Journal of Law, Policy and the Family 300 (2010), at 331. 286 The Canadian Bar Association: British Columbia Branch Website, Custody and Access, Guardianship, Parenting Arrangements and Contact (May 2013). Available at: http://www .cba.org/bc/public_media/family/142.aspx (last accessed 31 Oct. 2014). 287 Interview with solicitor, Dublin, 16 May 2008. Daly, note 102, at 341. 288 See further Chapter 6, Section 4.2. 289 crc Article 12(2) notes that children may be heard “either directly, or through a representative or an appropriate body …”

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or ‘children’s guardian’290 is one such professional who can provide this service.291 As well as preparing the social report, the guardian ad litem may take a more active role in representing the child’s wishes and interests. Yet there is no agreed definition of the role at international level292 and sometimes even within states.293 In England and Wales this professional will usually have a social work background. On the other hand, in the us, trained lay volunteers may perform these duties.294 In Scotland’s Children’s Hearings, these individuals may have a social work or law background.295 In the us these court-appointed special advocates (casas) or volunteer guardians296 serve in courts in every us state, though in many states paid professionals also undertake this work. The role of the us guardian, as with their counterparts in England and Wales, is to represent primarily best interests rather than wishes, and they receive training in child development.297 Bilson and White point to research suggesting that casas/guardians may be superior to lawyer guardians when it comes to investigation and monitoring 290 See note 5. 291 The Committee states that: “In situations where the child’s views are in conflict with those of his or her representative, a procedure should be established to allow the child to approach an authority to establish a separate representation for the child (for example a guardian ad litem), if necessary.” Committee on the Rights of the Child, General Comment No. 14 on the Right of the Child to Have His or Her Best Interests Taken as a Primary Consideration (29 May 2013) CRC/C/GC/14, para. 90. 292 Bilson and White, note 159, at 223. 293 In the us context see Margaret Sjostrom, “What’s a gal to do? The Proper Role of Guardians Ad Litem in Disputed Custody and Visitation Proceedings” (2004) 24 Children’s Legal Rights Journal 52. 294 In the us, the Child Abuse Prevention and Treatment Act 1974 requires the appointment of a guardian ad litem in child protection proceedings. Child Abuse Prevention and Treatment Act of 1974, Pub. L. No. 93–247, § 4(B)(3), 88 Stat. 4 (1974) (codified at 42 u.s.c. §§ 5101–51 19c (2005)). 295 Rachel Ormston and Louise Marryat, Review of the Children’s Legal Representation Grant Scheme: Research Report (Scottish Government, 2009), at 33. These professionals are known as ‘safeguarders’ and are appointed for children in a small minority of hearings. They represent their ‘welfare’ rather than their views, which children express dissatisfaction about, ibid., at 33. See also Griffiths and Kandel, note 88, at 292. 296 Bilson and White, note 159, at 229. 297 Ludwig Salgo, “Representing Children in Civil Child Protection Proceedings: Lessons from a Comparative Study of the Systems operating in the usa, Australia, France, Germany and England and Wales” 10 Representing Children 225 (1998), cited in Bilson and White, at 230. The National Court-Appointed Special Advocates Association (ncasaa) provides training and assistance to ensure the quality of volunteers. Bilson and White, ibid, at 229.

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in children’s­cases, whilst (unsurprisingly) lawyers will be more effective in the legal representation role. Whether cases with legal representation have better outcomes for children is, however, unclear.298 Despite reports of very positive work by voluntary guardians in the us,299 the voluntary system is symptomatic of the underfunding of representation for children. Practitioners emphasise that adequate representation requires adequate payment300 and in Germany, voluntary guardians ad litem are dissuaded by the lack of renumeration.301 Therefore, although the volunteer system may be attractive in terms of (assumptions about) saving resources, it may not serve children sufficiently well, and is certainly no substitute for legal representation. The guardian ad litem, as Koh Peters emphasises, originated from English law primarily for the purpose of safeguarding the property interests of children who may not have the capacity to do so themselves.302 Whilst acknowledging the benefits of the guardian ad litem model in terms of protecting children who genuinely wish to remain removed from proceedings, the model does not transfer easily into the area of representing children in modern proceedings concerning personal living arrangements and relationships. It seems ­accurate to emphasise that this professional in reality (in the us, uk and ­Ireland at least) represents their own version of children’s ‘interests’ rather than the wishes of the child as they are under no special obligation to advocate for children’s wishes and sometimes do not seek their views or even meet with them.303 In England and Wales as noted above it is mandatory that a children’s guardian be appointed in child protection proceedings304 (unless there are reasons not to) in order to safeguard the child’s interests.305 Though the child will then be party to proceedings,306 the solicitor usually takes instructions from the guardian. In family law proceedings the child will have a guardian (with

298 Bilson and White, ibid. 299 Ibid, at 229. 300 Jean Koh Peters, “How Children are Heard in Child Protective Proceedings, in the United States and Around the World in 2005: Survey Findings, Initial Observations, and Areas for Further Study” 6 Nevada Law Journal 966 (2006), at 1000. 301 Fegert and Stötzel, note 262, at 221–2. 302 Koh Peters, note 8, at 110–1. 303 See for example G. (A Child – Intractable Contact) [2013] ewhc B16, outlined in note 202. 304 See Children Act 1989, Section 41(6). 305 Family Procedure Rules 2010, Rule 16.20(1). 306 Family Procedure Rules 2010, Rule 6.2.

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attendant party status)307 only a small percentage – around 4% – of cases.308 The duties of the guardian are set out in a Practice Direction,309 and include carrying out such investigations as necessary,310 providing advice to the court on such matters as the views and capacities of the child,311 and the preparation of a final report.312 In Ireland, the guardian’s independence is questionable because they are paid directly by the authority taking the case.313 In England and Wales steps have been taken so that this does not occur.314 Although the main role of the guardian in England and Wales is to represent children’s interests, facilitating the wishes of children has become an increasingly important part of the role of the guardian in recent years. For example, the 2007 National Standards document315 for England and Wales outlines that cafcass will: “Ensure each child has a voice … [b]e clear about the needs, wishes and feelings of individual children”316 Two of the five points of the Vision Statement concern children’s views, which is of course positive from the perspective of respect for children’s autonomy.317 Nevertheless resource constraints have inevitably had a damaging effect on the service provided to children, including the ability to represent their views. Concerns have been raised that the increased workload since 2008318 has affected the ability of guardians

307 Family Proceedings Rules 2010 Rule 16.2(1) and Rule 16.4. 308 In 2015/16, in 1,600 out of 37,649 private law cases children had this status. cafcass, Annual Report and Accounts 2015/16 (cafcass, 2016), at 1, 17 and 19. It was estimated in 2006 that children were appointed guardians in approximately 2–10% of relevant family law cases concerning, depending on the region. Douglas and Murch, note 184, paras. 2.47–8. 309 Practice Direction 16A. A Practice Direction is a device in English law for managing minor procedural matters. They may be given within procedural rules, or by individual courts and judges. 310 Practice Direction 16A, 6.1(a). 311 Practice Direction 16A, 6.6. 312 Practice Direction 16A, 6.8(a). 313 Daly, note 102, Chapter 8. 314 In 1984 local authorities established panels of guardians, who in turn worked in neighbouring authorities, so that no guardian would represent children in cases in which the employing authority was a party. Bilson and White, note 159, at 225. 315 cafcass, cafcass National Standards (cafcass, 2007). 316 Ibid, at 1. 317 Furthermore, Standard 5 is entitled “Children’s active involvement” and states that cafcass will ensure all children are “seen, heard and understood” and that their involvement is ensured in their cases in a way that reflects their “wishes, competence and understanding.” Ibid, at 4. 318 cafcass, The Work of Children’s Guardians in Care Cases (cafcass, 2013), at 4.

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to provide an adequate service to children and the courts.319 In 2013 cafcass examined the case reporting of guardians for 155 children,320 which established that guardians had contact with the child in 95% of cases,321 although the younger the child the less likely the personal meeting,322 and telephone contact was counted in the figures,323 raising questions about the quality of contact. In spite of the rhetoric of the guardian as representative of views, the guardian has many – potentially competing – elements to their role. In the case of R. (R., E., J. and K.) v cafcass the court emphasised that: “The guardian is both the voice of the child and the eyes and ears of the court. As any judge who has ever sat in care cases will be all too aware, the court is at every stage of the process critically dependent upon the guardian.”324 This quote emphasises well the fact that the guardian serves as an ostensibly impartial party to proceedings alongside parents and state, as well as emphasising the duty the guardian has to the court – two potentially conflicting roles. The “voice of the child” is also clearly part of the remit.325 Yet representing children’s wishes is not necessarily the primary function that comes across in this summary of the importance of the role in the quote above. Considering the varying duties of the guardian it seems inevitable that there is a risk that at times the focus of the professional will be diverted from the views of the child. The guardian is also a potential obstacle between child and legal representative. The guardian leads on the representation of children in proceedings, rather than the child’s solicitor,326 and as the guardian is primarily a ‘best interests’ representative, this is inevitably going to be the factor on which there

319 320 321 322 323 324 325

Ibid, at 4. Ibid. Ibid, at 5. Ibid. Ibid. R. (R., E., J. and K.) v cafcass [2011] ewhc 1774, at para. 38. Judith Timms, Sue Bailey and June Thoburn, “Children’s Views of Decisions Made by the Court: Policy and Practice Issues arising from the Your Shout Too! Survey” (2008) 14 Child Care in Practice 257, at 264. Unfortunately, although 74% of children felt ‘heard’, only half of children felt that their cafcass guardian had been helpful or very helpful, giving a sense of “too little, too late” as the reason for this perception (at 263). ‘Helping children to be heard’ and ‘helping me live with who I want to’ were common positive points cited by children; but ‘not listening carefully’; ‘putting pressure on to see a person the child did not want to see’; and ‘being patronising’ were negative points (at 264). 326 R. (R. and Others (Minors)) v cafcass [2012] ewca Civ 853, at para. 66.

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is a primary focus.327 Yet there can easily be disagreement between guardian and child as this boy perceived of his experience: … I think she was more on my mum’s side than me or my dad … ’cos anything I said she turned round and made it look like I said I was the bad one … which I don’t think it was fair at the time.328 Of particular concern is the way in which young children are represented by guardians. First, the trend in guardian practice appears to be that, the younger the child, the less first hand meetings that will be conducted with the child, which seems simply unjustifiable – surely observing infants is as important as speaking to adolescents in order to get a sense for the child’s situation, preferences, motivations.329 Secondly, it is well documented that guardians may not be adequately trained to understand child development,330 or to ascertain the wishes of children generally, and young children in particular.331 Only 30% of these professionals report having training in communication with young children and only 16% in ascertaining children’s wishes; with many of them relying on their own initiatives to learn skills and seek-out training.332 Although practitioners generally feel comfortable ascertaining the wishes of children as young as four years, the research highlights the need for further training for professionals to gain the skills to ascertain the wishes of children under this age.333 There are many positives to the well-regarded334 guardian model in England and Wales. Children require support and assistance if they are to be involved in proceedings and guardians can provide this support. Where children are particularly vulnerable a ‘best interest’ advocate may identify issues and needs that a wishes advocate would not. Furthermore, the guardian ad litem, as an 327 One adult interviewee in the research of James et al. encapsulated well the typical adult approach to children’s views by stating that, at the end of the day, adults must decide what is best. Cited in Adrian James et al., “Turn Down the Volume?: Not Hearing Children in Family Proceedings” 16 Child and Family Law Quarterly 189 (2004), at 196. 328 Fifteen year old boy quoted in Douglas et al., note 6, at 63. 329 cafcass, note 318, at 24. 330 Eileen Munro, The Munro Review of Child Protection – Interim Report: The Child’s Journey (Department of Education [England and Wales], 2011), at 75. Munro states that child development is not covered well in all courses which qualify professionals for social work. See also Gill Handley and Celia Doyle, “Ascertaining the Wishes and Feelings of Young Children: Social Workers’ Perspectives on Skills and Training” 19 Child and Family Social Work 443 (2014) and Harriet Ward et al., Infants Suffering, or Likely to Suffer, Significant Harm: A Prospective Longitudinal Study (Adoption Research Initiative, 2010). 331 Handley and Doyle, ibid and Ward et al., ibid. 332 Handley and Doyle, ibid. 333 Ibid. 334 See for example Taylor et al., note 8, at 670 and Shannon, note 153.

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independent representative of the child, provides independent oversight of state services. On a number of occasions in my court observations in Ireland, guardians ad litem recommended therapeutic treatments such as counselling which authorities did not support. In one instance the judge commented: “I want to know that the [authority] are committed to doing it … it would benefit [the child]. The guardian ad litem report is very clear.”335 In addition to this, another positive element of guardian appointment is that there tends to be a strong emphasis (at least in theory) on children’s wishes, and children enjoy legal representation to a degree (usually instructed by their guardian). However the model arose from concerns about children’s ­welfare rather than their wishes per se, and this is clearly evident in the functioning of the system. The vague notion of ‘hearing’ children lends itself to a discretionary approach to children’s autonomy. Clearly professionals should be obliged to meet the child, to seek the wishes of the child, to transmit them in verbatim form, and to prioritise children’s autonomy, rather than simply viewing wishes in the context of all other factors. Secondly, children should have an advocate for their wishes in some shape or form. The system could be modified so that children retain both guardian and lawyer, but the guardian would continue to focus on welfare, and the lawyer would take instructions from the child where the child wanted this. In this way children would enjoy the benefit of both oversight of the welfare, and direct, unquestioning representation of their wishes also. Although this occurs already in some cases with older children, significant reform would be required in order to have a presumption in favour of this approach. Children’s legal representatives would be required, for example, to be highly trained in child development in order to communicate with younger children, as guardians usually are in the us and New Zealand.336 The biggest obstacle, however, would most likely be the need to persuade legislators and practitioners of the benefits of such a model. 3.1.3

The Legal Representative: Advocating for Children? Being separately represented – To be honest was the only good thing.337

In a study in England, children with party status in family law proceedings were asked which professional they felt most positively about – they were 335 Dublin District Court, 2008. See Daly, note 102, at 324. 336 See below Section 3.1.3. 337 Fourteen year old boy with experience of family law proceedings, quoted in Douglas et al., note 6, at 53.

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most likely to choose their legal representative,338 most likely because children appreciated that it was their wishes that were being advocated for. In spite of the fact that children will likely need such a representative to adequately be involved in proceedings, they rarely enjoy this. Whether children should have a publicly-funded legal representative in best interest decisions is a controversial matter. Even human rights bodies – which are supposed to be setting children’s rights standards – set qualified expectations rather than aiming to ensure that all children enjoy the representation of a legal representative in proceedings in which children’s own best interests are being determined. Although General Comment No. 14 asserts that children should have legal representation in proceedings concerning their best interests, it states that it will be necessary in particular “when there is a potential conflict between the parties in the decision,”339 which appears to leave room for an argument that children should have legal representation only in unusually difficult cases. Although in some countries children may have legal representation in child protection proceedings (even if children do not instruct them directly),340 in private law proceedings it is very infrequent. There are no available global figures, but from reading literature from around the world, it seems that children very rarely have legal representatives to advocate on their behalf in these circumstances. In some states, where the adversarial approach is not used, this is somewhat (though not always)341 understandable. Legal representatives may not be common in such systems; whereby the judge comes to a conclusion on the basis of the evidence before the court, rather than having parties advocating for either side. Judges more commonly speak directly with children in

338 Timms, Bailey and Thoburn, note 325, at 263. 339 Committee on the Rights of the Child, General Comment No. 14, note 291, para. 96. The following lukewarm reference to legal aid is made in the Council of Europe guidelines (at 33): “Guideline 38 makes the recommendation to provide children with access to free legal aid. This should not necessarily require a completely separate system of legal aid. It might be provided in the same way as adults, or under more lenient conditions, and be dependent on the financial means of the holder of the parental responsibility or the child him or herself. In any case, the legal aid system has to be effective in practice.” It is difficult to envisage how a system where legal aid is dependent on the child him or herself could possibly be effective in practice. 340 For example in England and Wales and the us. See for example Theresa Hughes, “Representation by Proxy: Adolescent Courtroom Participation in Child Welfare Proceedings” 30 Children’s Legal Rights Journal 1 (2010), at 9. 341 In the Swedish system, for example, it is often criticised that children have no representation in family law cases. See for example Leviner, note 103.

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these systems. Yet in the common law adversarial system, a lack of legal representation effectively renders the child at an enormous disadvantage compared to parents. It means that parents can represent themselves (or have a lawyer do it if they are fortunate enough); whereas the child plays no role as they usually do not have party status. It is certainly problematic to have cases where children are the only represented parties due to legal aid cuts; cuts which have denied assistance for many parents in private law cases (and often, delays in public law cases), as we are now seeing in England and Wales. Judges are understandably mindful of such problematic scenarios.342 Yet it should not be a race to the bottom. Whilst legal representation is expensive, in adversarial systems it is very difficult for adults to negotiate the legal system without them. For children it may be impossible (because of the assistance they need in understanding proceedings and so on), and they certainly cannot have party status without a legal representative. It is justifiable to have children represented even where adults are not. The next major problem is that, as with the guardian ad litem role, where children are fortunate enough to have legal representation in best interest decisions, there are regularly misunderstandings and inconsistencies about what the role of the legal representative entails. It is somewhat understandable that guardians ad litem – established to represent children’s interests, rather than their wishes – are regularly not focused on advocating for what children want. Yet to have legal representatives who may not do so constitutes a very strange modification of the role – the main task for lawyers is usually to take instructions from their clients.343 In the global context, it varies from state to state as to whether lawyers take directions from their child clients,344 take directions from their best interest advocates,345 or represent the child client with the understanding that the lawyer can refuse to advocate for a preference of the child which in the lawyer’s opinion is not in the best interests of the child. In Sweden children have a legal representative in child protection proceedings. The lawyer represents children under 15 years on the basis of what they deem to be in the child’s best interests, but where children are aged 15–17 years, they represent the child’s 342 See for example R. (j.g.) v Legal Services Commission [2013] ewhc 804. 343 Koh Peters states that “lawyers are constrained to follow the wishes of their clients … The lawyer may not override those wishes, even if a lawyer is convinced that they are wrongheaded.” Koh Peters, note 8, at 127. 344 See the example of Massachusets. First Star, note 272. 345 This is generally the practice in England and Wales although older children may instruct if the solicitor deems them to have capacity. See note 347.

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wishes.346 In England and Wales the lawyer has discretion as to whether to take instructions.347 In the us348 children must be represented in all child protection cases, which has led to a ‘guardian ad litem lawyer’ role in some instances. 61% of us states mandate that children have legal representation in such proceedings.349 There are a variety of ways in which these lawyers conduct their roles.350 In most states (69%),351 rather than taking instructions from their clients, the “guardian ad litem” lawyer in a child protection case represents the course of action they deem to be in the best interests of the child. Jurisdictions differ, for example, on whether the guardian ad litem can or cannot file motions or examine witnesses.352 The lack of consistency between states, and the generally over-protectionist approach, has led to many calls for standardisation of the guardian ad litem role across the us, as well as a lobby for adequate legal representation for children in these cases.353 In order to have a good practice template from which to work, the ­American Bar Association (aba) passed a comprehensive policy – a Model Act ­Governing the Representation of Children in Abuse, Neglect, and Dependency ­Proceedings – providing lawyers with clear guidance on representing ­children.354 The ­Model Act outlines a role for the lawyer in which much responsibility is taken for the child’s experience in proceedings. The lawyer provides a guiding role, ­advising, informing, conducting interviews with people in the life of the child. The aba Model Act establishes that children’s lawyers should have child welfare-based training and annual continuing legal e­ ducation. It is, notably,­ 346 Leviner, “The Right to a Fair Trial from a Child’s Perspective: Reflections from a Comparative Analysis of Two Child Protection Systems” Paper presented at Conference on ChildFriendly Justice, note 163, at 10. 347 The judge may overrule this however, as happened in W. (A Child) [2016] ewca Civ 1051 although the legal representative was willing to take instructions from the 16 year old girl. An appeal court overturned the order. 348 Child Abuse Prevention and Treatment Act (capta) 1974. 349 First Star, note 272, at 10. 350 Koh Peters, note 300, at 969. 351 First Star, note 272, at 10. 352 Koh Peters, note 8, at 61. 353 See for example First Star, note 272, at 7–8 and Donald Duquette, “Legal Representation for Children in Protection Proceedings: Two Distinct Lawyer Roles Are Required” 34 Family Law Quarterly 441 (2000–2001), at 442–3. 354 Model Act Governing the Representation of Children in Abuse, Neglect, and Dependency Proceedings 2011. See Andrea Khoury, “Policy Update: aba Adopts Model Act on Child Representation in Abuse and Neglect Cases” 30 aba Child Law Practice 106 (2011), at 106.

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impressively ­respectful of children’s autonomy. The Act advocates taking instructions from children as any other client. Even where the child’s lawyer believes that the child has “diminished capacity” – and they have guidance on how to determine this355 – the lawyer still has discretion to take instructions.356 Where the child is deemed to have diminished capacity, and is “at risk of substantial physical, financial or other harm …” the lawyer can take “protective action” including seeking to appoint a best interests advocate.357 This is a significantly different role to that taken by the lawyer, for example, in child protection proceedings in England and Wales, as they usually represent the guardian ad litem, who are proponents of children’s apparent ‘best interests’. This practice is applied Massachusetts; identified as the us state which provides the best representation for children in child protection proceedings by non-governmental organisation First Star.358 Even where the child lacks capacity359 the lawyer must represent her wishes unless pursuing them will “subject the child to a risk of substantial harm.”360 Only where the dual characteristics of incapacity and substantial harm occur together can the lawyer take action other than representing the client’s wishes.361 In such an instance, lawyers have a number of options – they may represent the child’s wishes anyway; appoint a best interest advocate; or determine what the child would wish if she were competent and recommend this (similar to, but a deviation from, the best interest approach).362 This model ensures that children are treated differently to the adult client only where strictly necessary. There are still options­ for ‘protecting’ children if it is deemed essential, but paternalism is kept to a minimum. 355 The aba Model Act Governing the Representation of Children in Abuse, Neglect, and Dependency Proceedings aba Model Rules of Professional Conduct (2004). 356 Section 7(d). 357 Section 7(e). 358 First Star has conducted a comprehensive study assess such provision. First Star, note 272, at 70–1. 359 Lawyers are guided in determining this by Massachusetts Committee for Public Counsel Services, Children and Family Law Division, Performance Standards Governing the Representation of Children and Parents in Child Welfare Cases para. 1.6(b) which stipulates that legal representatives must consider whether children can articulate a reason for the preference they give; whether they are using a logical decision-making process, and; whether they understand the consequences of the decision they are making. 360 Massachusetts Committee for Public Counsel Services, at 27. In accordance with the Model Act Governing the Representation of Children in Abuse, Neglect, and Dependency Proceedings 2011. 361 Ibid. 362 Massachusetts Committee for Public Counsel Services, para 1.6(d).

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The roles of children’s lawyers in Australia’s and New Zealand’s also provide insightful examples of practice. Australia provides a legal representative focused on the best interests of the child, and New Zealand’s lawyers – like those in Massachusetts – are required to take instructions from their child clients.363 In Australia, in Re K. it was established that the court is to appoint an Independent Children’s Lawyer (icl) where the interests of the child require independent representation364 including cases in which there is significant conflict between parents, cases where ‘parental alienation’ is present, or cases in which there are allegations of child abuse.365 The rate of appointment of such representatives is, therefore, necessarily limited. The Guidelines for Independent Lawyers366 state that the primary role of Australia’s icls is a “best interests advocate” – they are not to take instructions from the child whose interests they represent.367 Children’s views must be put before the court by the icl368 and children should generally be involved in the decision-making in a case, however the degree to which children will be involved will depend on factors such as the age and perceived cognitive abilities of the child.369 The Guidelines also specify that children “have a right to a professional relationship with the icl” and that the icl is to provide information to children on the court process, how children can be heard, and the possibility of applying to have party status in proceedings.370 However in practice icls do not meet with children, or provide them with the information they are required to, in all cases: instead relying on the “family consultant” – the guardian ad litem equivalent in Australia.371 Clearly if the representative has not met with the child, they cannot represent them adequately. The New Zealand approach to children’s lawyers is quite different. The children’s lawyer in New Zealand takes instructions from the child as a traditional lawyer does,372 though they have the additional duty of putting forward their

363 364 365 366

Fernando, note 198. Re K. (1994) flc 92–461. Cited in Fernando 2014, at 48. Fernando, note 198, at 48. Legal Aid Commissions of the Australian States and Territories, Guidelines for Independent Lawyers (2007). 367 Ibid, at 2. 368 Family Law Act 1975 (Cth) ss 68LA(5)(b). 369 Ibid, at 2. 370 Family Law Act 1975 (Cth) ss 68LA(5)(b), at 3. 371 Fernando, note 198, at 48–9. Fernando cites for example Hart, note 198, at 35. 372 Fernando, ibid, at 51. Fernando cites Family Court of New Zealand, Practice Note: Lawyer for Child: Code of Conduct (Family Court of New Zealand, 2007), para. 14.1.

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perception of the child’s best interests.373 The lawyer may invite the appointment of a second lawyer, a “counsel to assist” to represent what she perceives as the best interest of the child if she feels there is a conflict.374 The children’s lawyer also takes a strong role as the guide and information provider for the child; even transporting children to court-ordered events.375 There are aspects of the potential appointment of the second ‘best interests’ lawyer which are both positive and negative. On the one hand, given the often vulnerable position of children, such provision can be seen as helpful as it may protect children where the outcome they are seeking poses a threat in some way. On the other, it arguably cancels-out the child’s instructed lawyer, as the court has one lawyer arguing in favour of the child’s wishes and one arguing against. In fact it probably tips the balance well away from an outcome in conformity with the wishes of the child, as the court will be aware that the lawyer representing the child’s views in fact disagrees with those wishes, because the lawyer has, after all, sought a best interests representative! Nevertheless, very strong provision is made for children’s autonomy in the New Zealand model: There is a presumption in favour of hearing children; children’s wishes will be not only represented, but advocated. This system of representation is not as focused on the autonomy of the child to the extent that occurs in Massachusetts, however. The New Zealand children’s lawyer can move to protect ‘best interests’ simply if they disagree with the child – in Massachusetts this can only be done on the basis of “substantial harm”. Another important point is that the rate of appointment of children’s lawyers in family law cases in New Zealand has only recently been limited significantly. Up until 2013, lawyers were appointed for children in all children’s cases that are likely to proceed to a hearing, unless this would serve “no useful purpose.”376 This presumption in favour of appointment essentially rendered New Zealand one of – if not the – best providers for the right to be heard in private law in the world. Unfortunately, an amendment through the Care of Children Amendment Act (No 2) 2013 restricts appointments of lawyers only to cases in which the court considers it “necessary”377 and parties are expected 373 Fernando, ibid. Fernando cites Peter Boshier, “The Care of Children Act 2004: Does it Enhance Children’s Participation and Protection Rights?” 9 Childrenz Issues 7 (2005), at 8. 374 Fernando, ibid. Fernando cites Family Court of New Zealand, para. 5.5. 375 Fernando, ibid. Fernando cites Family Court of New Zealand, Children’s Guide to the Family Court (Family Court of New Zealand, 2014), para. 10. 376 Care of Children Act 2004, s7(2). Cited in Fernando, note 198, at 51. 377 Instances where there are concerns about a child’s safety are specified, but “necessary” is left undefined after this. See further Atkin, note 244, Section entitled “Where Do Children Fit in?”.

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to pay for this. This, sadly, means that “their status is now downgraded”378 and it renders New Zealand similar to most other states in which a prominent role for children is lacking in family law proceedings. As can be seen from the examples provided, the practices of legal representatives can vary widely in the nature, and one could argue the quality, of their provision. In some cases children may not even have a meeting with the representative, in others they will have their ‘best interests’ rather than their wishes advocated for, in others still they will have the right to directly instruct the representative. Where lawyers are appointed, it is important that they are to play a strong role of guidance, advice, and information-sharing, as is the case in New Zealand. It is also important that children’s autonomy is upheld to the extent possible, as under the Massachusetts model. It also hardly needs pointing-out that it is crucial for children’s due process rights that in legal systems which require party status and legal representation in order for children to participate as equals, there should be a presumption in favour of this. It is unfortunate that this presumption has been removed in New Zealand. 3.1.4 Concluding Thoughts on Representation The global landscape is such that children are fortunate to have any facility through which to be heard – in many cases, particularly in private law disputes, it appears that they will not be heard at all. A social report, even one which prioritises ‘best interests’, is far better than nothing. There are undoubtedly benefits­to reporting on or representing ‘best interests’ in some cases, particularly those involving child protection issues where independent oversight of state practice is useful. It may also be crucial where the child is not capable of forming views or does not wish to. However provision of a best interest report, or even a best interest representative, on its own cannot be said to adequately vindicate children’s right to involvement in proceedings in which their best interests are being determined. Legislation and policy should stipulate that children’s wishes are transmitted by the best interest representative unanalysed to the decision-maker, as this is the least that can be done to respect children’s autonomy. Yet ideally children’s wishes should not only to be heard, but advocated for by a skilled representative, in the same way that the other individuals/parties in proceedings will be advocating their own arguments, or having this done on their behalf. As one young adult with experience of proceedings as a child puts it: [E]verybody in

378 Ibid.

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the case is in pursuit of their own agenda and consequently that of the child is lost …379 In the ‘ideal’ Article 12(2) presented in Chapter 1,380 it is stated that: “All children must be recognised as individual rights-holders, with party status381 and representation as appropriate …” The term “as appropriate” is used in order to accept that in some legal systems, such as non-adversarial systems, party status and legal representation may not suit or fit the context in which children are heard. “As appropriate” should not be understood, however, to mean that party status and legal representation are not required in common law states with adversarial systems, as this may be the only way a child can meaningfully be involved. Yet a lawyer is a rare privilege for children. Without legal representation, an individual child’s wishes will simply not be as visible in proceedings as whatever is being sought by parties to the case, even where a social report has been ordered, or a ‘best interests’ advocate has been appointed. The child as an autonomous individual will be at an enormous procedural disadvantage. 3.2

A ‘Right’ to Speak to the Decision-Maker? [I]t makes me so frustrated ’cos I cannot say it from my own mouth and that would always be the argument with mum – mum would go ‘and your voice has been heard in court’ and I would say ‘NO it hasn’t, it’s only part of my voice.’382

In the ‘ideal’ Article 12(2) presented in Chapter 1,383 it is emphasised that children must have the right to, even receive encouragement to, meet the decision-maker when decisions are made about their best interests.384 In a wide-scale study on children’s views of proceedings affecting them in Europe, it was found that: “More than anything, they want to speak directly to those who take decisions about them.”385 The Committee has expressed unambiguously that under Article 12, children are to have the opportunity to be heard by 379 Nineteen year old young man speaking of his experiences of family proceedings as a child, quoted in McIntosh, note 55, at 101. 380 Section 8.2. 381 Party status is considered separately below at 3.3.3. 382 Fourteen year old boy with experience of family law proceedings, quoted in Douglas et al., note 6, at 50. He is discussing the fact that he could not meet the judge directly. 383 Section 8.2. 384 Ideal crc Article 12(2)(c). 385 Kilkelly, note 161, at 39.

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the decision-maker directly.386 The laws in a high number of states globally – 72 – were found in 2005 to require that children must be heard directly in child protection proceedings.387 Much of the literature – primarily from common law countries – frames direct communication as problematic. Yet practices in many common law states highlight that direct judicial communication with children (often called the ‘judicial interview’,388 I prefer ‘judicial meeting’389) can be done regularly.390 In civil law systems children often meet with judges in proceedings concerning their interests. Children have a right to meet with the judge in certain circumstances in France391 and legal aid is even made available if children wish to be heard in the company of a lawyer, though the lawyer will not be an advocate for the child.392 The many other jurisdictions in which children regularly meet judges include Germany,393 the Netherlands394 and the Canadian province of Quebec.395 Reports of how these meeting operate in practice 386 Committee on the Rights of the Child, General Comment No. 12, note 2, para. 35. There are many other references to the preference by the Committee. When commenting on the 2005 report of Finland, for example, the Committee recommended that the state take measures to ensure that, “the child has the right to express his/her views directly to the judge when decisions in judicial and/or administrative proceedings affecting the child have to be taken.” Committee on the Rights of the Child, Concluding Observations: Finland (20 October 2005) CRC/C/15/Add.272, para. 23. The Committee has also expressed concern about the fact that in proceedings in Iran, the views of children are only represented through the father or paternal grandfather (or other appointed guardian) and not by the child directly, Committee on the Rights of the Child, Concluding Observations: Iran (28 February 2005) CRC/C/104/Add.3, para. 33. 387 Koh Peters, note 8, at 103. 388 See for example John Caldwell, “Common Law Judges and Judicial Interviewing” 23 Child and Family Law Quarterly 41 (2011). 389 The ‘judicial interview’ gives the impression that the purpose of the interaction is so that evidence can be gathered from the child. 390 For example New Zealand. See further Fernando, note 198, at 53 and below. See extensive guidelines outlined in Nicholas Bala et al., “Children’s Voices in Family Court: Guidelines for Judges Meeting Children” 47 Family Law Quarterly 381 (2013). 391 Bilson and White, note 159, at 232. 392 Ibid, at 232. 393 Karle and Gathmann, note 68, at 172. 394 Coenraad, note 75, at 370. 395 Article 34 of the Civil Code states that “[t]he court shall, in every application brought before it affecting the interest of a child, give the child an opportunity to be heard if his age and power of discernment permit it” Birnbaum and Bala cite Sylvie Schirm and Pascale Vallant, La Representation Des Enfants en Matire Famille: Leurs Droits, Leur Avenir (Yvonne Blais, 2004). Birnbaum and Bala, note 285, at 303.

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appear generally positive. Judges find them very useful – nine out of ten family law judges interviewed in Germany felt that the hearings with children were ‘very’ or ‘fairly’ ‘meaningful’.396 75% of judges interviewed in Michigan in the us felt the same.397 In Israel, judges report that the meeting with the child contributes “a great degree” to their decision in around half of cases.398 In Germany the signs of stress in children in advance of and whilst attending judicial interviews is reported as very low and “[w]ithout exception the parents regard the judicial child interviews as a positive measure.”399 Children themselves generally report that they find these meetings very positive.400 These positive findings make it difficult to understand why there is such reluctance in common law countries to meet with children, particularly considering it happens in some common law jurisdictions without a problem. 3.2.1 Accessing the Judicial Meeting: Judges as Gatekeepers Even in states in which the judicial meeting is very common, judges themselves remain firmly in control of whether it occurs or not. In New Zealand, family law judges have long been speaking directly with children,401 but there has been increased attention to the issue since the early 2000s, when efforts were made to learn from practice in Germany.402 Guidelines were developed in 2007403 and today judges have (a very wide) discretion to speak with children in person.404 Research with family law judges in New Zealand established in 2009 that 65% of judges often, very often, or always spoke directly with 396 Karle and Gathmann, note 68, at 172. 397 Jacqueline Clarke, “Do I Have a Voice? An Empirical Analysis of Children’s Voices in Michigan Custody Litigation” 47 Family Law Quarterly (2013). 398 See Morag, Rivkin and Sorek, note 92, at 15 and Morag and Sorek, note 62, at 33. 399 Karle and Gathmann, note 68, at 179. 400 See European Union Fundamental Rights Agency, note 155, at 28. Interactions with judges in open court, however, were described by many children in this report in more negative terms. Also of note is that some children in Spain reported being unhappy with the judicial interview. 401 See Pauline Tapp, “Judges are Human Too: Conversation Between the Judge and a Child as a Means of Giving Effect to Section 6 of the Care of Children Act 2004” 1 New Zealand Law Review 35 (2006). 402 See Caldwell, note 388. 403 Family Court of New Zealand, Judges’ Guidelines: Decisions with Children (Ministry of Justice, 2007). Available at http://www.justice.govt.nz/family-justice/about-us/info-for -providers/info-for-lawyers/judges-guidelines-decisions-with-children (last accessed 6 Nov. 2014). 404 Ibid, para. 2.

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­children.405 The case of Brown v Argyll406 determined that the judge should exercise the discretion to speak with a child where she has maturity and/or firm views. Judges are also advised that, where they decide not to meet with a child, they should record the reason/s in the judgment.407 There is, therefore, a perception in in New Zealand to some extent that judges should only refrain from meeting children where there is good reason for this. The evidential problem of parties’ access to information is circumvented by the judge making it known to the child that a record may be taken and that it may be accessed by the parties408 though it is possible for content to remain confidential “when the welfare and best interests of the child may outweigh the requirements of natural justice.”409 If the child requests confidentiality, therefore, judges “may decide that the record (or the confidential part of it) shall not be made available to the parties.”410 Unfortunately it seems that in Ohio in the us judicial ‘interviews’ of children are a right of the adult parties, who can request the interview,411 although the judge can decline to interview children without capacity, or if the interview is perceived as not being in the child’s best interests.412 It has been established that failure to interview the child on the request of one of the parties will result in the ordering of a retrial, even where a judge has been “careful and conscientious” in weighing the evidence presented in a trial.413 Although research shows that the majority of judges see such interviews as the right of the child,414 (and are very positive about such interviews – “It’s a great law … You see the case through the children’s eyes …”415) the legislative framework in Ohio is decidedly­ 405 406 407 408 409 410 411

412 413 414 415

Fernando cites Caldwell, note 388, at 57. Brown v Argyll [2006] nzflr 705, para. 48, cited in Fernando, note 198, at 51. Family Court of New Zealand, para. 6. Ibid, para. 9. Ibid, para. 10–11. Ibid, para. 12. This is the terminology used in the legislation. See Section 3109.04 of the Domestic Relations Code. The Code reads: “In determining the child’s best interest for purposes of making its allocation of the parental rights and responsibilities … the court, in its discretion, may and, upon the request of either party, shall interview in chambers any or all of the involved children regarding their wishes and concerns with respect to the allocation.” See further Birnbaum and Bala, note 285, at 312. Section 3109.04 (B)(2)(b). See Birnbaum and Bala, note 285. Badgett v Badgett (1997), 120 Ohio App. 3d 448, 698 n.e. 2d 84. See Birnbaum and Bala, note 285, at 313. Birnbaum and Bala, ibid. Ibid.

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adult-oriented. This is exceptionally worrying considering hearing a child is supposed to be the right of the child, not a right of the adults involved. In Israel, although judges are extremely positive about interviews with children,416 their views on when to hear children have been found to be complex. Judges are supposed to refer all children to a specialised participation unit unless there are exceptional circumstances, yet in 2015 research it was found that in practice only 40% of children were referred. When interviewed, judges stated reasons such as being reluctant to burden a child with involvement, assumptions that participation would not assist the court, and technical reasons such as the parents having already reached agreement (in such circumstances the judge will not hear the case).417 Follow-up research indicated that judges began to increase referrals of children to be heard in more difficult cases, but decrease referrals in less difficult cases.418 When asked about reasons for this decrease, judges primarily referred to the increased judicial workload created by hearing children, as well as the emotional strain on judges of hearing children without having the means to assist them therapeutically.419 This again indicates resistance to the notion of hearing children as a right of children. In England and Wales judges also hold total discretion as to whether to meet with children in proceedings concerning them,420 and it has been emphasised in the case law that such meetings will be the exception rather than the norm.421 A Sub-Group of the Family Justice Council stated in 2008 that although such interviews should be encouraged,422 it is the role of cafcass, not the judge, to ascertain the views of the child.423 In 2010, the Family Justice Council issued guidelines for judges meeting with children in family law proceedings.424 Similar to the New Zealand guidelines it is advised that cafcass­

416 417 418 419 420 421 422

Morag and Sorek, note 62, at 33. Ibid, at 12. Ibid, at 22. Ibid, at 23. Re M. (A Minor) ( Justices’ Discretion) [1993] 2 flr 706. Ibid and B. v B. (Minors) [1994] 2 flr 489. Family Justice Council, Report and Accounts 2007–08 (Family Justice Council, 2008), para. 9.1. 423 The Family Justice Council Voice of the Child Subgroup “Enhancing the Participation of Children and Young People in Family Proceedings: Starting the Debate” Family Law Online (May 2008) 431. Available at http://www.familylaw.co.uk (last accessed 6 Nov. 2014), at 433. 424 Family Justice Council, Guidelines for Judges Meeting Children Who Are Subject to Family Proceedings (Family Justice Council, April 2010).

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inform the judge where a child wishes for an interview,425 and provide an opinion on whether that is appropriate.426 Age and determination of the child to meet should be considered by the judge,427 and the judge “should consider” writing an explanatory letter to the child where she decides a meeting is not appropriate.428 There have been suggestions in recent years that children should be provided with greater opportunities to meet judges, including by the President of the Family Court.429 Yet the infrastructure necessary to facilitate that is severely lacking. Of course, exactly why children might meet the judge is a crucial matter. It is emphasised in the England and Wales Guidelines that the meeting is not to be for the purpose of gathering evidence,430 but that: “[T]he purpose is to enable the child to gain some understanding of what is going on, and to be reassured that the judge has understood him/her.”431 This is somewhat confusing given the finding in Re G. (Abduction: Children’s Objections) [2010]432 that, inter alia, the failure of the first instance judge to meet the 13 year old girl should result in the overturning of the original judgment. The appeal judge expressed that the interview (and “the cogency of her reasoning”433) weighed heavily in the decision-making process for the appeal panel, as it should have done, according to the appeal court, for the trial judge. Therefore, are the views of the child not a type of “evidence” in this scenario? The meeting was not just for “reassur[ing]” the child “that the judge has understood him/her”434 as advised by the Council, but a substantive engagement in which information was obtained. Clarity on the precise nature and purpose of the meeting is needed. Some language used by the Council even suggests that the interview has a therapeutic purpose for children.435 Judges in Israel express a similar understanding. Yet, if interviews should be a means through which children exercise a ‘right to be heard’ then one would expect that, if the policy is specifically that

425 426 427 428 429 430 431 432 433 434 435

Ibid, Preamble, at 1. Ibid, para. 2. Ibid, para. 3. Family Justice Council, para. 4. See further Brenda Hale, “Are We Nearly There Yet?” Paper presented at Association of Lawyers for Children Annual Conference 2015 (Manchester, 20 Nov. 2015). This was reaffirmed in Re k.p. [2014] ewca Civ 554. Family Justice Council, para. 5. Re G. (Abduction: Children’s Objections) [2010] ewca Civ 1232. See Birnbaum and Bala, note x, at 314. Family Justice Council, para. 5. Family Justice Council, para. 5.

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c­ hildren cannot sway the outcome in this meeting, this constitutes tokenism. Hale wonders whether a meeting on these terms is merely a pr exercise for the courts.436 It seems that in many jurisdictions there is confusion of policy, of practice, or both on the matter of the purpose of the meeting.437 It should be made clear that the judicial meeting should be a right of children – many of them feel that the meeting is an opportunity not just to demystify the judicial process, but to argue the strength of their wishes. There is no reason why legal processes could not be modified to ensure that they can do this – if access of parties to information is a problem, then children can just be told that their views cannot be confidential. Yet it is very likely that much of the reason for focusing on hearing children as a therapeutic endeavour is not due to evidentiary concerns, it is due to the reluctance of adults to give the impression that children might or should have any real power in the meeting or in the proceedings more generally. 3.2.2 Reasons for Reluctance to Conduct Judicial Interviews There is much reference to the concern over procedural fairness concerning judicial meetings,438 though in many scenarios interviews are regularly held without a problem. In New Zealand, as noted above, children are simply informed that their views cannot remain confidential. In Israel,439 though the matter of confidentiality was initially a concern when judicial interviews were introduced, the confidentiality of children’s views was ultimately guaranteed without a problem.440 In the Australian case l.j.a. v. l.a.,441 the parents agreed to confidentiality for the content of the judicial interview as this was what their 10 year old son wanted.442 It seems that where there’s a will there’s a way!

436 Hale, note 429. 437 Hale also notes that in Re N. (Child’s Objections) [2015] ewca Civ 1022, contrary to Re k.p. there were no criticisms of the meeting under similar circumstances. Ibid. 438 See for example Mabon v Mabon and others [2005] ewca Civ 632, para. 38. 439 Morag and Sorek, note 62, at 26–7. 440 Ibid. One interviewee in the research of Morag and Sorek (at 26–7) remarked: “We feared lawyers would complain about granting confidentiality to children, but it hasn’t happened. The idea of participation and the idea of confidentiality have both been accepted.” 441 [2002] b.c.j. No. 491 (b.c.c.a.). 442 In Rachel Birnbaum, Tamar Morag and Francine Cyr, “The Twists and Turns of Children’s Participation in Family Disputes: What a Tangled Web Professionals Weave” Paper presented at 6th World Congress on Family Law and Children’s Rights (Sydney, Mar. 2013).

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The crucial thing is that children are absolutely clear about whether or not their views will be kept confidential – this is a matter which arises repeatedly in the research. The experience of this girl evokes well the distress of a child when her guardian unexpectedly shared her (the child’s) views with her Dad: I sort of did say to her, “I wasn’t happy at all with the decision you made and everything that was said in that conversation that I thought was confidential” … because I thought “I told you that in confidence” … it’s sort of a bit confidence knocking because you build up all this confidence thinking, I’ve got it off my chest now, and then it sort of all goes … bangs the ground when it’s fallen down.443 As upsetting as such an experience must be for a child, this is not a problem derived from involving children in proceedings, this is an example of poor practice. One would expect all professionals – guardians and judges alike – to have the basic courtesy and common sense to be clear with children on whether their views will be shared with others or not. There are legitimate concerns about the risk of judicial meetings being upsetting for children, and the need for judges to be trained well. Although there is strong evidence that children wish to have judicial meetings, and that they are broadly a positive experience, in some jurisdictions judges do not receive training to ensure that that they are. In New Zealand, there is a sense that judges are satisfied that they are qualified to engage in these interviews without specific training, at least in part because most have in the past been children’s lawyers for many years.444 However in other jurisdictions this will not have been the case. Even in Spain, where judges regularly speak with children, it has been established that they are not well prepared for this.445 Children in Spain unfortunately report many instances of poor practice in judicial meetings, with interactions often leaving them angry and upset.446 In England and Wales, a 2014 appeal was upheld on the basis of the judicial interview being 443 Eleven year old girl with experience of family law proceedings, quoted in Douglas et al., note 6, at 69. 444 See Fernando, note 198, at 52. Fernando cites Tapp, at 58. 445 See Joan Guardia et al., “Child Court Hearings in Family Cases: Assessment Questionnaire of Child Needs During Pre-Trial Proceedings” 3 European Journal of Psychology Applied to Legal Context 47 (2011) which documents trialling of a specially prepared ‘questionnaire’ for judges to assist them in this regard. 446 European Union Fundamental Rights Agency, note 155.

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conducted in an erroneous manner.447 The case practically provides a lesson in how not to conduct the judicial interview: The child was taken to the judge after school without warning,448 probed, challenged, practically interrogated by the judge who asked 87 questions in the space of over an hour. The judge determined that the girl’s views were not ‘rational’ and decided against them. An appeal was upheld on the basis that the interview constituted a process of gathering evidence (and it should not have been treated as such) and that the meeting was seen as an opportunity for the girl to make submissions to the judge.449 However there is no reference in the appeal judgment to the most glaring problem with this meeting – it must have been a very unpleasant experience for the child. Decision-makers should receive support and training on working – and communicating – well with children, and those who still cannot do so should very obviously work in a different area of the law. In a pilot project in England and Wales feedback sheets have been provided to children after meeting with judges.450 Children themselves should at least have a strong say (if not the final say) about which judges work with them and which do not. It is also important that the judicial interview be treated as only a part of the process of hearing children. It has been suggested that the judicial meeting could become a cost-saving measure in times of ‘austerity’ – a replacement for the more thorough work of the guardian ad litem.451 This is a worrying suggestion for a number of reasons, not least because many children are reluctant to express their views with a professional until a relationship of trust has been formed. The intimidating court environment will prevent many children from speaking freely. Judicial meetings should therefore be seen as simply a part of the process of hearing children,452 and an option that some children will wish to take-up, and others will not. There should be many options for children to choose from, for example letter-writing to the judge can be a less stressful

447 Re k.p. (A Child) [2014] ewca 554. 448 The girl knew she would meet the judge at some point, but did not know it would be that day. 449 Re k.p. (A Child) [2014] ewca 554, Para. 56. 450 cafcass, Supporting Child Inclusivity in the Family Courts (Feb. 2015). Available at https:// www.cafcass.gov.uk/news/2015/february/kitys-column-supporting-child-inclusivity-in -the-family-courts.aspx. (last accessed 22 Apr. 2017). 451 See for example Rachel Langdale and James Robottom, “The Participation and Involvement of Children in Family Proceedings” Family Law Week (5 March 2012) and Hunter, at 286. 452 In Birnbaum, Morag and Cyr, note 442, at 45.

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alternative­in some cases. This is a method which is relatively common, for example in Scotland453 and England/Wales.454 Another concern is that children may be pressured into the interview. In a context such as Ohio, where the interview is framed as a right of a parent, this certainly seems possible. Presumably in the context of judicial interviews this problem could be circumvented by ensuring that children are told expressly, as part of the information-sharing process which they should enjoy in relation to their proceedings, that being heard is their right, as is refraining from being heard. Another concern is that the interview is seen as so common that whether it might be harmful to an individual child is given insufficient consideration. Although the echr held in Sahin that “it would be going too far” to say that the court was always obliged to hear directly from the child (in this case the child was five years),455 the matter is framed distinctly as the right of the parent, something which should be actively resisted in order to ensure that interviews are for the benefit of children, not parents. In conclusion, judges should accept that hearing children must be seen first and foremost as the right of the child, rather than a therapeutic, informationgathering, or even information-sharing exercise. In particular, there should be a movement away from the judge as the ultimate decision-maker on the matter of whether the judicial meeting takes place, as this appears to lead in most circumstances to the meeting being the exception rather than the rule. Children should always be offered the meeting, in fact it should be encouraged. It should be assumed, as it is in the Children’s Hearings system in Scotland, that where an adult is making life-changing decisions about the most intimate aspects of children’s lives, they should meet that child. Where children wish to engage in such a meeting, judges should only be permitted to refuse to meet them in the most compelling of circumstances – where significant harm would be likely to arise. Due Process Forgotten? Other Issues Concerning How Children are Heard As noted in Chapter 1, there are a whole host of due process issues which could be described as falling under a heading of a ‘right to be heard’ in best interest proceedings, including having the right to initiate proceedings, to be present at 3.3

453 Mckay states that out of 299 children in her study of children in family law proceedings involving domestic violence in Scotland, “42 children expressed their views directly to the court (in writing/own solicitor/spoke to sheriff).” Mckay, note 79, at 3. 454 See London Borough Tower of Hamlets v B. [2015] ewhc 2491. 455 Sahin v Germany [2003] 2 flr 671; Sommerfeld v Germany [2003] 2 fcr 619.

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hearings, and to have party status. Unfortunately they are frequently neglected as part of the right to be heard, and they are rarely perceived as rights due to children. 3.3.1 A Legal Person? Initiating Proceedings One crucial point is that, almost without exception, proceedings in which children’s ‘best interests’ are determined – child protection, family law and medical treatment – are initiated by adults. The legislation, case law, and literature analysing the right of children to be heard in best interest decisions, simply reflecting reality, assume that this is the case. In fact, this book is also guilty of operating on this assumption, primarily for reasons of scope (but also partly to focus on the need to highlight that ‘best interest proceedings’ are substitute decisions). Some work has been done considering the extent to which children have ‘access to justice’456 yet this is generally taken to refer to children taking complaints regarding violations of their rights, rather than cases concerning determination of their best interests such as those in family law. crin research indicates that all but five states (out of 197) permit cases to be taken in the child’s name, although in only four states can the child proceed without a guardian ad litem or ‘litigation friend’,457 which severely limits children’s access to justice. The typical case taken is perhaps in areas such as tort law, and they are usually instigated by parents, seeking to vindicate children’s rights where, for example, they have been harmed through medical negligence. But what about children initiating proceedings which specifically concern their own best interests, for example in the areas of family law or child protection? These are after all the most common cases concerning children; and they are initiated almost exclusively by adults. There are a myriad of issues which are important to children on which they could very legitimately wish to litigate, such as children in care seeking contact with siblings with whom they do not reside,458 or children in family law circumstances who seek a change of contact or residence arrangements.459 In theory in many jurisdictions children can access the courts either personally or through a representative such 456 See for example Child Rights International Network, Access to Justice for Children: Challenging Violations of Children’s Rights. Available at: https://www.crin.org/en/home/law/ access (last accessed 10 Oct. 2014). See also Sonja Grover, The Child’s Right to Legal Standing (LexisNexis, 2008). 457 Child Rights International Network, note 17, at 19. 458 Geraldine Morris, “Family: Children as Applicants” New Law Journal (13 Mar. 2009). Available at: http://www.newlawjournal.co.uk/nlj/content/family-children-applicants (last accessed 8 Aug. 2014). 459 Fortin, note 67, at 135.

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as a parent, but in reality they have significant difficulty doing so for practical reasons. Children are in the same position as all other citizens in that lack of knowledge, not to mention resources for legal representation, are prohibitive when it comes to initiating proceedings. However their difficulties are compounded by their status in society; for the most part lacking in the legal personality to take cases, and often relying on adults to take cases on their behalf. This is particularly problematic when those adults on whom they rely – ­parents, carers, state institutions – are frequently the individuals with whom children’s interests clash in the first place. It is therefore unsurprising that cases whereby children have taken the initiative to settle matters concerning their own best interests are very hard to come by. A legislative provision in England and Wales permits children to apply under the Children Act 1989 for permission to seek an order concerning their upbringing (a ‘Section 8’ order under the Children Act 1989).460 Yet there are few reported decisions involving children’s applications.461 There are many barriers for children – such applications must be considered at High Court level. Children may have to demonstrate that their wishes diverge from those of other parties in the case.462 It is not difficult to see why, when all of these obstacles are placed in front of children, they do not tend to bring such applications frequently. Fortin has described a “mixed judicial response”463 to such applications, and suggests that the perceived challenge to the traditional roles of parent and child is responsible for this.464 Where children legally challenge parents, it is obviously an undesirable and unpleasant scenario. Yet denying children access to court alone is unlikely to solve family conflict.465 If a child wishes to take such action, there is undoubtedly something very wrong already. This is to be seen for example in the few us cases whereby children have been permitted to file their own petitions against parents;466 cases such as Katherine b.t.,467 in which a 15 year old boy who was being severely beaten at home sought to protect himself under domestic violence legislation, and Kingsley v Kingsley468 in which an eleven year old boy 460 Section 10.8. 461 Morris, note 458. 462 Re H (Residence Order: Child’s Application for Leave) [2000] 1 flr 780. See Fortin at 136. 463 Fortin, note 67, at 135. 464 Ibid. 465 Ibid, at 136. 466 See Grover, note 456, at 3. 467 Katherine b.t. v Sally G. Jackson ( Judge of the Family Court of Jefferson County, West Virginia) and Richard B. 640 S.E.2d 569, 2006 w. Va. lexis 119 (W. Va. 2006). 468 623 So.2d 780 (1993).

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sought to terminate the rights of his birth mother (she had not contacted him for two years) when authorities sought to remove him from his beloved foster family to reunite birth mother and child.469 One case in Dublin encountered during the course of my research demonstrated the precarious position of children in care where they wish to bring legal action on a matter concerning their best interests. A boy of 11 years, G, was in institutional care with the consent of his mother.470 The local authority intended to send him to an institution outside of Dublin, and G opposed the move on the basis that he would be far from his family, with whom he had access visits on a regular basis. A children’s charity – the Irish Association of Young People in Care – put this matter to the court, instructing a legal representative for that purpose. During proceedings, there was much confusion about whether it was possible to appoint a guardian ad litem for a child already in care, where he had not been represented by a guardian ad litem during the original proceedings (because he was in care by consent).471 The local authority argued strongly against the appointment, but it was ultimately decided by the court during the proceedings that a guardian ad litem can be appointed by the court in whatever circumstances are deemed appropriate under the relevant legislation.472 A guardian ad litem was accordingly appointed for G. This outcome was ultimately positive, but the lack of clarity during proceedings over whether it was possible to appoint the guardian ad litem highlights how rare it is that a child is supported to raise such an issue in court. A similar situation arose in the South African case of Legal Aid Board v R.473 where a 12 year old girl called children’s charity Childline for assistance when she felt unheard in an acrimonious custody dispute. Childline subsequently contacted the Legal Aid Board to seek legal representation for her, and the court held that, despite her mother’s resistance she could be joined as a party in the dispute. These cases demonstrate the exceptional difficulties that children face accessing the courts, and the unusual steps which they sometimes have to take to ensure their wishes are heard. It is a basic right for children to be equal before the law, and to have the capacity to initiate proceedings concerning their living situations in the way that adults have the capacity to initiate proceedings about the upbringing of their children. Laws need to be drafted in a manner which takes into 469 470 471 472 473

The foster family subsequently adopted him. Dublin District Court 20, 2008. See Daly, note 102, at 324–5. Ibid. Section 26 of Ireland’s Child Care Act 1991. Legal Aid Board v R. 2009 (2) sa 262 (D).

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account­children’s­special position in order for children to have effective access to courts in practice. Yet in many states, such as in England and Wales, instead of facilitating children to take cases concerning their living situations, the courts have instead placed obstacles in their way. Interestingly, Tunisian law enshrines a provision to acknowledge that children may need to initiate proceedings themselves although with the proviso that the chid must be 13 years.474 The age limit is an unfortunate barrier for younger children – note the ages of the boys Kingsley and in the Dublin case, who would not have enjoyed access in this regard. It is also clear – particularly in the example from Dublin – that courts often have significant discretion to interpret laws in a child-friendly manner.475 There are often ways in which children’s legal standing can be upheld in existing legal systems, even where they those systems are inadequately constructed for that purpose. It is up to decision-makers to interpret the law in a way which is progressively children’s rights (and autonomy)-based. 3.3.2

Children’s Attendance at Proceedings: Out of Sight, Out of Mind The chairs are so big that you get lost and have to keep sitting up to be able to see over the top.476

In the ‘ideal’ Article 12(2) presented in Chapter 1,477 it is emphasised that children should be present at proceedings concerning them if they wish.478 To be present at proceedings concerning oneself is perhaps to be visible in proceedings in the most direct and meaningful way. Being at the table when decisions are made can be crucial for access to other rights – in Norway, children who attend care meetings are more likely to participate effectively in matters affecting them more generally.479 Hughes goes so far as to say: “The least powerful 474 Child Rights International Network, Access to Justice for Children: Challenging Violations of Children’s Rights – Tunisia. Available at: https://www.crin.org/en/home/law/access (last accessed 30 Oct. 2014), at 3. See Article 19 of Tunisia’s Code for Civil and Commercial Procedure and Article 154 of the Personal Status Code. 475 See Helen Stalford, Kathryn Hollingsworth and Stephen Gilmore, Children’s Rights Judgments: From Academic Vision to New Practice (Hart, forthcoming 2017). 476 Child quoted in Pike and Murphy, note 218, at 7. 477 Section 8.2. 478 Ideal crc Article 12(2)(c). 479 “The odds of a child participating increased by more than three times if they attended a meeting, and by many more times if they attended two or three.” Svein Arild Vis and Nigel Thomas, “Beyond Talking: Children’s Participation in Norwegian Care and Protection Cases” 12 European Journal of Social Work 155 (2009), at 164.

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person in these courtrooms is the absent one; taking away a youth’s presence is calculatingly taking away his or her right to due process of law.”480 Many children want to attend: In one study in England in which children represented in family proceedings were interviewed, 40% of children said that they would have liked the opportunity to attend.481 It can also be a positive experience: In a 2011 study in the us, children who attended their foster care hearing generally reported being glad that they had gone to court, felt comfortable answering the judge’s questions and were even more likely to view the judge as having made a fair decision.482 This shows that children’s attendance can be done well. The matter of whether children should in fact be encouraged to attend proceedings determining their best interests is contentious, however. 3.3.2.1 Fitting Children into Adult Proceedings The quote above highlights the fact that courts can be ill-suited to the attendance of children, who may find attendance intimidating and unpleasant, as well as boring and tedious.483 Yet it is the responsibility of adults to make children feel that proceedings are a place where they are important, welcome and safe. In Norway, a positive experience for children when attending their care meetings requires tailoring those meetings to their particular needs.484 Sadly, there is extensive evidence that, globally, such preparation for children’s attendance is not the norm, with children’s presence an incidental factor, rather than something which must be explicitly prepared for: I went to court but I didn’t go into court … I got taken to court but they said I wasn’t needed there in the end so I only just saw the barrister and I didn’t even say anything to him then I just went out.485 Hughes remarks that although children technically should be permitted to attend proceedings in the us, it is highly unusual in New York “Family Courts” (which deal with child protection cases), for example, to see a child at proceedings concerning them and that courts and procedure “are not set up to 480 Hughes, note 340, at 19. 481 Timms, Bailey and Thoburn, note 325, at 264. 482 See for example Vicky Weisz et al., “Children’s Participation in Foster Care Hearings” 35 Child Abuse and Neglect 267 (2011). Note the 2016 research which outlined, however, that there were many bad experiences of children in open court. European Union Fundamental Rights Agency, note 155, at 38. 483 Pike and Murphy, note 218, at 38. 484 Vis and Thomas, note 479, at 164. 485 Fourteen year old boy with experience of family law proceedings, quoted in Douglas et al., note 6, at 95.

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accommodate­the special needs of young people in the court.”486 Hughes’ description of practice in New York also represents practice in proceedings in most states whereby children may not explicitly be banned, but neither are they explicitly permitted to appear in court in their own child protection cases, and the accepted practice is to proceed in their absence.487 Sadder still, children around the world regularly report attendance at meetings and hearings as a negative experience. Many children report a strong ­dislike of attending meetings concerning their care, and in particular feeling ‘inferior’ to adults:488 “You’re so nervous. It feels like the whole world’s staring at you and you feel so inferior to them;”489 “You feel like a mouse in a mouse trap. They’re bigger than you, they’re adults basically and you’re just a child and they’re deciding your future.”;490 “You try and say something but you feel powerless because they don’t listen to you.”491 As noted above in the context of Scottish Children’s Hearings, where it is assumed that children will attend, children can be extremely intimidated by proceedings where they have not been informed and prepared. Overall, the research indicates that children feel that they are not getting the information that they need to understand the hearings process either before or after the hearing.492 This is really unfortunate – and unacceptable – considering the ease with which they accept attendance when having had the nature of hearings explained well to them beforehand.493 It seems, however, that most children find attending a hearing to be a difficult experience, during which they feel upset and frustrated. Children sometimes report feeling physically sick due to the nerves they experience before and during the hearing.494 Research

486 Hughes, note 340, at 4–5. 487 Ibid, at 18. 488 Alison McLeod, “Respect or Empowerment? Alternative Understandings of ‘Listening’ in Childcare Social Work” 30 Adoption and Fostering 43 (2006), at 45. 489 Fifteen year old girl quoted in McLeod, ibid, at 45. 490 Children’s Parliament, note 227; Children’s Hearings Scotland, note 205, at 13. 491 Ten year old boy cited in Creegan et al., note 212, at 36. 492 Children’s Hearings Scotland, note 205, at 8. See also Zoie Montgomery, Let’s All Make a Change for Children and Young People: A Young Person’s Review of Research on Children’s Views of the Children’s Hearings System (Scottish Children’s Reporter Administration, 2012), at 14. 493 Scottish Children’s Reporter Administration, note 209, at 33. 494 See for example Children’s Hearings Scotland, note 205, at 13 and Children’s Parliament, note 227.

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in 2011 found that the average score young people would give to their hearing experience was four out of 10.495 The research is consistent on the point that children find the complex language used at all stages of the hearing process to be a significant barrier to participating in that process.496 Both verbal and written language used by the various professionals is regularly described as problematic.497 This includes, of course, language used at the hearing itself. Only four out of 50 children interviewed in one study said that they had did not have difficulties understanding the language used.498 Children can feel confused and alienated by difficult or unfamiliar language used, which they describe as “big words” or “posh words”.499 As one 14 year old girl states, “the words they used were quite posh ’cos this was a posh man [the panel chair] that was doing it … so I didn’t really get what he said an’ everyone had to explain it to me after …”500 It probably does more harm than good to have a child at proceedings in which space, language and other aspects and surroundings are not well-tailored to the needs of children. In Ireland in one child care hearing I observed, a seventeen year old girl became upset and began to cry. It was noticeable that the judge had been speaking about her in the third person, as if she was not there.501 Perhaps ‘child-friendliness’ is something that cannot be taught to practitioners. But it is crucial that professionals are child-friendly, so that emotionally charged proceedings are not unnecessarily made even worse for children. There is, of course, a difference between the presence of a child capable of understanding proceedings and the presence of a very young child. In Scotland’s Children’s Hearings, where children are too young to understand proceedings, they simply play with the toys made available in the room. In my court observations in Ireland I noted an ad hoc approach to the presence of young children. They were sometimes brought to court by their parents, usually because of a lack of child care. Judges were generally opposed to parents bringing young children into the courtroom. Yet the presence of young children in court during the proceedings observed yielded interesting results. In one case, a crying baby alerted a judge to the fact that an unmarried father applying for guardianship (that is parental rights in respect of the child) had 495 496 497 498 499 500 501

Who Cares? Scotland, note 211, at 16. Children’s Hearings Scotland, note 205, at 9. Children’s Hearings Reform Team, note 205. Griffiths and Kandel, note 84, at 177. Scottish Children’s Reporter Administration, note 209, at 9. Children’s Hearings Scotland, note 205, at 9. Court outside Dublin, 6 Oct. 2008. See Daly, note 102, at 350–1.

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no relationship with his one and a half year old son. The mother, who had instigated the application, believing this needed to be done in order to secure the child a passport. The judge explained to the mother that this was not the case. He did not grant the father guardianship, but told him that if he paid maintenance regularly and took an interest in the child, then guardianship could be considered.502 Had the child not been in court and demonstrated the fact that he did not know his father, the judge may well have made the guardianship order which perhaps neither parent actually wanted. This child was well able to assert his wishes – he was not enjoying being held by this s­ tranger – and also well able to ‘be heard’, essentially informing the judge about this! Clearly it can be beneficial for a judge to witness family dynamics and meet children personally, even where those children are very young. It is difficult to imagine how such considerations could be facilitated in most courts as they currently function – certainly a dramatic change would be required. For children to have a positive experience of proceedings concerning them, much effort and resources must be expended to ensure that they are well-­ informed, that they are adequately supported by a knowledgeable adult during proceedings, and that those overseeing proceedings are well-trained in ensuring that children are facilitated to genuinely influence matters. As groundbreaking as the Scottish Children’s Hearing System is, it has a long way to go to adequately provide for children’s needs when they attend proceedings. It seems that, like many of the instances of children ‘being heard’ around the globe, in Scotland children are to a large extent simply expected to cope with the very adult world of official proceedings, rather than having proceedings tailored to their own needs. 3.3.2.2 Presence Denied: us Practice Young people themselves have advocated for change, for example those in the care system in New York drafted a report in 2007 highlighting the benefits to children from attending proceedings concerning them, and proposed changes to improve court experiences for adolescents.503 Academics, legislatures, and bar associations have also been taking a position on children appearing in court. American Bar Association standards maintain, for example, that “[i]n most circumstances, the child should be present at significant court 502 Court outside Dublin, 7 Jan. 2009. See Daly, note 102, at 349. 503 The Youth Justice Board of the New York Center for Court Innovation, Stand Up Stand Out. My Voice, My Life, My Future, Foster Youth Participation in Court: A National Survey (The Youth Justice Board of the New York Center for Court Innovation, 2006). Cited in Hughes, note 340, at 4.

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hearings”504 and that exclusion of the child from hearings should be justified by judges.505 In 2009 New York’s Monroe County introduced a pilot program requiring the consultation with children to include informal meetings with adolescents prior to their hearings, during which they are invited to join the court. Despite these positive developments, the norm is that children do not attend.506 The fact that children’s presence is quite unusual in the us may have come to bear on the outcome of the case of In Re a.g.507 In this 2014 case, the Supreme Court of Ohio upheld the exclusion from court of a 13 year old girl, ag, who wished to attend family law proceedings to determine the custody and visitation rights of her parents. The Supreme Court of Ohio rejected her claim that in doing so the trial court violated her due process rights. The court determined that the relevant code508 necessitated that a child about whom ‘custody’ proceedings are underway must be given the opportunity to be heard, but that this can be achieved in several different ways.509 ag had been represented by a guardian ad litem and heard by the judge and the court held that this was sufficient. The dissenting judges emphasised that the court had had no credible evidence that she should not attend, and did not consider whether ag was of sufficient “age and maturity” to attend proceedings, and that it was therefore an abuse of the discretion of the court not to permit her to attend.510 It appears that, not only is the right of children to be present at proceedings not put into practice in the us, where a child does wish to attend, she can be easily excluded. In Re a.g. indicates the power which a court has to interpret (or not) children’s due process rights in a way that upholds their autonomy. A similar case in England and Wales – In re K. (A Child)511 – had a more positive outcome for children’s rights to that in In Re a.g. The case concerned 13 year old K, who was the subject of a local authority application to keep her in secure accommodation – that is, a state institution in which her freedom would be limited ostensibly in her own interests. K felt strongly that she did not want to be in care, and wanted to attend the hearing. The local authority was opposed to 504 505 506 507 508 509 510 511

Cited in Hughes, ibid. Ibid, at 6. Ibid, at 18. In Re a.g., Slip Opinion No. 2014-Ohio-2597. A custody decree issued under r.c. 3109.04(A)(1). Paras. 71–76. Para. 89. Re K. (A Child) [2011] ewhc 1082.

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her attendance, citing welfare grounds. A circuit court judge referred this matter to the High Court, which ultimately decided that K should be permitted to attend her hearing, effectively removing a presumption against attendance established in the 1994 case of Re W. (Secure Accommodation Order: Attendance at Court).512 The High Court held that thinking had evolved in this matter since 1994, and although there should be no presumption of attendance, instead, the starting point should be an evaluation of whether attendance or non-attendance was preferable, considering the ‘welfare’ of the child and the ability of the court to “manage its proceedings fairly”. 3.3.2.3 Circumstances in which Children’s Presence is Desirable In the us the aba “Model Act Governing the Representation of Children in Abuse, Neglect, and Dependency Proceedings”513 emphasises the right of children to all hearings concerning them. In fact if a child wishes to be at a hearing but is not present, the Model Act requires that the hearing be postponed. The following factors are to be considered in order to determine how a child will participate: – – – – –

Whether the child wishes to attend; The child’s age and developmental ability; The child’s emotional maturity; The purpose of the hearing; Whether the child would be “severely traumatised” by attending.

The Model Act also gives guidance on how court attendance can be made meaningful for children, specifying that the child should be present for the entire duration of the hearing, the child could speak with the decision-maker in chambers, and should be excluded during “harmful testimony”.514 The High Court in England and Wales provided a list of factors in In re K. (A Child)515 to consider: The age and understanding of the child; the strength of children’s wishes to attend; the child’s emotional state; the effect of influence from others; the matters to be discussed at the hearing; the evidence to be given; the child’s behaviour; practical and logistical considerations. 512 Re W. (Secure Accommodation Order: Attendance at Court) [1994] 2 flr 1092. 513 aba House of Delegates “The Model Act Governing the Representation of Children in Abuse, Neglect, and Dependency Proceedings” (2011). See further Khoury, note 354, at 106. See Section 3.1.3 above. 514 Ibid., at 107. 515 Re K. (A Child) [2011] ewhc 1082.

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The first number of factors on this list appears very similar to that provided in the aba Model Act outlined above, and seem justifiable – for example ensuring very young children are not unduly upset by attending proceedings – but others are questionable, such as the matter of the influence of others. This is not a factor which would apply to adults and positioning it here as a potential obstacle to children’s attendance is unhelpful, considering it is a key due process right. There are some helpful aspects of this list; for example under the heading of “practical and logistical considerations” the court emphasises that modern technology such as video link could be engaged where there are challenges to bringing children long distances for proceedings. This indicates that the court is encouraging flexibility in facilitating children’s involvement in proceedings, something which is crucial for a child-friendly environment considering the particular needs which children sometimes have compared to those of adults. One important aspect of court attendance would be assistance and support from an independent adult where necessary. In Norway, children are offered in child protection proceedings the option of being present. Yet if they opt to be present, they cannot then have an advocate present.516 Children cannot therefore be present and have representation, limiting significantly their choices around how to be involved in proceedings concerning them.517 Given children’s relative vulnerabilities (particularly those in care), they should not be forced to attend alone. They should simultaneously reap the benefits of ­attendance – increased knowledge of the process, the opportunity of ­meeting the decision-maker, and so on – as well as the benefits of representation, including adult assistance and support in negotiating the complexities and difficulties of proceedings. Without support, inevitably few children will wish to attend proceedings at all, and the right needs to be effective in reality, not just in theory. In many states it appears that the lack of vindication of the right is not due to a failure in the law to provide for children’s presence, or even a complete lack of support for children’s attendance, but instead a primarily default position of non-attendance, accompanied by a lack of practical measures to ensure that this happens. There should be an assumption that children will attend proceedings. Whilst the aba Model is a positive start to determining instances when children should be permitted to attend proceedings as they currently

516 Svein Arild Vis and Sturla Fossum, “Representation of Children’s Views in Court Hearings about Custody and Parental Visitations: A Comparison Between What Children Wanted and What the Courts Ruled” 35 Children and Youth Services 2101 (2013), at 2106. 517 Ibid.

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run, what really needs to happen is an extensive rethink of proceedings, in order to modify them to ensure a positive experience for children.518 3.3.3 Party Status: Due Process for Children or Assistance for the Court? Neither crc Article 12 nor the Committee state explicitly that the crc requires that children have party status in proceedings affecting them.519 With party status comes many privileges – access to information, notice of proceedings, and so on. As outlined above, in the ‘ideal’ Article 12(2) presented in Chapter 1,520 it is emphasised that children must have both party status and legal representation in systems where this is needed for them to adequately participate.521 There is little information on which to build a picture of global practice when it comes to the extent to which children are joined as parties in best interest proceedings. There are some good practice examples. All children over 15 years in Nordic countries are regarded as parties to such proceedings and will receive legal aid.522 In Norway under-15s may also have party status “in special cases”.523 Although clearly preferable to excluding under-15s altogether, it renders party status the exception rather than the rule for under-15s, and links party status to age. In England and Wales, all children in child protection proceedings automatically have party status,524 which highlights that it is not just for older children. This demonstrates that it is insufficient to assume that only older children can ‘participate’ in proceedings. Children can successfully be made party to proceedings no matter what age they are, if they are adequately facilitated to do so. It is possible for the interests and non-verbal communication of infants and other non-verbal children with party status to be represented in the form of a report; and they can be more fully represented 518 See further Chapter 7. 519 It is outlined in General Comment No. 14 that children should have legal representation in proceedings concerning their best interests, and particularly if there is a potential conflict of interest with a party. Committee on the Rights of the Child, General Comment No. 14, note 291, para. 96. Although legal representation is not the same as party status, the two are closely linked. It would be difficult – if not impossible in many cases – for children to effectively participate as party to proceedings without a lawyer. For a case involving party status and representation of a very young child, see Canadian case l.e.g. v a.g. 2002 BCSC 1455 in which the judge took issue with the lawyer representing a three year old’s ‘wishes’ to return to a mother whose whereabouts were unknown. 520 Section 8.2. 521 Ideal crc Article 12(2)(c). 522 Koh Peters, note 8, at 105. 523 Children Welfare Act 1993, Section  6.3. It is also stipulated that: “In a case concerning measures for children with behavioural problems, the child shall always be regarded as a party.” 524 Section 41, Children Act 1989. Party status is not automatic, however, in private law cases.

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by a ‘best interest’ representative such as a guardian ad litem. Party status need not be dependent on the capacity to instruct a lawyer. Contrastingly in family law proceedings in England and Wales, as noted above in the context of children’s guardians, party status (and the guardian representation accompanying this) is only accorded in exceptional cases.525 The factors which should be considered by the court before appointment of a child as party in proceedings are set out in a practice direction on representation for children.526 A tone of limitation is immediately set in the section which deals with party status, as this should be done “only in cases which involve an issue of significant difficulty” and alternative routes must be considered.527 The courts have stated that a cafcass report is usually sufficient528 (though it is not clear in how many cases such a report is ordered);529 that “there are many contexts where effective participation requires neither party status nor even representation”530 and that just because a child is “older” (this is left undefined) and opposes a proposed course of action, this does not mean that they will necessarily be joined as parties.531 Therefore, unsurprisingly, the practice of rarely according party status has persisted. In O. (A Child) a father sought to have his nine year old daughter assessed for the purpose of whether she should be made party to proceedings.532 The court emphasised that for a child to have party status, a case would have to have more than an element of complexity.533 This, of course, implies a case will have to be significantly complex before children can be made party.534 One would expect that older children would be more likely to have party status, yet research in 2006 established that 30% of children made party to proceedings were aged ten or over, with nearly half aged five to ten years.535 This points to the fact that appointment of party status, which is accompanied by guardian ad litem assistance – is in large part to assist the court rather than to represent 525 See note 308 above. 526 Ministry for Justice, Practice Direction 16A – Family Proceedings: Representation of Children. Supplementing Family Procedure Rules 2010, Part 16. 527 Ibid., Section 7.1. 528 Ciccone v Ritchie (No 1) [2016] ewhc 608, para. 38. 529 As noted above at note 256 cafcass figures do not appear to make clear the number of “Section 7” reports prepared in family law cases. 530 Cambra v Jones [2014] ewhc 913, para. 18. 531 Ciccone v Ritchie (No 1) [2016] ewhc 608, para. 38. 532 O. (A Child) [2012] ewca Civ 1576. 533 Ibid. 534 Ibid. 535 Douglas and Murch, note 184, paras 2.49–2.50.

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the child; a point which was raised in research into the experiences of families with experience of a child with party status.536 In fact, Douglas et al. found that, in a third of the cases examined, party status was accorded where a parent disagreed with the cafcass professional’s assessment of the child’s best interests.537 The sense that party status is primarily not for the purpose of upholding the child’s right to be heard is further highlighted by the fact that provision of party status to children is not necessarily the same thing as having their wishes advocated, as guardians will usually instruct the legal representative. There is a lack of clarity as to when children may instruct themselves. In Mabon538 the teenage boys were permitted to do this (on appeal), yet in Re N. an 11 year old tried to remove his guardian was not permitted to, on the basis that he would not be able to “cope”.539 The troubling conclusion that can be drawn is that, far from being a vindication of the right to be heard, party status is usually a facility to assist the court in difficult cases. Common resistance to party status for children is that it can involve children inappropriately in proceedings. Yet as noted above, in difficult cases the court is willing to give this status to children, and in child protection they almost always have this status, so this claim just does not ring true. There may be a fear that it undermines parents to give children equal standing to them, yet Douglas et al. found that, of families with experience of this, 72% of parents interviewed were in favour of their children having this status, whether or not they felt it was in their own interests.540 It is very likely that the real issue is that party status for children, and the legal representation that it will almost inevitably require, is very expensive. Party status for children should be seen less as assistance for the courts in difficult cases, and more as a way for children to assert their status as the most important individuals in proceedings; proceedings which are supposed to be resolved on the basis of what is in their best interests. 3.3.4 Testifying in Best Interest Proceedings: Not Seen as a Right The Committee emphasises the importance of the wishes of children in relation to the means by which they are heard,541 but has also expressed the 536 Douglas et al., note 6, at 136. 537 Ibid, at 7. 538 Mabon v Mabon and others [2005] ewca Civ 634. 539 Re N. (Contact: Minor Seeking Leave to Defend and Removal of Guardian) [2003] 1 flr 652. 540 Douglas et al., note 6, at 136. The sample of parents was small however – 23. 541 Committee on the Rights of the Child, General Comment No. 12, note 2, para. 35.

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opinion­that children should preferably not be heard in open court.542 Some children may wish to have this option, however. This scenario arose in 2013 in a child protection case in England and Wales. In the case of P.–S. (Children)543 a 15 year old boy, M, appealed the decision of the trial judge not to permit him to testify in proceedings in which it was decided that he would remain in care rather than return to live with his mother. The boy had been appointed a guardian and legal representation, and he expressed through these channels a strong desire to be reunited with his mother. However he also wished to provide oral evidence to the court by video link, as he explained, “so that the strength of my feelings can be made clear to everyone.” The trial judge ultimately held that there was sufficient evidence before her about the boy’s wishes and feelings without his testimony, and that it would be damaging for M to testify because the mother would engage in an emotional outburst in court; something which she had done previously.544 The judgment of the Court of Appeal was striking in that consideration of the relevant provisions within domestic law was accompanied by a detailed analysis of the requirements of crc Article 12. As part of this, consideration was given to General Comment No. 12 (referred to as “guidance” in the quote below). The conclusion was reached in the judgment that under the crc a child does have a right to be heard in proceedings, but that this does not involve a right to give evidence: … [T]he right to be heard does not specify how the child is to be heard for the Convention expressly recognises that the voice of the child may be conveyed “either directly, or through a representative or appropriate body”. Indeed the guidance at [43] prefers the child being heard under conditions of confidentiality, not in open court. It may be enough that a social worker, that is the cafcass officer or guardian hears the views of the child and it does not seem essential that it has to be the judge who hears directly from the child. So, whilst the child must be listened to, there is nothing in the Convention which entitles the child to give evidence to the judge. In my judgment a child has no right to give evidence.545

542 543 544 545

Ibid, para. 41. P.–S. (Children) [2013] ewca Civ 223. Ibid, para. 13. Ibid, para. 36.

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The court rightly notes the broad variety of ways in which children may be heard, yet pays virtually no attention to the importance placed in the General Comment on children having the choice as to how to be heard.546 The judgment could have placed much greater emphasis on the best interest considerations at issue in the case – although it was determined to be contrary to M’s interests to be heard in the way in which he wished, how harmful would the worst case scenario actually be? How upset would M be likely to feel? Was the risk of harm from testifying worth the risk of harm from the overriding of autonomy? Was there a compromise option, such as providing video testimony in advance (that is, not live)? It was clear in this case that this was a vulnerable young person who had been badly neglected by an emotionally volatile and insensitive mother. According to the judge, she was likely to have an outburst during the boy’s testimony and he would be upset.547 Yet the level of potential harm simply does not seem very high – this was a 15 year old boy, after all, who had already had much knowledge and experience of his mother’s failings. Although the boy had been heard in other ways, his strength of feeling about testifying during proceedings was enormously clear.548 As impressive, and rare, as it is to see General Comment No. 12 explicitly considered in an English court, this case is notable for the ease with which the judge could override this boy’s wishes, and therefore his autonomy, in proceedings. The vagueness of Article 12; the lack of emphasis on due process rights in Article 12; the scope for courts to interpret the ‘right to be heard’ narrowly – this comes through in this case perhaps more clearly than any other. It is very, very easy to override children’s choices about their involvement in proceedings when all that must be satisfied is ‘right to be heard’ – a right that essentially can, in many circumstances, mean anything that adults decide that it means.

Concluding Thoughts on the Process of the Right to be Heard

The shortcomings of implementation of the right to be heard, as demonstrated in this chapter, are many and varied. These shortcomings are inevitable where 546 The court cited paragraph 35 of the General Comment, “[a]fter the child has decided to be heard, he or she will have to decide how to be heard …” 547 See P.–S. (Children) [2013] ewca Civ 223, para. 13. 548 The difficulties associated with the issue of children giving evidence continues in the uk – though in Re W. (Children)(Family Proceedings: Evidence) [2010] uksc 12 the Supreme Court held that there is no presumption in family law proceedings against children giving evidence, in Re E. [2016] ewca Civ 473 it was noted in the Court of Appeal that the Re W. advice seems to have failed to change practice, as there still appears to be a presumption within the culture of family courts against children giving evidence.

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there is a failure to understand what best interest proceedings really are – they involve decisions which are being taken on children’s behalf because they are children. There is a clear lack of focus on the need to facilitate children as individuals with dignity as full participants in these proceedings, in which matters of enormous importance in their lives are being decided. The focus instead is primarily on fitting children into adult agendas and adult proceedings. There is an enormous tendency not to see hearing children as a right. ­Either it is only a possibility in very specific circumstances (such as the most difficult of family law proceedings); if adults agree to it (note the enormous discretion of judges as to whether and how to hear children) and/or where resources are deemed available. In fact, there are indications that there has been a rollingback of services aimed at facilitating children’s involvement in proceedings in recent years as demonstrated in England and Wales by R. (R. and Others (Minors)) v cafcass,549 the dramatic limiting of family law cases in New Zealand in which children will be represented;550 and evidence in Israel that judges over time apparently have decided only to hear children in more difficult cases.551 Crucially, where children are heard, the emphasis is firmly on their best interests rather than their wishes. This is perhaps visible in the fact that, in a study in England examining experiences of children with guardian representation, a very positive 74% reported feeling that they had ‘had a say’; only 55% felt it had made a difference.552 It seems that children often do not believe their wishes are being understood or advocated. Of course children are generally more vulnerable than adults and there should be some protections built-in to processes so that potential harm could be brought to the attention of the decision-maker in some way. This is a positive element of the guardian ad litem model. Yet the ostensible need to protect is emphasised disproportionately within the ‘best interest representative’ framework. There are usually many other ways of flagging risks to children, such as communicating via social workers and parents, rather than via a ‘right to be heard’. This right should not be co-opted; seen as a back door; for the ‘protection’ of children. This distracts from what the right should really be about – taking children seriously as autonomous actors. The Massachusetts model, where lawyers can take action only where there is diminished capacity and likely “substantial harm”,553 upholds children’s interests and autonomy to a high degree. It is this level of restriction which should apply 549 550 551 552 553

R. (R. and Others (Minors)) v cafcass [2012] ewca Civ 853. Care of Children Amendment Act (No 2) 2013. See Section 3.1.3 above. Morag and Sorek, note 62, at 22. Timms, Bailey and Thoburn, note 325, at 264. In accordance with the aba Model Act Governing the Representation of Children in Abuse, Neglect, and Dependency Proceedings 2011.

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where adults seek to ‘protect’ children. Adults should have to ask, ‘is this truly an instance where undermining their autonomy is necessary?’ It is also clear that ‘hearing’ children is distracting greatly from the crucial due process issues of legal standing, party status and attendance at proceedings. ‘Hearing’ children can more easily be done somewhere else, outside the court, where professionals such as judges are less likely to have to engage with it. Children are not encouraged to attend proceedings. Therefore systems can comfortably remain as they are, without facing the problems which are preventing children from taking their own actions; attending hearings; from being involved in a way which suits them. There is a lack of will to ensure that children can meet these mysterious professionals deciding matters such as where children will live and with whom they will have contact – legal matters of the utmost seriousness. It seems that only Scotland has made significant efforts to physically include children in proceedings (though not in family law), and, as admirable as these attempts have been, children’s own reports demonstrate that making proceedings truly child-friendly will take more than the arrangements in place in that jurisdiction. It will take information-sharing methods which work, proper support structures for children, highly trained professionals, and proceedings which operate to the pace of children rather than that of adults. The involvement of children in proceedings is inevitably likely to involve discomfort and upset, as stranger professionals become involved in family disputes. Yet adequate steps must be taken to ensure that proceedings are not made unnecessarily difficult by systems and practices which are not child-friendly. Therefore it is somewhat unsurprising that the nature of children’s proceedings have largely remained the same as before crc Article 12 came into force. There has, for the most part, not been sweeping child-friendly changes in terms of children’s voices being heard, in terms of the presence of children at proceedings, or in terms of children taking cases of their own. There have undoubtedly been modest changes here and there – in Norway the move ­towards attempting to hear under-sevens, for example; and the due process ­affirmations in cases like Mabon554 and Ciccone555 which acknowledge that children’s involvement in proceedings should be considered important. The truth is, however, that the discretion associated with the term ‘being heard’ is very broad – adults are firmly in charge of whether and how children are involved. Where it is inconvenient to ‘hear’ them (as it almost always is), children are most frequently on the sidelines of proceedings, or more likely n ­ owhere near the playing pitch whatsoever. This is why a new focus is needed, one which prioritises children’s autonomy. 554 Mabon v Mabon and others [2005] ewca Civ 634. 555 Ciccone v Ritchie (No 1) [2016] ewhc 608.

chapter 5

‘Weighing’ Views: The Right to be Heard Does Not Allow Children to Sufficiently Influence Outcomes The worry of what the court decision would be really … that was all that bothered me. Nobody particularly bothered me like Mrs. C or Mrs. F or any of the court welfare officers … none of them bothered me, just their decision, what happened in the end, that’s all.1

∵ Introduction There is little point hearing children if their wishes are unlikely to make any difference to outcomes. In Chapter 3 it is emphasised that the autonomy ­ideal – that we should have personal freedom in our lives to the extent possible – is valued over all others in liberal democracies. It is also demonstrated that this ­ideal has a sound ­justification, as a feeling of control is crucial to our ­well-being. This should be understood to apply in best interest proceedings as it does in other areas of children’s lives.2 So what has the right to be heard achieved for children in terms of influence on outcomes? crc Article 12 focuses on “due weight” for children’s views, implying that there should be some influence on decision-making when children are heard in proceedings about their best interests. But what does this term “due weight” mean? Has it influenced the language of courts at domestic level? How can courts demonstrate ‘weight’, particularly in cases where yes or no answers are 1 Eleven year old boy with experience of family law proceedings, quoted in Gillian Douglas et al., Research into the Operation of Rule 9.5 of the Family Proceedings Rules, 1991 (Department for Constitutional Affairs, 2006), at 56. 2 Kaltenborn’s research into long-term outcomes for contact and residence indicates that, in family law at least, an outcome in line with the child’s wishes is generally one in line with the child’s welfare. Karl-Franz Kaltenborn, “Children’s and Young People’s Experiences in Various Residential Arrangements: A Longitudinal Study to Evaluate Criteria for Custody and Residence Decision Making” 31 British Journal of Social Work 81 (2001), at 110. Kaltenborn’s research led him to advocate that: “The residence arrangement, however reached … should correspond with the child’s actual relationship preference and residence wishes.” © koninklijke brill nv, leiden, ���� | doi 10.1163/9789004355828_007

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sought; and it is therefore difficult to prove ‘weight’ was attributed where children’s wishes were overridden? Many authors have highlighted the problem with the ‘weight’ element of ­Article 12 when it comes to best interest decisions concerning children.3 It is particularly long-acknowledged that in medical law cases where children ­refuse to consent to (often lifesaving) medical treatment the courts take ­paternalistic, vague, and often contradictory approaches to how to weigh children’s wishes, even if the term ‘weight’ is not commonly used.4 In this chapter, the case law and research around best interest decisions more generally is examined in order to determine whether these suspicions are borne out on a broader scale, examining research and case law from across various jurisdictions. It appears that the right to be heard has brought some positive change in terms of children simply feeling heard. It is not all about outcomes – the ­perception of being listened to, of being taken seriously, is undoubtedly good for children: I think the judge kind of listened to me in the end.5 There is evidence that the right to be heard has encouraged an attitude shift when it comes to hearing

3 See for example Priscilla Alderson, “Giving Children’s Views ‘Due Weight’ in Medical Law” International Journal of Children’s Rights (forthcoming 2017); Kay Tisdall, “Challenging ­Competency and Capacity? Due Regard to Children’s Views in Family Law Proceedings” ­International Journal of Children’s Rights (forthcoming 2017); Matias Cordero Arce, “Maturing Children’s Rights Theory: From Children, With Children, Of Children” 23 International Journal of Children’s Rights 283 (2015); David Archard and Marit Skivenes, “Balancing a Child’s Best Interests and a Child’s Views” 17 International Journal of Children’s Rights 1 (2009); Kay Tisdall and Fiona Morrison, “Children’s Participation in Court Proceedings when Parents Divorce or Separate: Legal Constructions and Lived Experiences” 14 Law and Childhood Studies: Current Legal Issues 156 (2012). 4 See for example Emma Cave, “Goodbye Gillick? Identifying and Resolving Problems with the Concept of Child Competence” 34 Legal Studies 103 (2014) and Robin Mackenzie and John Watts, “Is Childhood a Disability? Using Mental Capacity Tribunals and the Deprivation of Liberty Safeguards to Shield Children’s Capacity to Consent to and Refuse Medical Treatment” 19 Tizard Learning Disability Review 96 (2014); Michael Freeman, “Rethinking Gillick” 13 International Journal of Children’s Rights 201 (2005); Michael Freeman, “Why It Remains Important to Take Children’s Rights Seriously”15 International Journal of Children’s Rights 5 (2007); Michael Freeman, “Review Essay: What’s Right with Rights for Children” 2 International Journal of Law in Context 89 (2006). See also Andrew Bainham, “The Judge and the Competent Minor” (1992) 108 Law Quarterly Review 194, at 200 and Nicholas Lennings, “Forward, Gillick: Are Competent Children Autonomous Medical Decision Makers? New Developments in Australia” 2 Journal of Law and the Biosciences 457 (2015). 5 Eleven year old girl with experience of family law proceedings, quoted in Douglas et al., note 1, at 109.

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children and valuing their views – there is a sense that children should be heard, at least in some circumstances.6 That said, a ‘right to be heard’ seems meaningless without a possibility that it will make a difference to outcomes; as opposed to just existing for some vague purpose of making children feel better about the process. This risks reducing it to a public relations exercise for the courts.7 It was highlighted at the start of this book that there are major problems with the concept of giving “due weight” to children’s views and wishes. Who is to decide what weight is ‘due’ and how is this to be measured? For adults, our autonomy is prized above all else. We cannot always get what we want, of course, but we are recognised as having the right to choices to the extent possible, free from the undue interference of others, particularly from physical or legal coercion. The notion of “due weight” is inherently weak because it does not on the face of it go any distance towards ensuring safeguards for the autonomy of children who are being denied the right to decide for themselves when best interest decisions are made. Because of the problems anticipated with the right to be heard, in particular the notion of “due weight”, it is argued in this book that respect for autonomy should be the principle adopted in children’s involvement in best ­interest ­proceedings. In Chapter 1, an ‘ideal’ Article 12(2) is presented in which it is e­ mphasised that, in best interest proceedings “[c]hildren should get to choose – if they wish – … the outcome (outcome autonomy) unless it is likely that significant harm will arise from their preferences.”8 Judges should essentially choose the outcome for children which avoids paternalism to the extent p­ ossible, in order to acknowledge a number of factors: That children are e­ xperts on their own lives; that forcing children into arrangements against their wishes is inherently harmful; and that children should only be treated differently from adults to the extent necessary.9 So, are these concerns about the “due weight” concept – and the suggestion that autonomy is a preferable concept – borne out in practice? In this ­chapter the need for such an approach is made clear. Analysis will be provided of how the courts are approaching the matter of how to treat children’s wishes in best interest decisions. It will be highlighted that many children are left feeling that being heard has made little, if any, difference. The matter of 6 See for example D. (A Child) (International Recognition) [2016] ewca Civ 12 considered Chapter 4, Section 1.3. in which the court held that it was contrary to public policy not to hear a child in proceedings concerning them. 7 Brenda Hale, “Are We Nearly There Yet?” Paper presented at the Association of Lawyers for Children Annual Conference 2015 (Manchester, 20 Nov. 2015). 8 Section 8.2. 9 See further Chapter 6.

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whether we have methodologies for approaching children’s views and wishes in a way that is consistent and transparent will be examined. The terminology used by courts will be considered in detail, as the language relied upon gives us ­insight into the rationale on which the courts are basing their treatment of children’s w ­ ishes. The difference of treatment of the views of older and ­younger ­children’s wishes will be examined. The findings point to inconsistent, confusing and illogical approaches by the courts to children’s wishes, and the reasons for this are considered. Courts refuse to accept that there is a limited ability to ensure a ‘good’ outcome. This is to the detriment of a good process, one which prioritises children’s wishes. Courts also think that they are acting as benevolent parents when they impose best interest determinations, which is misguided as courts are representatives of the state (and therefore have the threat of force behind them). It is also mistaken because families do not always operate in a ‘parents say, children do’ manner anyway – there is much more negotiation and give and take (and ‘voting with feet’). It is argued that the right to be heard, and its lack of influence for children in reality, in fact works to uphold traditional power dynamics. The state wins because children’s wishes can be overridden when they incline against state authorities, or prevailing beliefs such as ‘contact at all costs.’ Non-resident parents (usually, though not always, men) win because of the contact presumption, which undermines not just children resisting contact but also the primary carer (usually women). Violent men also often triumph, as often not even children’s own wishes (nor their fears) prevent abusers from using the courts to further campaigns of control over children and former partners. It seems that children’s wishes within the ‘right to be heard’ framework are least effective where they are needed the most – where those wishes incline against adults, and particularly where they incline against the status quo. The question of whether a focus on autonomy would shift this influence gap will be posed. 1

The Right to be Heard is Not Making a Sufficient Difference

1.1

Children are Often Dissatisfied with Outcomes They still didn’t listen and I started to go down there [to mum’s] ’cos I had to in the end.10

10

Fourteen year old boy with experience of family law proceedings, quoted in Douglas et al., note 1, at 96.

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Research indicates that many children know the difference between being heard on the one hand, and achieving their desired outcome on the other.11 As outlined in Chapter 3, although most children simply want to be involved in the decision-making ­process, some are quite clear on the outcome that they want. U ­ nsurprisingly, children in Scottish Children’s Hearings, for example, feel that a ‘positive’ o­ utcome is when the decision made reflects their wishes.12 Yet even where children are heard in the context of best interest proceedings, they consistently feel that the process of being heard has yielded little in the way of impact on outcomes. In a study in England examining experiences of children with guardian representation, only 55% felt it had made a difference.13 In New Zealand mediation research only six of 16 children who had been heard (seven had not) felt that they had much influence.14 There are ­similarly other studies from around the world which indicate that large proportions of children feel that there has been little point in being heard.15 It is unsurprising then that children can feel that being heard is tokenistic:

11

12 13

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15

See for example Robyn Fitzgerald and Anne Graham, “‘Something Amazing I Guess’: Children’s Views on Having a Say About Supervised Contact” 64 Australian Social Work 487 (2011). Children’s Hearings Scotland, Children and Young People’s Views and Experiences of Children’s Hearings – A Summary (Children’s Hearings Scotland, 2014), at 15. Judith Timms, Sue Bailey and June Thoburn, “Children’s Views of Decisions Made by the Court: Policy and Practice Issues arising from the Your Shout Too! Survey” (2008) 14 Child Care in Practice 257, at 264. Older research similarly points to children in England feeling that they had not benefitted from their involvement – Bren Neale and Carol Smart, Agents or Dependants? Struggling to Listen to Children in Family Law and Family Research (Centre for Research on Family, Kinship and Childhood: Working Paper No. 1, 1998). See also Alan Campbell, “The Right to be Heard: Australian Children’s Views about Their Involvement in Decision-Making Following Parental Separation” 14 Child Care in Practice 237 (2008). Sally Holland and Sean O’Neill, “‘We Had to Be There to Make Sure it Was What We Wanted’: Enabling Children’s Participation in Family Decision-making Through the Family Group Conference” 13 Childhood 91 (2006). In Israel, though the vast majority were happy to be invited to be heard, 38% of children responded that participation had not helped, most frequently because they believed that their input had not influenced judicial decision-making in the way they had wished it to. Tamar Morag, Dori Rivkin and Yoa Sorek, “Child Participation in the Family Courts: Lessons from the Israeli Governmental Pilot Project” 26 International Journal of Law, Policy and the Family 1 (2012), at 15. In a study of family law cases in Scotland, for 30% of children the contact outcome was contrary to children’s wishes, in spite of the fact that all cases involved domestic violence (and all children were opposed to contact). Kirsteen Mckay, Hearing Children in Court: Disputes Between Parents (Centre for Research on Families and Relationships: Briefing 65, Jan. 2013), at 4.

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But I think the outcome really – it wouldn’t have mattered much what we said, I think the outcome was pretty well set by the time we got there … it was out of our hands.16 Research indicates that some (usually older) child aim to defy decisions they are unhappy with by ‘voting with their feet’,17 which perhaps explains why r­esearch often establishes that older children are more likely to be satisfied with arrangements than younger children.18 In Australia, in about half the families interviewed (with experience of family law proceedings) in one study, both parents and children reported that children had taken matters into their own hands, using their own influence to secure changes to either residence or contact arrangements. Changes in residence resulted, for example, from children disclosing violence to the courts (which then led to change), or from children ‘running away’.19 Kaltenborn’s research likewise found that some children adjust to an outcome out of line with their wishes by taking control of their situation, changing it through their own force of will.20 This is consistent with research on children’s views of autonomy in the family law context, where children appear to sometimes want a determinative say in the most difficult of cases, particularly where they are refusing contact with a particular parent, or resisting an order to live with that parent.21 In care proceedings, it seems children feel even more despondent. Many children in care interviewed in a uk study reported feeling like their views made little difference:22 I can say what I like but I’m wasting my breath. No one takes any notice.23 In Scotland, Children’s Hearings panels often make d­ ecisions 16

17 18 19

20 21

22 23

Yvonne Darlington, “Experiences of Custody Evaluation: Perspectives of Young Adults Who Were the Subject of Family Court Proceedings as Children” 3 Journal of Child Custody 51 (2006), at 59. This was an Australian study in which young adults who experienced family law proceedings as children were interviewed, many felt that ‘being heard’ had ultimately been an exercise of tokenism, and that they had not influenced the outcome. This quote is from an adult, age 26 at the time of interview, aged 13 during proceedings. See for example Re M. (Children) [2016] ewca Civ 1059 and W. (A Child) [2016] ewca Civ 105. See for example Timms, Bailey and Thoburn, note 13, at 269. Judy Cashmore, “Children’s Participation in Family Law Decision-Making: Theoretical Approaches to Understanding Children’s Views” 33 Child Inclusive Research, Policy and Practice, Children and Youth Services Review 515 (2011), at 516. Kaltenborn, note 2. This is to be seen, for example in the strength of feeling of the children interviewed by Douglas et al. – these children had party status and separate representation in their cases, which is unusual in family law and occurs only the most entrenched cases as outlined in Chapter 4. Douglas et al., note 1. Alison McLeod, “Respect or Empowerment? Alternative Understandings of ‘Listening’ in Childcare Social Work” 30 Adoption and Fostering 43 (2006), at 45. Sixteen year old boy quoted in McLeod, ibid, at 45.

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which are against the wishes of the children involved.24 Although children do appreciate that these hearings make a positive difference in their lives, as outlined in Chapter 4, some children feel frustrated at not being i­nfluential. A 15 year old girl stated, for example, that: like, if the decision’s not what I wanted then I feel like they haven’t really listened to me…25 Similar to the ­situation in family law, it seems younger children in care are also less happy with arrangements. In one study in which children aged four to seven years were interviewed, a prominent theme was that they did not feel listened to.26 Children are not imagining it – they are frequently in disagreement with adults, and certainly in child protection cases. Research in England identified a notable degree of conflict between children’s wishes and adults’ ‘best interest’ determinations – 22% of children had significant disagreements with their ­social worker, for example – and these conflicts were not always easy to resolve.27 These instances almost always related to a disagreement between child and social worker about a child’s wish to return to live with their family, a wish deemed by the social worker to be contrary to the child’s interests.28 ­Research concerning children’s views in child protection proceedings (referred to as “welfare boards”) in Norway29 established that judgments were in line with children’s wishes only in 39% of cases30 and where they did correlate, it was most likely to be where the child agreed with professionals about remaining in care, concluding: “[w]hat children want appears to have a minor ­impact upon the actual rulings in many cases.”31 Research from Norway,32 Israel33 24 25 26 27 28 29

30 31 32

33

Scottish Children’s Reporter Administration, The Children’s Hearings System: Understood and Making a Difference (Scottish Children’s Reporter Administration, 2011). Ibid. Karen Winter, “The Perspectives of Young Children in Care about Their Circumstances and Implications for Social Work Practice” 15 Child and Family Social Work 186 (2010). Nigel Thomas and Claire O’Kane, “When Children’s Wishes and Feelings Clash with Their ‘Best Interests’” 6 The International Journal of Children’s Rights 137 (1998), at 141–2. Ibid, at 143. Svein Arild Vis and Sturla Fossum, “Representation of Children’s Views in Court Hearings about Custody and Parental Visitations: A Comparison Between what Children Wanted and What the Courts Ruled” 35 Children and Youth Services 2101 (2013). Ibid, at 2106. Ibid, at 2107. In Norway, it was found that, for children in care, speaking with social workers was not correlated with influencing decision-making. Svein Arild Vis and Nigel Thomas, “Beyond Talking: Children’s Participation in Norwegian Care and Protection Cases” 12 European Journal of Social Work 155 (2009), at 155. Similarly, in an examination of child protection decisions in Israel, it was found that “removal and reunification recommendations were not associated with the child’s nor the

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and the Netherlands34 also indicates that, in fact, it is the subjective views of ­decision-makers that are the main determinant of the basis for the decision in child protection, rather than the wishes of the child, indicating that what the child expresses as their wishes makes little, if any difference. In spite of evidence to the contrary, professionals tend to report that hearing children has an impressive impact on their decision-making. Case managers in a Norway study of the participation of children in care reported that children’s participation affected the outcome of decision-making in 21 of 43 cases (48.8%)35 Judges in states in which the judicial meeting is common report finding them very useful.36 In Israel, for example, judges report that the meeting with the child contributes “a great degree” to their decision in around half of cases.37 It seems highly likely, however, that adults may believe children’s participation or wishes influenced their decisions, whereas in fact children’s wishes simply happened to accord with adult ‘best interest’ determinations. As Herring (tentatively) points-out, judges seem to place great weight on children’s views when they match with the judges’ own.38 At the end of the day, many decision-makers simply do not believe that children understand

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mother’s wishes” but instead with the child protection workers’ own pro- or anti-removal tendencies. Bilhah Arad-Davidzona and Rami Benbenishty, “The Role of Workers’ Attitudes and Parent and Child Wishes in Child Protection Workers’ Assessments and Recommendation Regarding Removal and Reunification” 30 Children and Youth Services Review 107 (2008). Research has established that there is a correlation between a child’s wishes and the outcome in child protection in the Netherlands, but it is very small, and again very much depends on the individual practitioner. Floor Minkhorst, “Decision Making in Dutch Child Welfare: Child’s Wishes about Reunification after Out-of-Home Placement” 46 British Journal of Social Work 169 (2016), at 170. Vis and Thomas, note 32, at 160. Nine out of ten family law judges interviewed in Germany felt that the hearings with children were ‘very’ or ‘fairly’ meaningful’. Michael Karle and Sandra Gathmann, “The State of the Art of Child Hearings in Germany. Results of a Nationwide Representative Study in German Courts” 54 Family Court Review 167 (2016), at 172. 75% of judges interviewed in Michigan in the us felt the same. Jacqueline Clarke, “Do I Have a Voice? An Empirical Analysis of Children’s Voices in Michigan Custody Litigation” 47 Family Law Quarterly 457 (2013). See Morag, Rivkin and Sorek, note 15, at 15, and Tamar Morag and Yoa Sorek, “Children’s Participation in Israeli Family Courts – An Account of an Ongoing Learning Process” in Benadetta Faedi-Duramy and Tali Gal, eds, International Perspectives and Empirical Findings on Child Participation: From Social Exclusion to Child-Inclusive Policies (Oxford University Press, 2015), at 33. Herring opines: “I have a sneaking suspicion that if the judges agree with the children, they attach much weight to their views, but if they do not, they attach little weight. But

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the long-term issues at play in best interest decisions. Research with decisionmakers (judges and social workers) in Quebec, for example, highlights the resistance to upholding preferences even of adolescents:39 [T]eenagers still need to be supervised, they are impulsive and find it hard to project themselves into the future. The idea that they can decide from the age of 12 or 14 who they are going to live with appears to be widespread, whereas in fact the sole criterion remains their best interests. I don’t think that a child of 12, 10 or even 16 really has the capacity to determine what is in his or her best interests.40 Children face significant obstacles, then, in having their views and wishes taken seriously, and probably most significant of all is the assumptions of adults about them. This makes it all the more important that there is some element of consistency, transparency, even guidelines on how their views and wishes are treated in best interest decisions. Surprisingly considering the importance of the matter, it appears that there has been little if any progress in this area since the ratification of crc Article 12 and the introduction of the “due weight” concept. 1.2 We Do Not Have Methodology for Weighing Views crc Article 12 stipulates that, once children’s views have been ascertained, those views must then be given “due weight in accordance with age and maturity”.41 The term ‘weight’, Alderson notes, invokes gravitas and implies attempts to estimate, compare and measure facts, risks and benefits. It necessitates allocation of value to various factors, and potentially to the positions of different agents.42 Weight in Article 12 therefore implies power: “the inherent

39

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that might be rather unfair.” Jonathan Herring, Family Law (3rd edn, Pearson Education Limited, 2011). Elisabeth Godbout, Claudine Parent, and Marie-Christine Saint-Jacques, “Positions Taken by Judges and Custody Experts on Issues Relating to the Best Interests of Children in Custody Disputes in Quebec” 29 International Journal of Law, Policy and The Family 272 (2015), at 289–90. The research indicated that “child custody experts”, for example psychologists, were more likely to be of this view than judges, though the authors emphasise that more research is needed. At 293. Ibid. See also the Guidelines of the Committee of Ministers of the Council of Europe on ChildFriendly Justice (2010), which emphasises “giving due weight to the children’s views bearing in mind their maturity”. At 17. Alderson, note 3.

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power of meaning and relevance in the child’s view, or the bestowed power that adults either ascribe to the child’s view or withhold from it.”43 It is, therefore, potentially a power struggle which is invoked by Article 12 – a power struggle in which the child is, as in many areas of life, disadvantaged by lack of experience, lack of resources, and inevitably by an inequality of status in proceedings (legal standing, representation, physical presence) compared to that of the adults involved. The reference to age and maturity in Article 12 provides an indication of the qualities in the child to be valued when according weight, but little else. So how far have we come since 1989 in terms of building on this vague instruction in Article 12; in understanding how to ‘weigh’ views? It seems, unfortunately, not far at all – there is consensus in the international literature that, in p ­ ractice, the manner according to which children’s views are weighed in the decisionmaking process is very unclear.44 A common question is: What should be done when wishes conflict with ‘best interests’?45 As noted in ­Chapter 3, there are many other questions, such as the extent to which ‘capacity’ or ‘decision-­ making abilities’46 should be considered, and whether the seriousness of the matter in question impacts on the weight children’s views should have. What has the Committee done to clarify this important matter? If we turn to General Comment No. 12, we see that the Committee gives some strong guidance on determining capability of forming views47 (the standard crc Article 12 deems necessary for accessing the right to be heard) but this is not the same as weighing the views of a child determined ‘capable’. These two matters are frequently confused in literature, case law and practice. But they are separate, albeit overlapping, matters. On the face of it, the two phrases in crc Article 12 should be approached separately: (1) “child who is capable of forming his or her own views” obliges authorities to determine whether the child is capable 43 44

Ibid. See for example Liz Trinder, Christopher Jenks and Alan Firth, “Talking Children into Being in Absentia?: Children as a Strategic and Contingent Resource in Family Court Dispute Resolution” 22 Child and Family Law Quarterly 234 (2010), at 236 and Eva Ryrstedt, “Separate Representation and Family Courts: Do We Need Them in the Nordic Countries?” 21 Child and Family Law Quarterly 185 (2009), at 186. 45 Ryrstedt, ibid, at 186. 46 As noted in Chapter 3, Section 5.1.1 I differentiate between the two terms, referring to ‘capacity’ to denote the legal standard for permission to exercise autonomy (although this is often referred to as ‘competence’ in the case law), and ‘decision-making ability’ on a more colloquial basis to refer to the sliding scale of abilities which individuals may possess. 47 Committee on the Rights of the Child, General Comment No. 12: The Right to be Heard (1 July 2009) CRC/C/GC/12, paras. 20–1.

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of forming views; and (2) “the views of the child being given due weight in accordance with the age and maturity”; obliges authorities to determine the extent to which children’s views should influence the decision being made. When it comes to the latter point – weight for views – the Committee has little to say. In the (brief) section tackling this issue,48 the Committee starts by considering the capacity of the child (harking back to point 1 when it seems that it was intended that point 2, weight for views, would be considered); stating that it has to be assessed49 and that all personnel involved in proceedings regarding decision-making are to be trained in this regard.50 The Committee also makes a handful of further comments in General Comment No.12 and other relevant documents: That listening alone is insufficient; “the views of the child have to be seriously considered… ”51 That the views of all children must be accorded weight, and views must also be “effectively taken into account.”52 The Committee also states that certain children’s views are to be given greater weight. For example, where children can form views “in a r­ easonable and independent manner”53 their views must be “a significant factor in the settlement of the issue.”54 These are the only concrete recommendations from the Committee on the matter of weighing views. There are also some vague pronouncements on the nature of ‘maturity’ and ‘understanding’55 which tell us little, if anything, about how to weigh views. The Committee’s reference in General Comment No.12 to capacity and the need for training of professionals under the heading of ‘weighing views’ is a fair observation. But the Committee does not appear to differentiate between capacity to form views on the one hand, and the role of capacity in the matter of weighing views in the other. Nor is there consideration of the fact that capacity is rarely raised in children’s cases outside medical law; nor of the ­difference between abilities on a sliding scale on the one hand and more formal legal mental capacity on the other. In any case the extent of the f­ocus on ­capacity is problematic – as considered in Chapter 3 there is a distinct ­movement away 48 49 50 51 52 53 54 55

Committee on the Rights of the Child, General Comment No. 12, ibid, paras. 28–31. Ibid, para. 28. Whether the Committee is recommending a focus on the legal standard or decision-making in the more fluid sense is unclear. See for example Committee on the Rights of the Child, Day of General Discussion on the Right to be Heard, Forty-third session, 11-29 September 2006, para. 41. Committee on the Rights of the Child, General Comment No. 12, note 47, para. 28. Emphasis added. Committee on the Rights of the Child, Concluding Observations: Denmark (24 November 2005) CRC/C/DNK/CO/3, para. 28. Committee on the Rights of the Child, General Comment No. 12, note 47, para. 44. Ibid. Ibid, paras. 29 and 30.

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from the capacity/incapacity dichotomy in the area of adults with cognitive impairment. This is for a variety of reasons – because it implies a yes/no ­answer; because it is exclusionary of those who do not meet the subjective standard; because capacity is something which can be increased with the right support; and because we know so little about how to measure it. The Committee mentions seriously and effectively considering wishes, and views reasonably and independently formed56 being a significant factor – but all of this is just further vague terminology, which can at the end of the day be interpreted any way that suits adults in charge. It is perhaps surprising that the Committee has not seen fit to emphasise that the wishes of the child should be the most important factor, even if only in certain circumstances.57 In practice children’s wishes are considered to be just another factor when courts are making best interest decisions about them. Autonomy over one’s personal choices may be practically untouchable for adults,58 but for children, it is just another consideration when decisions are taken on their behalf. In Re W. (A Minor) (Medical Treatment: Court’s Jurisdiction)59 for example, a case in which the court was considering forcible medical treatment of a child, the court stated that, whilst the child’s wishes would be considered: “[This] is merely one aspect of the application of the test that the welfare of the child is the paramount consideration.”60 It is really up the court to decide whether other factors trump the wishes of the child, with essentially no special consideration to be given to the seriousness of overriding children’s autonomy. This is the case even where children are 16 or 17 years, on an issue of medical treatment, and even where there is a statute dictating otherwise – the girl in Re W., who ultimately forcibly received medical treatment, was 16 years old.61 It would seem that an easy solution to the fact that we do not know how to weigh views would be to prioritise autonomy (as we do unquestionably with adults), and work from there. What are the views and wishes of the child? Considering the crucial nature of autonomy, are there strong reasons for ­overriding 56 57

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Ibid, para. 44. General Comment No. 12 implies that a child-adult exchange on an “equal footing” is the ultimate stage in child participation, rather than children deciding a matter themselves where they want to do so (para. 84). See in Chapter 3 consideration of cases such as Sidaway v Board of Governors of the ­Bethlem Royal Hospital and the Maudsley Hospital [1985] ac 871, in which it was determined that those with ‘capacity’ have every right to make an irrational medical decision. [1993] Fam 64. Ibid, at 88. In New Zealand see C. v D. and Anor. HC Rot. Civ. 2007-463-0057, para 80 and in Canada L.E.G. v A. G. 2002 BCSC 1455, para. 131. The Family Law Reform Act 1969 stipulates that children can consent to treatment from age 16.

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a child’s wishes? Maybe there are – in Re W. the girl’s life was in danger. In life and death cases the outcome would remain the same. There would still be problems of subjectivity, as what some would consider justifiable reasons for overriding wishes others would not. But the benefits would be that there would not be such an artificial adult/child gap; the approach would be in line with what the psychological research indicates it should be;62 and the mystery of ‘weighing’, and the lack of accountability would be at least somewhat mitigated. Yet, surprisingly, the Committee has advocated nothing of the sort, and this approach is rarely advocated or tried in practice. Comfortable Vagueness? Terminology Employed as Justification for Overriding Children’s Wishes In the absence of any clear methodology for weighing children’s views amongst or against other factors, the reasoning used by decision-makers is the only indication of how judges go about their ‘weighing’ process. The best way to place structure on how courts approach this is to identify the language used. As will be outlined in this section, the language demonstrates how little we know about weighing children’s views in proceedings, how little consistency courts demonstrate when they approach the issue, and how they are often even ­unclear about what exactly it is that they are supposed to weigh. In some cases, lists of factors for weighing views have been presented in the case law; lists similar to those set-out for use in determining what action is in the best interest of the child.63 In T. (Children) (Abduction: Child’s Objections to Return)64 for example the court laid-out factors to consider when ascertaining “strength and validity” (weight is not mentioned65) of children’s views, albeit in Hague Convention cases:66 1.3

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64 65 66

See further Chapter 3, Section 3. Section 1(3) of the Children Act 1989 of England and Wales, for example, sets-out seven factors for consideration when courts determine the best interest of the child: The needs, “wishes and feelings”, and characteristics of the child; effects of a change of circumstances; risk of harm; capabilities of parents; and the powers of the court. See further Chapter 2, Section 4.1. [2000] 2 flr 192, at 202–4. This is a regular occurrence in cases in which children’s wishes are at issue – see also H. (Children) [2014] ewca Civ 733, the word ‘weight’ is not used in this case either. As noted in Chapter 2, Section 5.3, such cases are not resolved on the basis of the best interest of the child as the primary consideration. There is instead a presumption in ­favour of return of the child to the country from where they were removed. Yet there is the possibility to object to return on the basis of, amongst other things, the child’s objection to return (Article 13). Although judges do not have the same discretion as they do in cases

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(a) What is the child’s own perspective of what is in her interests, short, medium and long term? Self-perception is important because it is her views which have to be judged appropriate. (b) To what extent, if at all, are the reasons for objection rooted in reality or might reasonably appear to the child to be so grounded? (c) To what extent have those views been shaped or even coloured by undue influence and pressure, directly or indirectly exerted by the abducting parent? (d) To what extent will the objections be mollified on return and, where it is the case, on removal from any pernicious influence from the abducting parent?67 More recently, in G. (A Child: Intractable Contact)68 the court considered how to approach a child’s views, focusing on ‘understanding’, determining that it encompasses, the judge opined, whether children’s views are “rational, congruent [consistent], and genuine”69 (though even if they are, the judge stated, the court need not follow them).70 In Australia, in the case of R. and R.: Children’s Wishes71 the court also stated that factors which must be considered when determining how to weigh children’s views include the strength and duration of their wishes, the basis for the wishes, the maturity of the child, the ability of the child to appreciate the factors involved in the issue, and the longer term issues involved. There are, therefore, a broad mix of factors which courts are taking it upon themselves to consider – there does not appear to be a country with ­statutory criteria to guide judges in this regard. Courts cite the strength, validity, duration of views; the maturity, understanding and competence of children. There is a conceptual confusion of course. Do courts see their primary task as ­weighing that are more strictly concerned with determining the child’s best interests, they still have a significant amount of discretion as regards how they approach children’s wishes when they object to return. Examination of the way in which they approach those wishes, therefore, is legitimate. 67 [2000] 2 flr 192, at 202–4. 68 [2013] ewhc B16. 69 Para. 84. The judge focused on the phrase “the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding)” as this is what the statutory language (in the Children Act 1989, Section 1.3) requires. 70 Para. 84. “Whilst the court must respect a child’s wishes and feelings it is not bound to follow them even if satisfied that they are rational, congruent and genuine.” 71 R. and R.: Children’s Wishes [2000] Fam ca 43. Citing the Full Court in Harrison and Woollard (1995) 18 Fam lr 788 at 800.

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views? Measuring maturity? Determining the wisdom of a child’s decision? All of these are vastly different exercises, yet they are all listed, and in parts conflated, above and in the case law.72 Courts are unclear about such matters because they have no guidance, and they have no guidance because society and even ‘experts’ are likewise unclear about how to treat children’s wishes.73 In any case, listing factors is at least a step towards trying to establish some consistency and accountability when it comes to weighing views. Yet most cases do not engage in anything as formal as following a set list of factors when it comes to outlining how children’s wishes are being treated or ‘weighed’. The same terms and concepts arise even in judgments without lists however, and it is worth considering the main terminology in greater detail in order to establish whether we know any more about weighing children’s views in 2017 than we did when crc drafting was completed in 1989. 1.3.1 The Factor/s of Maturity/Competence (and Capacity) Not all relevant cases involve explicit reliance upon crc Article 12 when judges are considering how to position children’s wishes in the decision-making process. Nor do they always use the language of ‘weighing’ although the exercise of considering children’s wishes may appear to constitute something along those lines. Nevertheless, consideration of ‘maturity’, one of the two factors (‘age and maturity’) which Article 12 stipulates should dictate how much ‘weight’ to give to children’s views, is a common feature of the case law.74 72 In W. (A Child) [2016] ewca Civ 1051 the 16 year old girl – the subject of care ­proceedings – was successful in her appeal against a decision not to permit her to instruct her own solicitor. The appeal court determined, amongst other things, that the trial judge had confused her understanding (required to instruct her solicitor) with her welfare (the court decided it was contrary to her welfare to instruct). 73 See for example the admission at the end of Re S. that experts do not agree how to proceed when an ‘alienated’ child – a child with strong wishes not to see a parent which are deemed ‘irrational’ – refuses to see a parent (concluding hearing, para. 60). In Re S. there had been an attempt to change the boy’s residence to live with his estranged father ­(during an interim phase in foster care), but this failed and resulted in the boy having clinical mental health issues. See the reported judgments: t.e. v s.h. and S. [2010] ewhc 192; Re S. (A Child) [2010] ewca Civ 291; Re S. (A Child) [2010] ewca Civ 325; and the case review when forced transfer of residence failed: Re S. (A Child) [2010] ewhc B2. 74 See for example Re R. (Residence Order) [2009] ewca Civ 445, para. 58; W. (Minors) [2010] ewca 520 Civ, para. 56; and New Zealand case Y. v W., fc Christchurch, fp 009/1640/88, pp. 8–9. The latter case is cited in Nicola Taylor et al., Children’s Rights in New Zealand Family Law Judgments; Research Report (Children’s Issues Centre, University of Otago, 2000).

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It was outlined in detail in Chapter 3 that the ‘competence’ or ‘capacity’ notion is highly contested and very problematic. In the area of children’s wishes, it is particularly so. Unlike decisions around the autonomy of adults, the idea of ‘maturity’ is introduced when children’s wishes are being considered, as demonstrated by the use of the term in Article 12 itself. This complicates the picture somewhat because, unlike the realm of adult capacity, it introduces the idea that children should necessarily have certain abilities by a certain age. Confusingly, although in the area of laws concerning adults with cognitive impairment the term ‘capacity’ is now commonly used, the terms ‘competence’ and ‘maturity’ are most commonly used in cases concerning children’s wishes, so I will proceed by relying on these terms (to describe what courts are talking about).75 ‘Maturity’ is a construction of developmental psychology to a large extent, and – crucially yet often forgotten – specific to children (rather than adults), so the fact that courts are relying on the notion is questionable, yet rarely questioned.76 The fact that courts are relying heavily on these terms is unsurprising however, considering the prominence of the ‘maturity’ discourse, and considering that the monitoring bodies actually advocate such reliance. As noted above, the Committee considers the concept in its General Comment,77 and the eu Fundamental Rights Agency instructs in its report on child-friendly justice that: “The child’s maturity is critical to determining how he or she should participate in judicial proceedings. eu Member States should introduce a clear legal definition of maturity.”78 This is somewhat ironic considering the lack of agreement on what ‘maturity’ (or ‘competence’, or any of the other terms used) entails. It is predictable then that states have not introduced clear legal definitions, and that courts likewise avoid them. This is to be seen plainly in Re T. ­(Abduction: Child’s Objections to Return)79 in which the judge, in considering whether to take into account the child’s views, stated that one factor was “the

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I will intentionally not provide definitions of these terms because courts refuse to, and I want to highlight the point that they do not. Unlike the courts, I am emphasising that we should not prioritise maturity and competence, but instead whether paternalism is warranted. Tisdall questions in the Scottish family law context, in M. v M. (2008 Fam lr 90) for example, in which a boy’s maturity is being examined, whether the notion of competence is the desired norm in any case. Tisdall, note 3. Tisdall cites M. v G. (2010) wl 1608452. Committee on the Rights of the Child, General Comment No. 12, note 47, paras. 29 and 30. eu Agency for Fundamental Rights, Child-Friendly Justice: Perspectives and Experiences of Professionals on Children’s Participation in Civil and Criminal Judicial Proceedings in 10 eu Member States (European Union, 2015), at 3. [2000] 2 fcr 159.

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degree of maturity of the child”; whilst emphasising at the same time that “I would not wish to venture any definition of maturity.”80 1.3.1.1 What Do the Courts Believe ‘Maturity’ to be? Because courts frequently refer to a child’s ‘maturity’, it is crucial to have an understanding of what courts believe this to actually mean. As noted above, ‘maturity’ is often used interchangeably with other terms such as ‘competence’81 and ‘understanding.’82 In spite of the fact that the term ‘competence’ is often employed to denote a legal standard, particularly in medical law (as in Gillick competence),83 in the case law concerning children in family and child protection proceedings, it is almost always used more colloquially.84 So if maturity does not mean, for example Gillick competence, what does it mean? There are numerous examples of the reliance on maturity/competence ­language in the case law concerning children’s wishes in best interest proceedings.85 Few, however, give us any insight into how the concept is understood. In T. (Children) (Abduction: Child’s Objections to Return)86 the court states that, once it has been determined that a child should be heard, “[a] discrete finding as to age and maturity is necessary in order to judge the next question, which is whether it is appropriate to take account of the child’s views,”87 which the 80 81 82 83 84

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Ibid, at 202. Ciccone v Ritchie (No 1) [2016] ewhc 608, para. 46. G. (A Child: Intractable Contact) [2013] ewhc B16, para. 82. ‘Intelligence’ is also a term used. See for example South Africa case McCall v McCall 1994 (3) SA 201 (C), at 207H. See Chapter 3. Although it is sometimes used in English law to determine whether a child can instruct their own solicitor. See Ciccone v Ritchie (No 1) [2016] ewhc 608, para. 46. See also Re j.s. (Disposal of Body) [2016] ewch 2849 for a rare reference to the fact that the 14 year old child was ‘legally competent’ without explaining how that determination was reached: “js is a child, albeit a legally competent one.” para. 25. See for example In Re J. and K. (Abduction: Objections of Child) [2005] 1 flr 273 the judge opined that the child had “only just” attained an age and degree of maturity at which it was appropriate for the court to take account of his views. See also Re S. (Minors) (Abduction: Acquiescence) [1994] 1 flr 819 and Re T. (Abduction: Child’s Objections to Return) [2000] 2 flr 192 at 203. In the Australian family law case H. v W. the court stated that: “Once a child’s views are established, the next part of the exercise requires analysis of the views, including any factors such as the child’s maturity or level of understanding.” [1995] Fam ca 30. H. v W. was affirmed in Russell and Russell and Anor [2009] Fam ca 28. See in South Africa Rosen v Havenge [2006] 4 All sa 199 (C), para. 34 and New Zealand Blair V Blair hc dun civ 2012-412-0051, para. 26. [2000] 2 flr 192. Presumably the judge means how much weight, although perhaps not – see below at 1.3.5.

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court says requires an “ascertainment” of many factors including the strength and validity of those views, and whether a child has been manipulated. That maturity can be determined with reference to such matters is taken as a given, in spite of the lack of any insight into why the judge believes this. Some assertions are highly problematic – it is not the case that having ‘strong’ views means that one is more mature.88 The language of the courts indicates that ‘maturity’ is usually understood by the courts in best interest proceedings in a colloquial way rather than a measured quantity. This is somewhat understandable for the reason that we do not know how to measure maturity objectively, but problematic in that judges simultaneously speak about it as if we do. Therefore, maturity will inevitably be understood to mean whatever the judge interprets it to mean. 1.3.1.2 Does a ‘Good’ Decision Indicate Maturity? Worse still, courts conflate maturity on the one hand and whether ­something is a ‘good’ decision on the other, as is hinted by the reference to maturity involving ‘valid’ views in T. (Children) (Abduction: Child’s Objections to Return)89 and the reference to ‘rational’ views in G. (A Child: Intractable Contact)90 to determine the level of ‘understanding’.91 In this latter case, the judge e­ xplained that by ‘rational’ he meant “whether the child’s views are rational when judged against any findings the court may have made in respect of parental behaviour.”92 There is much evidence that judges seek to determine how ‘­correct’ a child’s views are when deciding how mature a child is, and the amount of weight to give to their wishes.93 In Norway it is reported that for children’s wishes to be influential they must be “well considered” for example, be determined as based in emotional attachment rather than on, for example, a parent permitting more freedom.94 88

The fact that this is a Hague Convention case probably encourages the judge’s consideration of the ‘strength’ issue, yet see below at Section 1.3.3 numerous examples of the ‘strength’ factor being cited by courts as evidence of the validity of the child’s wishes. 89 [2000] 2 flr 192. 90 [2013] ewhc B16. 91 Para. 83. 92 Ibid. For further consideration of the ‘rational’ factor (particularly as opposed wishes to being ‘emotional’) see below Section.3.3. 93 See for example Re K. [2010] ewca Civ 1546, at para. 24, the judge stated that “strength, a conviction and a rationality” is needed for a child’s view to meet the standards for objection to return under the Hague Convention. 94 Kirsten Skjørten, “Children’s Voices in Norwegian Custody Cases” 27 International Journal of Law, Policy and the Family 289 (2013), at 298–9.

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In the Australian family law case R. and R.95 it was stated that a child’s view would be given “appropriate weight” if those views were “soundly based and founded on proper considerations given the maturity of the child.”96 In Re M. (Republic of Ireland) (Child’s Objections) (Joinder of Children as Parties to Appeal)97 the children’s feelings were considered to be “firmly entrenched, real, and not so obviously misguided as to call into question their maturity.”98 It seems that in addition to being mature, then, children’s reasons would have to be deemed not ‘misguided’ and ‘real’ which is not about maturity, but i­nescapably a value judgment about whether the child’s decision is a ‘good’ one. For an unexplained reason the two factors will then be considered ­together, in that having good reasons is understood to be indicative of maturity. Yet as outlined in Chapter 3, the most mature of persons can make the most ‘poor’ of decisions depending on who is commenting (note the initial resistance by authorities, and subsequent agreement, with Hannah’s rejection of a heart transplant)99 – what constitutes a ‘good’ reason or decision is really just a value judgment.100 The courts essentially are taking the approach that the more ‘correct’ a child’s views, the more mature and competent the child. Yet ultimately it is the court that also determines what the ‘correct’ interpretation of the child’s situation is. It seems then, that children will be competent and mature if their views on their situation concurs with that of the judge, which renders weight for their wishes a moot point. What is the purpose of weighing wishes, if all that means is that the question will in effect be: “how similar to the judge’s determination are the wishes of the child?”

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R. and R.: Children’s Wishes [2000] Fam ca 43. Citing the Full Court in Harrison and Woollard (1995) 18 Fam lr 788 at 800. 96 See Patricia Byrnes, “Voices of Children in the Legal Process” 17 Journal of Family Studies 44 (2011), at 54. 97 [2015] ewca Civ 26. 98 Para. 109. Similarly in T. (Children) (Abduction: Child’s Objections to Return) [2000] 2 flr 192 the court stated: “In determining ‘maturity’ and therefore weight, one of the questions is ‘To what extent, if at all, are the reasons for objection rooted in reality or might reasonably appear to the child to be so grounded?’” 99 See Chapter 1, note 1 and Patrick Barkham, “Hannah’s Choice” The Guardian (12 Nov. 2008). Available at https://www.theguardian.com/society/2008/nov/12/health-child-protection (last accessed 28 Nov. 2016). 100 For a rare reference to this see Re j.s. (Disposal of Body) [2016] ewch 2859 para. 31: “Nor is this case about whether js’s wishes are sensible or not. We are all entitled to our feelings and beliefs about our own life and death, and none of us has the right to tell anyone else – least of all a young person in js’s position – what they must think.”

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1.3.1.3

Why Does It Matter Whether Children are as ‘Mature’ as Their Chronological Age? Age and maturity are, of course, frequently considered together by the courts. This is encouraged by Article 12 which stipulates the allocation of weight in line with “age and maturity”. There is frequent consideration of whether a child’s maturity is line with those of her own age. In Re M. (Republic of Ireland) (Child’s ­Objections) (Joinder of Children as Parties to Appeal)101 the children were assessed by the cafcass officer “as having a degree of maturity in line with their actual ages.” Usually the significance of this – that is, why it should matter whether a child’s maturity matches that of others of the same age – is not considered any further.102 In one Norway case for example, the court notes that the nine year old’s “reasoning around these issues is appropriate to her age…”103 apparently without considering what “appropriate” involves – it is assumed self-evident. In a rare exploration of why having maturity correlated with age might ­matter, in the Scottish case of M. v M.104 an educational psychologist gave ­evidence that an average 10 year old could be persuaded by arguments, be influenced by the way something was presented, and find it difficult to weigh up all factors in a ­decision.105 The Sheriff in his judgment notes that the inability of a 10 year old to weigh all factors is “obvious”106 which begs the question as to why the court would go to the trouble of having a psychologist give evidence to point out the obvious. Courts of course assume that a child’s age will automatically mean that greater weight will be accorded to their views, rarely considering the nuances of age ranges, or the fact that even very young children can have astute, even profound observations on their living situations:107 “G is now 13 years old. She is, therefore, at an age when the court is likely to place significant weight on her expressed wishes and feelings.”108 1.3.2 Maturity, Competence, and Capacity in Other Areas of the Law Oddly, though the concepts or definitions of what the courts refer to as maturity or competence are not seriously analysed in family law or child p ­ rotection 101 [2015] ewca Civ 26, para. 110. 102 See also W. (Minors) [2010] ewca 520 Civ. 103 LA-2005-136932. See further Skjørten, note 94, at 296–7. 104 M. v M. (2008) Fam lr 90. 105 Para 53. 106 Para 54. 107 Alderson, note 3. There are some heartening comments on how generalisations based on age are to be avoided in New Zealand case Blair V Blair hc dun civ 2012-412-0051, para. 26. 108 G. (A Child: Intractable Contact) [2013] ewhc B16, para. 85. This point – that younger children’s views are automatically devalued – is considered in greater detail below at Section 3.

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judgments (nor are they explored in policy or statute in order to inform these judgments); in the arenas of criminal law and medical law such m ­ atters are considered in a more technical manner. In medical law, as outlined in ­Chapter 3, there are commonly understood factors which will be employed to ­determine whether a child (or an adult for that matter) can consent to treatment, a s­ tandard now frequently referred to as ‘capacity’ in England and Wales.109 The four elements considered when determining mental ‘capacity’ to consent to treatment are: “[T]o communicate a choice, to understand the relevant i­nformation, to appreciate the medical consequences of the situation, and to reason about treatment choices.”110 These terms can also be described as vague and subjective, yet at least they are commonly accepted, unlike family law considerations of children’s maturity or competence. These terms also plainly avoid the value-laden judgments in which the courts can be seen to engage in above, insisting that maturity and competence must necessarily ­involve ‘good’ decisions based on ‘rationality’. Note ‘reason’ is used as a verb in the four ­elements, which dramatically reduces the risk of value judgments. There also exists in medical law relatively extensive jurisprudence in which the matter of a child’s capacity (or Gillick competence as it’s frequently referred to111) has been examined, in a way which has not been matched in other children’s cases. Strangely, neither has the medical law guidance been employed in other children’s cases to inform attempts to ‘weigh’ children’s wishes. In determining the maturity or competence of children expressing views in a family law case, for example, we rarely see references to Gillick competence. Sometimes there is passing, incidental reference to the notion, for example in Re S. (A Child – Transfer of Residence)112 in which it was (very briefly) considered whether it was lawful for court staff to forcibly remove a 12 year old to reside with his father – the boy’s legal representative submitted that it was an echr Article 5 (deprivation of liberty) issue. The court noted that there was no ­authority whether such action was lawful where: “the child concerned is a ­Gillick competent child … In this case the question of whether S is G ­ illick 109 In the test for capacity under the Mental Capacity Act of England and Wales, the factors examined are the ability to understand, retain and use or weigh information relevant to a given decision, and the ability to communicate the decision. Mental Capacity Act 2005, Section 3. All practicable steps should be taken, without success, to help the individual to make the decision, before ‘incapacity’ can be determined (Section 1[3]). 110 Irma Hein et al., “Feasibility of an Assessment Tool for Children’s Competence to Consent to Predictive Genetic Testing: A Pilot Study” 24 Journal of Genetic Counselling 971 (2015). 111 See further Chapter 3. 112 Re S. (A Child) [2010] ewhc B2, para. 58.

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competent was never determined by the Court.”113 There was no further ­consideration of this. It seems as if children’s wishes in family law are simply not sufficiently important to be subjected to the kind of scrutiny or rigour to be seen in the medical law jurisprudence, even where fundamental rights, such as deprivation of liberty, are explicitly invoked.114 In criminal law, the question of children’s maturity or competence arises in the matter of their culpability for the crime of which they are accused. There has therefore been some consideration in the courts of matters such as the age at which children should be held responsible for their actions and the type of punishment (if any) which may be appropriate. There are significant contradictions in the area, and children’s rights are often neglected.115 The premise of doli incapax, for example, is that children are assumed to lack capacity and therefore cannot reason as to what is right or wrong.116 That premise has been removed in England and Wales (it had previously been applied to children under 14 years), where the age of criminal responsibility is now 10 years.117 In spite of these problems, there has at least been some serious engagement with the matter of children’s decision-making capacities, rather than assumptions that everyone is in agreement on what these entail.118 In Roper v Simmons,119 for ­example, the us Supreme Court held that it is unconstitutional to impose capital punishment 113 Ibid, para. 58. 114 Buss similarly points to the lack of analysis in us jurisprudence of what ‘capacity’ might mean. Emily Buss, “What the Law Should (And Should Not) Learn from Child Development Research” 38 Hofstra Law Review 13 (2009), at 26. 115 See for example Stephanie Rap, “A Children’s Rights Perspective on the Participation of Juvenile Defendants in the Youth Court” 24 International Journal of Children’s Rights 93 (2016). 116 For consideration of this in the English context see Kate Fitz-Gibbon, “Protections for Children before the Law: An Empirical Analysis of the Age of Criminal Responsibility, The Abolition of Doli Incapax and the Merits of a Developmental Immaturity Defence in England and Wales” 16 Criminology and Criminal Justice 391 (2016); in New Zealand: Nessa Lynch, “Doli Incapax” New Zealand Law Journal 245 (2011), and in the Australian context, see Nicholas Lennings and Chris Lennings, “Assessing Serious Harm Under the Doctrine of Doli Incapax: A Case Study” 21 Psychiatry, Psychology and Law 791 (2014). 117 See Fitz-Gibbon, ibid. 118 There is a large body of research on children’s ‘competence’ to stand trial. See for example Michael Fogel et al., “Ten Year Research Update (2001–2010): Evaluations for Competence to Stand Trial (Adjudicative Competence)” 31 Behavio[u]ral Sciences and the Law 165 (2013); Norman Poythress et al., “The Competence-Related Abilities of Adolescent Defendants in Criminal Court” 30 Law and Human Behavio[u]r 75 (2006); Vance Cowden and Geoffrey McKee, “Competency to Stand Trial in Juvenile Delinquency Proceedings: Cognitive Maturity and the Attorney-Client Relationship” 33 Journal of Family Law 629 (1994). 119 Roper v Simmons, 543 u.s. 551 (2005).

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for crimes committed by children because of relative their lack of competence; relying on developmental psychology theory in the judgment.120 The question also often arises as to whether children are competent to testify as victims or witnesses. This has also led to some serious consideration of what competence means, albeit in this narrow context. Statute in England and Wales concerning the competence of witnesses to give evidence121 was considered in R. v Barker122 for example, where it was held that judges should refrain from creating or imposing additional non-statutory criteria based on assumptions about children.123 The existence of statutory provisions, therefore, discourages value judgments about what children can and cannot, should and should not, be capable of. It seems all the more surprising then that no state appears to have seen fit to introduce any statutory directions for judges weighing children’s wishes in, for example, family law. 1.3.3

Clarity, Strength, Emotion, Manipulation The upsetting bit is you’ve gone from having a mum and dad, you’ve still got a mum and dad but now you can only live with one of them … it’s like getting an Olympic runner and saying which leg do you want to keep because we’re chopping one off, you know.124

120 The consideration by the court of developmental psychology was not, however, unproblematic. See Buss, note 114. 121 Section 53 of the Youth Justice and Criminal Evidence Act 1999 states that: (1) At every stage in criminal proceedings all persons are (whatever their age) competent to give evidence. (2) Subsection (1) has effect subject to subsections (3) and (4). (3) A person is not competent to give evidence in criminal proceedings if it appears to the court that he is not a person who is able to – (a) understand questions put to him as a witness, and (b) give answers to them which can be understood. (4) A person charged in criminal proceedings is not competent to give evidence in the proceedings for the prosecution (whether he is the only person, or is one of two or more persons, charged in the proceedings). (5) In subsection (4) the reference to a person charged in criminal proceedings does not include a person who is not, or is no longer, liable to be convicted of any offence in the proceedings (whether as a result of pleading guilty or for any other reason). 122 [2010] ewca Crim 4. 123 Para. 39. 124 Adult describing experience as child of parental separation, cited in Jane Fortin, Joan Hunt and Lesley Scanlan, Taking a Longer View of Contact: The Perspectives of Young Adults who Experienced Parental Separation in their Youth (Sussex Law School, 2012), at 151.

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1.3.3.1 ‘Clear, Strong’ Views Preferred Best interest decisions are concerned with difficult family matters, involving intimate personal conflicts. Many children will inevitably struggle with what they want – but this struggle does not mean that they may not ultimately want a determinative say. Nevertheless judges favour views that they consider to be, as described in one Hague Convention case in Ireland, “clear” and “firm”.125 Wishes are more likely to be upheld if they are “unambiguous”126 – it is emphasised by the Norway Supreme Court for example that less weight will be accorded if the child’s opinion shifts.127 In the Scottish family law context, Tisdall and Morrison highlight the “descriptors” used to justify the weight judges give to children’s views.128 They found a clear divide between views described as “consistent, definite, and clear” on the one hand, and those described as “ambivalent or anxious” on the other.129 The former type of view was found by the authors to be accorded significant weight by decision-makers. Where views fell into the latter category, however, this was given as a reason for limiting weight.130 As well as being clear, a child’s wishes must be ‘strong’131 – as noted above, in T. (Children) (Abduction: Child’s Objections to Return)132 strong views appeared to be understood to be more mature. In Hague Convention cases, the court’s intepretation of a threshold involving “strength of the feelings”133 is set even higher than domestic cases, in that children must go “beyond a mere preference to remain” in the country to which they have been taken unlawfully; they have to clearly “object” to return. In K.P., the judge at trial level (whose decision was ultimately contrary to the child’s wishes) was of the opinion, as described by the appeal court, that the girl’s views lacked “clarity” which, the judge decided, pointed to a lack of rationality.134 125 U. v U. [2011] iehc 268, para. 29. See also Ciccone v Ritchie (No. 1) [2016] ewhc 608 para. 48; G. (A Child: Intractable Contact) [2013] ewhc B16, and Australian case Bell and White 2014 Fam ca 258. 126 Skjørten, note 94, at 298–9. 127 RT-2006-1308, RT 1996-1684 and RT 2005-624. Similarly, in New Zealand context see R. v P., fc Hastings, fp 020/307/95, at 3, cited in Taylor et al., note 74, at 13; and Thorpe v Barrett [2015] NZHC 3344, para 88. 128 Tisdall and Morrison, note 3, at 162. 129 Ibid. See also New Zealand case L. v T. hc tau civ-2011-470-00568 at para 24. 130 Ibid. See also in the Canadian context Jablonski v Jablonski (No. 2), 2004 ONCJ 336, para. 9. 131 See for example Re K. [2010] ewca Civ 1546, at para. 24 for the ‘strength’ required for Hague Convention case objections. 132 [2000] 2 flr 192. 133 Re M. (Republic of Ireland) [2015] ewca Civ 26, para. 108. 134 Re k.p. (A Child) [2014] ewca 554, para 58.

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On the one hand, it seems understandable that clear views are held as more valid than ambivalent/anxious ones. However on the other, it is unsurprising that children may be ambivalent about the presumably confusing and unsettling situation of family breakdown, and anxious about the outcomes of the decision-making process. Therefore, it should not be assumed that children’s views should be accorded less weight in such circumstances, when children are likely demonstrating normal reactions to stressful events.135 It also shows that children must have sufficient time, resources, and meetings with those transmitting their views, to ensure that they have the opportunity to form views, express those views, and indicate a change of mind if this happens. If children change their minds it may indicate “ambivalence”, but it is more likely a normal process of decision-making and responding to changing circumstances.136 Adults are often ambivalent too, particularly when it comes to important and daunting matters such as healthcare decisions,137 and their choices are nonetheless respected. 1.3.3.2 The ‘Rational’ View: Emotion Bias Courts seek the ‘rational’138 rather than the ‘emotional’ when it comes to children’s reasons for their wishes and decisions. Even the un High Commissioner for Refugees in its guidance for determining the best interests of the child139 recommends that weight for children’s views should be dependent on whether they have “a sound rational basis.”140 Domestic courts frequently consider whether children are rational.141 There are few attempts by courts to outline what exactly being ‘rational’ entails. In Re S. (Minors) (Abduction: Acquiescence)142 the court stated that, in Hague Convention cases, when it comes to examining the child’s views on whether they object to return it must be determined whether her answer “does not depend upon instinct alone” but also considers long-term i­mplications. 135 Tisdall and Morrison, note 3, at 162. 136 Note the case of Hannah in Chapter 3. See also Alderson in the context of decision-­making in medical treatment, which she says will involve an “emotional journey”. Alderson, note 3. 137 James Childress, “The Place of Autonomy in Bioethics” 20 Hastings Center Report 12 (1990), at 13. 138 See for example Re R. (Residence Order) [2009] ewca Civ 445, para. 58. 139 un High Commissioner for Refugees, unhcr Guidelines on Formal Determination of the Best Interests of the Child (un High Commissioner for Refugees, 2006). 140 un High Commissioner for Refugees, ibid, at 31–2. 141 See for example G. (A Child: Intractable Contact) [2013] ewhc B16; Re S. (Transfer of Residence) [2010] ewhc 192; Re R. (A Child) [2009] ewhc B38, para. 22. 142 [1994] 1 flr 819, at 827.

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Judges are often sure that they know what is and is not a rational view. In ­Scotland the Sheriff (judge) in M. v M. notes when considering the validity of the boy’s views that “one of his reasons is factually correct, that he will not see his extended family as regularly as before.”143 In one Norwegian case the court referenced the validity of the girl’s disappointment in her father.144 There is a distinct fact versus feeling approach by the courts – basing wishes on facts is interpreted as a good thing, whereas if a wish is perceived by judges as based only on emotions and feelings, it will possibly not be rated by the court as valuable at all. In M. v B.,145 a Hague Convention case, the question was whether to return a 12 year old boy who had lived in England with his father for three years to his mother in France seemingly146 against his wishes. The court concluded that the boy’s “emotional conflict … militated against his views representing a public policy reason” not to return him.147 Yet emotional conflict appears entirely natural in this case, considering that the boy was, without warning, removed from school and from the care of his father by authorities five days previously.148 Likewise the judge at trial level in K.P. was also apparently deterred from valuing the girl’s views as she “could not objectively justify” her “passionate” wishes – this contributed to the decision that the girl’s wishes were not objective and rational.149 Whilst the courts may search for the reasons and logic for children’s wishes, children themselves may often operate on the basis of instinct.150 The powerful example of Clare, who expressed a strong wish not to have contact with her father, but could not apparently present ‘good enough’ reasons beyond not enjoying contact,151 was poignantly illustrative of this trend: Cos that’s the annoying part because apparently I don’t have a good enough reason, because

143 144 145 146 147

148 149 150 151

(2008) Fam lr 90, para. 54. LA-2005-136932. See further Skjørten, note 94, at 296–7. M. v B. [2016] ewhc 1657. There was only one interview of the boy, at a time when he was clearly upset, so the outcomes he may generally want from the case were in fact somewhat unclear. M. v B. [2016] ewhc 1657. It must be acknowledged that the father appeared to have tried to influence the boys’ views by, for example, telling them that their mother was “evil” and did not love them. (Para. 19). M. v B. [2016] ewhc 1657, at para. 16. Re k.p. (A Child) [2014] ewca 554, para. 58. Tisdall and Morrison, note 3. Clare’s mother had concerns about Clare’s physical safety on contact visits with her father, due to minor injuries which Clare had received during such visits in the past. See Tisdall and Morrison, note 3 at 166.

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sometimes you don’t need a reason sometimes you just have a feeling and you have to go by your instinct. As noted by Tisdall and Morrison, Clare had an ‘instinct’ against contact but this appeared to be insufficient for the court, which repeatedly made orders for contact.152 Yet logically it is unjustifiable to diminish views, wishes, or decisions of children because they are ‘emotional’ or based on instinct. For one thing children hold preferences on these types of matters because of the attachments (or not) which they have formed with the adults involved.153 These attachments are based on feelings, which means that they are also based on reality. Our feelings are very real for us all. Furthermore, it has been argued that “the emotions we have make us the agents we are”154 because they reveal what we care most about. Emotions are integral to autonomy as they “demonstrate our values and reasons.”155 Emotions help us to assess the adequacy of our principles156 as they help us to accord priority to them, and to fix preferences.157 To make a decision which truly reflects one’s autonomy then, one needs tools for applying relevant information, to have an understanding of what one wants and what is ‘good’.158 Not only is it logically unjustifiable to diminish views, wishes, or decisions of children because they are ‘emotional’, it also seems simply unfair. Emotions are perhaps the part of another individual which we can least claim to understand. Courts should, therefore, be expected to employ great caution when commenting on, let alone overriding children’s emotional preferences when making best interest decisions. Instead the courts appear actually more likely to be dismissive and devaluing of children’s wishes in such circumstances. 152 Tisdall and Morrison, note 3 at 166–7. See also Canadian case Millar v Williams, 2009 CanLII 41350, in which the court held that the child’s desire to be with her mother was not a good enough reason to change residence, upholding the order that she live with her father. 153 Kaltenborn, note 2, at 90–1. 154 David Shoemaker, “Caring, Identification, and Agency,” 114 Ethics 88 (2003), at 94. 155 Christine Tappolet, “Emotions, Reasons, and Autonomy” in Andrea Veltman and Mark Piper, eds, Autonomy, Oppression, and Gender (Oxford University Press, 2014), at 165–6. 156 Marilyn Friedman, “Autonomy and the Split-Level Self,” 24 Southern Journal of Philosophy 19 (1986). 157 Louis Charland, “Is Mr. Spock Mentally Competent? Competence to Consent and Emotion” 5 Philosophy, Psychiatry and Psychology 67 (1998), at 72. 158 Jonathan Herring and Jesse Wall, “Autonomy, Capacity and Vulnerable Adults: Filling the Gaps in the Mental Capacity Act” 35 Legal Studies 698 (2015), at 705. Herring and Wall argue that as capacity is expressed in terms of rational reasoning under mental capacity law in England and Wales, it is not made it clear that emotions are an essential aspect of capacity, because they give vision to practical reasoning – they provide a concept of what is ‘good’ (Herring and Wall, at 705).

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1.3.3.3 The Concern of Courts with Whether Children’s Views are ‘Their Own’ Even when children are fortunate enough to be ‘heard’ it seems that adults often treat their views with suspicion. There is a distinct sense that the starting point is often that children will not be believed. It seems that they must prove: That their views are ‘real’; that they are not expressing things that are too frivolous to be given credence; that they are not just repeating something they have been told to say by somebody else; and that they have not been unduly influenced, manipulated or ‘brainwashed’. The preoccupation with ‘manipulation’, considered in greater detail in Chapter 6, is a constant feature of the case law. Again, as with the concepts of maturity, competence and rationality159 the concern with influence and manipulation is present in guidance from inter-governmental organisations. The un High Commissioner for Refugees in its guidance for determining the best interests of the child160 for example recommends that weight for children’s views should be dependent on “whether the views expressed by the child are genuine … or can be shown to be wholly or partly a result of manipulation.”161 Courts consider whether “the child’s views have been influenced by some other person;”162 having to reassure that a view “bears no mark of biased influence;”163 without acknowledging the fact that we are all influenced by those around us in our thinking and decision-making. Whilst it is understandable that courts would be aware of the possibility of pressure and manipulation on children, they dwell on it to the extent that they appear inherently suspicious of what children have to say. In Scotland in White v White,164 where a father sought to re-establish contact after some time, the court assumed the 10 year old girl was resistant because of influence by her older sister. This was despite the fact that her distress about the situation was accepted by the court to be genuine.165 In New Zealand, in H. v H.166 the judge referred to his belief that the child would not be able to express a wish to see his father for fear of

159 160 161 162

See for example un High Commissioner for Refugees, note 139. un High Commissioner for Refugees, note 139. Ibid, at 31–2. S. v S. (Child Abduction) (Child Objections) [1991] 2 flr 492, at 501; see also W. (A Child) [2016] ewca Civ 1051. 163 LA-2005-136932. See further Skjørten, note 94, at 296–7. 164 2001 slt 485. 165 It was for example, exacerbating health problems, indicating that she had very real distress about the prospect of contact. 166 H. v H., fc Nelson, fp 042/107/91, at 12. Child aged 8 years. See Taylor et al., note 74, at 13.

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­upsetting his mother.167 In R. v R.,168 a ten year old’s views were assumed not to be her own because she had been interviewed in the presence of her mother (the possibility of re-interviewing alone in order to correct this problem was inexplicably not considered). In S. v S. (Child Abduction) (Child Objections)169 the judge stated that “if the court should come to the conclusion that the child’s views have been influenced by some other person, for example the abducting parent … then it is probable that little or no weight will be given to those views.” As I outlined in Chapter 1,170 courts should never attribute ‘no weight’ to children’s views. It should always be assumed that children’s views are a factor, even if other factors weigh against them. Yet judges appear so preoccupied with manipulation that they often seem to believe that its existence renders it justifiable to disregard children’s views altogether.171 It has been suggested that a reason for this distrust of children is the prevalence of the discourse of ‘parental alienation’.172 There have been attempts on the part of some professionals to have the phenomenon of children resisting a relationship with the non-resident parent (‘alienation’) recognised as a clinical syndrome manifesting in children (‘parental alienation’).173 There is no clinical recognition of the phenomenon as a syndrome and this notion is largely dismissed outside of the us where those invoking it have had some success in the courts.174 It has not been accepted in the mental health arena due to a lack of sufficient scientific reliability.175 Critics have argued that proponents of alienation as a syndrome focus almost exclusively on the alienating parent as to 167 “To express a wish to see his father can only lead him into conflict with his mother who is his primary caregiver. This would not be an avenue that would be open to the child.” H. v H., fc Nelson, fp 042/107/91, at 12. 168 [2002] Fam ca 383. 169 [1991] 2 flr 492, at 501. 170 See Chapter 1, Section 5.3. 171 See also Israeli case FamA (Dist ta) 1167/99 R. v L. (unreported, 3 July 2000) [incadat cite: HC/E/IL 834]. 172 Tisdall, note 3. 173 Naomi Ben-Ami et al., “The Long-Term Correlates of Childhood Exposure to Parental Alienation on Adult Self-Sufficiency and Well-Being” 40 American Journal of Family Therapy 169 (2012). 174 Gardner introduced the term “Parental Alienation Syndrome” in a 1985 paper; Richard Gardner, “Recent Trends in Divorce and Custody Litigation” 29 Academy Forum 3 (1985). 175 See for example Carol Bruch, “Parental Alienation Syndrome and Alienated Children – Getting it Wrong in Child Custody Cases” 14 Child and Family Law Quarterly 381 (2002); Jennifer Hoult, “The Evidentiary Admissibility of Parental Alienation Syndrome: Science, Law, and Policy” 26 Children’s Legal Rights Journal 1 (2006) and William Bernet, “Parental Alienation Disorder and dsm-v” 36 The American Journal of Family Therapy 349 (2008).

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blame for conflict;176 the theory being biased against women, as lacking an empirical basis and being successfully relied upon in court by abusive fathers.177 Nevertheless the claims of its proponents appears to have had a significant effect on the courts’ approaches to, and popular perceptions of, children. Consequently children appear to have to prove that they have not been ‘alienated’ by pressure from the resident parent where they resist contact. Even in the echr – in the case of Sommerfeld v Germany178 – ‘parental alienation syndrome’ has been cited in a partly dissenting judgment. The dissenting j­ udges were holding that a more recent expert opinion on “the truthfulness of the wishes expressed by the child”179 was necessary in a case where a German court had refused to force contact on a child aged between the ages of 10 and 13 years at the time of proceedings.180 The implication is that the child was lying. This type of suspicion by the courts – that their views are not their own – can leave children frustrated and demoralised: [C]os they blamed my mum a lot, the judge said that my mum was putting words into our mouth but we weren’t, we weren’t really children when it happened. We were old enough to have a view of our own and I don’t think they understood that we can have a point of view ourselves.181 This constant questioning of whether children’s expressed views are ‘real’ is particularly evident where judges disagree with children’s views. In H. (Children)182 the court at trial level opined that with children one sometimes “has to look at actions rather than words.”183 The judge also said that she would not permit the boys, aged 11 and 13 at the time of appeal, to have Christmas with their mother “[m]uch as I would like to give these boys a Christmas as they want it, or as they believe they want it…”184 further indicating her s­ cepticism 176 Estrangement is, of course, much more complex. Research in Australia found that adult children reported three core reasons for estrangement: Abuse, poor parenting, and a sense of betrayal. Kylie Agglias, “Disconnection and Decision-Making: Adult Children Explain Their Reasons for Estranging from Parents” 69 Australian Social Work 1 (2016). 177 James Bow et al., “Examining Parental Alienation in Child Custody Cases: A Survey of Mental Health and Legal Professionals” 37 American Journal of Family Therapy 127 (2009). 178 Sommerfeld v Germany, Appl. No. 31871/96, judgment of 8 July 2003. 179 Ibid. Dissenting opinion. 180 See also Suss v Germany, Appl. No. 40324/98, judgment of 10 November 2005 in which the court held that although the negative attitude of the child towards the applicant father was partly caused by the mother, it was the wish of the child that prevailed as opposed to that of the mother. 181 Sixteen year old girl with experience of family law proceedings, quoted in Douglas et al., note 1, at 90. See also Canadian cases Bergen v Bergen, 2008 ABQB 237 and Letourneau v Letourneau, 2014 ABCA 156. 182 H. (Children) [2014] ewca Civ 733. 183 Trial judge, para. 72. 184 Trial judge, para. 75.

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of what the children had to say. In K. (Children)185 the wishes of the children against contact with their controlling and aggressive186 father were overridden by the court on the basis that they were reportedly positive when looking at photos of him, and enjoyed receiving presents from him. This was in spite of the fact that the court accepted that mother and children were terrified of the father.187 It is not enough for children to state their wishes, because they will have behaviour analysed and potentially instrumentalised against them. Strangely, changing one’s mind can result in a determination that children’s views are not ‘their own’, although the reason for the assumption behind this is not evident. In Norway, it has been established that changing views on a question “may lead to the conclusion that the child is under pressure and not really expressing his or her own wish.”188 The Sheriff (Scottish judge) in M. v M. decided that since the child had “never changed his mind, I think this must be his own opinion.”189 As noted above it is first unfortunate that changing one’s mind is seen as such a negative thing in such cases (changing one’s mind to respond to a difficult and probably shifting situation seems quite natural, even desirable). Secondly, it is really unclear what the correlation with manipulation might be. Surely a child could just as easily be consistent in their manipulated views? In spite of constant references to whether or not a child’s views will be ‘their own’, courts tend to be satisfied, generally, as to the obviousness of whether children have been manipulated or not. And usually, the claim is that their views are ‘their own’.190 In Re U.-B. (A Child) where a mother was maintaining that her son had been manipulated by his father into the claim that he did not wish to return to her care, the court noted that the cafcass officer reported the boy’s love for his mother, and the boy’s concern that if he were forced to return, his resentment would harm their relationship. The judge concluded

185 [2016] ewca 99. 186 Ibid, para. 5. There was ‘only’ one instance of physical violence (para. 6). 187 It is quite likely that the downplaying of the children’s wishes was on the basis that they were young – aged five and six years. The diminishing of the wishes of younger children is considered further below. See Section 2. 188 Skjørten, note 94, at 298–9. 189 (2008) Fam lr 90, para. 54. See also Canadian case P.J.A. v S.C.C., 2015 ABQB 800, para. 9. 190 See for example Re j.s. (Disposal of Body) [2016] ewhc 2859, at para. 9: “[S]he has not been coerced or steered by her family or anyone else.” See also An nhs Trust v a.b.c. & A Local Authority [2014] ewhc 1445, para. 14 and in the context of a child protection case P. (A Child) [2016] ewca Civ 1127 para. 23. See however much confusion on this point on the part of the trial judge in A. (A Child) [2013] ewca Civ 1104, para. 73.

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“[t]hese references do not sit easily with the idea of a child who has been manipulated by the other parent into voicing objections.”191 It appears that there exists less manipulation or pressure on children than adults expect. Furthermore, research indicates that professionals ascertaining children’s views are confident that they can tell when children are giving views which are as a result of pressure or manipulation.192 It seems necessary then that decision-makers should be discouraged from holding a default position of failing to trust what children are saying. 1.3.4 The Concern with Protection The factors of maturity, rationality and others considered thus far is, perhaps surprisingly, accorded far greater explicit consideration than protection issues (in private law cases at least) when it comes to children’s wishes. This seems surprising, considering the fact that the search for the best interest of the child is an inherently ‘protective’ endeavor. Decision-makers are presumably focused on ‘protecting’ children in order to secure their best interests. In child protection cases the protective element is far more obvious. By their nature these cases will involve children who are relatively more vulnerable than other children. Two cases observed in Dublin district courts involved wishes versus welfare conflicts. In the first, a 17 year old girl in institutional care, the court was informed, was disappearing from her institution with a middle-aged homeless man for long periods. Her social worker feared that she would disengage from services altogether if they attempted heavy-handed intervention. The judge was very dissatisfied with the authority’s handling of the situation and ordered authorities to focus on ending this relationship; suggesting that she should be followed by a private investigator, as “this is how a parent would react”.193 In another case, two teenagers had lived with their foster family for some years. An allegation of abuse had been made by another foster child against the foster father and authorities sought to remove the two girls pending a full investigation, the conclusion of which was due in the next two to three weeks. An order had been made for their removal but the girls were ­absolutely refusing to go. The judge insisted that authorities remove the 191 Re U.-B. (A Child) [2015] ewca Civ 60, at para. 39. 192 See for example Judy Cashmore and Peter Parkinson, “Children’s Participation in Family Law Disputes: The Views of Children, Parents, Lawyers, Counsellors” 82 Family Matters 15 (2009), at 20. 193 Dublin District Court 20, 2008. See Aoife Daly, The International Legal Right of Children to be Heard in Civil Law Proceedings Affecting them (Unpublished Ph.D. Thesis, Trinity College Dublin, 2010), at 332.

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girls.194 There are no easy answers in such cases,195 yet the ‘protection at all costs’ approach clearly neglects the need to protect from emotional harm, for example from forcing children out of their home against their wishes. Judges rarely if ever consider the harm to children from autonomy denial,196 in spite of extensive evidence of how crucial a sense of choice and control is to our well-being.197 This is particularly the case in family law where child protection is less of a prominent issue. Even where distress to children is considered, it is rarely if ever in the context of the harm of going against the child’s wishes, but instead it is solely concerned with the harm faced by the proposed action itself. In G. (A Child: Intractable Contact)198 for example the court was concerned about “distress”199 when considering whether to make an order for overnight contact in respect of a 13 year old against her wishes. However the court did not express concern about distress from forcing her into something she did not want, but instead from the experience of the overnight stay itself. In any case, the court was clearly already inclined against ruling in favour of the “aggressive”200 “controlling”201 “obsessive”202 father203 which made it more likely that the court would agree with the child’s views. In one sense the lack of attention to potential harm to children from overriding wishes is unsurprising, on the basis that courts consider it to be so

194 Ibid. 195 In the latter case, however, where interim protections had been put in place, the order of the court against the girl’s wishes appeared less necessary as potential harm seemed less likely. 196 This is considered extensively in Chapter 6, Section 2.1. It should be noted that there are however some heartening references to ‘consequences’ of contact against wishes in New Zealand case A. v S. hc mas Civ-2004-435-245, para. 14 and Canadian case P.J.A. v S.C.C., 2015 ABQB 800, para. 7. 197 This is outlined in Chapter 3, Section 3. 198 [2013] ewhc B16. 199 Ibid, para 90. 200 Ibid, para 14. 201 Ibid, para 14. 202 Ibid, para 16. 203 Similarly, in the case Re M. (Republic of Ireland) (Child’s Objections) ( Joinder of Children as Parties to Appeal) [2015] ewca Civ 26 the court was concerned about the elder boy’s distress, but was already quite convinced of the terror of the children of the father’s violence – see for example paras. 85 and 94. The court was once again giving weight to the boy’s feelings in a context where they accorded with the court’s own determination. Another exception is Re j.s. (Disposal of Body) [2016] ewch 2859 in which the court noted that following the child’s plans for her body would decrease her: “agitation and distress about her impending death.” Para. 13.

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s­ elf-evident that adults, not children, make the decisions.204 As pointed-out by Cordero Arce, adults in fact appear to object to decisions made on the basis of what children want, unless those wishes accord with what the adults think already; because at the end of the day it is about adults retaining control over children.205 In H. (Children)206 the words of the court at trial level about the children’s resistance to the court order207 are telling: “Children who are suborned into flouting court orders are given extremely damaging messages about the extent to which authority can be disregarded and given the impression that compliance with adult expectations is optional.”208 It is the inclination to resist the court, and adults generally, that appears to most concern this judge, rather than the best arrangement for the children.209 The search for the best interest of the child may be an inherently ‘protective’ endeavor, and the protection language may be present in the case law. Yet the primary emphasis appears to be on the search for the outcome which the decision-maker feels is ‘best’, rather than an explicit sense of a need to protect the children, let alone their autonomy. 1.3.5 To Give Weight or Not to Give Weight? 1.3.5.1 Is It Ever Justifiable to Give Views ‘No Weight’? The text of Article 12 states that children’s views are to be given “due weight”210 therefore children’s wishes are not to be simply dismissed entirely in any particular case – it is implied that there must always be some level of weight

204 See Thomas and O’Kane, note 27, at 151. 205 Cordero Arce, note 3, at 300. 206 [2014] ewca Civ 733. 207 The judge’s decision to override the children’s wishes was upheld on appeal. 208 H. (Children) [2014] ewca Civ 733. Trial judge, para. 74. 209 See also Re S. (Contact: Intractable Dispute) [2010] 2 flr 1517 (para. 7) in which the judge said whilst overriding the wishes of children aged 12 and 13 “children of his age have to have their lives regulated by adult judgment.” See also in A. (Children) [2015] EWCA Civ 133 where the trial judge had said that ordering a paternity test at the behest of a 13 year old to would be akin to “lunatics…tak[ing] over the asylum”. See Aoife Daly, Why Shouldn’t “­Lunatics” Run the “Asylum”?: Re A (Application for dna Testing) and Attitudes to Children in Proceedings (31 Mar. 2105). Available at http://www.lancaster.ac.uk/law/blogs (last accessed 11 Mar. 2017). In Canada, see K.D.S. v G.M.P., 2017 ONSC 212 in which the judge criticised the father for an “atmosphere of empowerment” for the children aged 13 and 17 years. 210 This was emphasised during drafting and later by the Committee which asserts that, “simply listening to the child is insufficient; the views of the child have to be seriously considered when the child is capable of forming her or his own views.” Committee on the Rights of the Child, General Comment No. 12, note 47, para. 28.

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­accorded.211 Yet in practice it seems that the courts have not interpreted the point in this manner (that is, that children’s views can be weighed or not), often querying whether wishes are to be given any weight at all. In particular this line of thinking appears to be encouraged in Hague Convention cases, as courts are instructed to consider whether the child “has attained an age and degree of maturity at which it is appropriate to take account of its views.”212 The text appears to encourage not hearing and weighing views, but consideration of whether views are worth anything at all.213 In Re R. (Child Abduction: Acquiescence) the court considered whether “the child is of sufficient age and maturity for his views to be taken into account.”214 The court does not appear to be asking whether the child is of an age and maturity to be heard or how much weight to give views – fairly legitimate questions – but instead whether views will be taken into account. The latter seems like a question about whether wishes from a child who has provided views are to be given any weight at all. The language of the courts implies that there are views which can be heard and then potentially dismissed entirely. This is really unfortunate language – should all views of children in cases concerning their most intimate lives not be ‘taken into account’, even if they must be treated with caution for whatever reason? Of course, not all courts are dismissive of children’s wishes. In some cases distinctly respectful and diligent approaches are taken to the process of weighing children’s views. In some instances courts emphasise the importance of the exercise of considering children’s wishes, even if there is no explicit reference to the term ‘weight’. In the Australian case Harrison and Woollard215 for example the judge emphasised that “the court must be seen to take into account a child’s wishes and, if they are rejected, clear and cogent reasons must be given”; noting literature on the issue and emphasising “that the goal must be to seriously assess the wishes”. In R. v R. the judge said “that the o­ bligation 211 As was considered in Chapter 1, though the question of how to ‘hear’ young children and to weigh those views is a difficult one, the Committee urges a liberal approach, as all children can ‘communicate’. Ibid, para. 21. 212 Article 13. 213 Notably the text also unfortunately refers to the hypothetical child as “it”. 214 Re R. (Child Abduction: Acquiescence) [1995] 1 flr 716 at page 734. See also White v Northumberland [2006] nzflr 1105 and also S. v S. (Child Abduction) (Child Objections) [1991] 2 flr 492. At 501 it was stated that “if the court should come to the conclusion that the child’s views have been influenced by some other person … little or no weight will be given to those views.” 215 R. v R.: Children’s Wishes [2000] Fam ca 43. Citing the Full Court in Harrison and Woollard (1995) 18 Fam lr 788 at 800.

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of the court in relation to the valid views of a child is to given them careful and appropriate consideration”216 and that the court must give reasons to e­ xplain the decisions where it decides against those wishes.217 Excitingly, in Re L.-W. (Children) (Enforcement and Committal: Contact)218 in 2010 the court even referred directly to the “blunt instrument of coercion” in refusing to force an eleven year old into contact with his estranged mother and the Supreme Court of Canada stated in 2009 that in some cases, “the principles of welfare and autonomy will collapse altogether and the child’s wishes will become the controlling factor.”219 It is heartening to see some reference in the case law to the fact that children’s wishes are important and that coercion can be unhelpful.220 Yet these cases usually involve older children,221 and usually involve children with whose views the court agrees anyway. They appear to be the exception that proves the rule. 1.3.5.2 How Can Courts Prove That Views and Wishes Have Been ‘Weighed’? There is a distinct problem in that, no matter how determined a court is to give proper consideration to a child’s wishes, without establishing a methodology for how to ‘weigh’ them, it is very hard to see how the exercise of considering children’s wishes can be done effectively, transparently and consistently. In some cases the answer or outcome will either be yes or no for a child (for example, will a child live with their mother or father?)222 There may be little room for negotiation. In such cases, proving that a child’s wishes have been given ‘due weight’ will be a challenge. This appears to pose challenges, not just for children, but for judges themselves. One has to have sympathy for the trial judge in Re R. (Residence Order).223 The Court of Appeal found that inter alia the trial judge had erred in giving insufficient weight to the views of a nine year old boy224 who wished to return 216 See further Byrnes, note 96, at 54. 217 Byrnes, note 96, at 55. 218 [2010] ewca Civ 1253 at 124. 219 A.C. v Manitoba (Director of Child and Family Services) 2009 scc 30, para. 87. 220 It would have been better however if the court had explicitly acknowledged that coercion can be harmful. See New Zealand case Blair v Blair hc dun civ 2012-412-0051 para. 37 where this is implied. 221 See further Section 2 below. 222 See for example contact and residence cases such as Re S. note 73 and medical law cases such as a.c. v Manitoba (Director of Child and Family Services) 2009 scc 30, para. 87. 223 [2009] ewca Civ 445. 224 Note in the Hague Convention case law of Ireland discussed below in Section 3, nine year olds do not appear to be treated as ‘older’, highlighting the variability of the terminology

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to the care of his mother from that of his father, where he had resided briefly, ­stating that in this case the trial judge had ignored the views of the child.225 The appeal judgment held that the lower court did not give any “real effect” to those views. However it is difficult to see how courts can demonstrate that they are placing weight on views without actually holding those views to be determinative. The lower court had, after all “referred to them, accepted them … attempted to reason against [them]”.226 Without guidance on how to ‘weigh views’ and how to demonstrate that it has been done, it is difficult to see how courts can approach the matter in a way that comes across as any more logical and fair than this. Similarly in in Re M. (Republic of Ireland) the appeal court held that the trial court’s conclusion on the child’s wishes had been “much too narrow” – the wishes should have been determinative.227 In A. (A Child)228 an appeal court overruled an order in line with the child’s wishes – the trial judge was found to have come to “incompatible” conclusions about the child’s wishes which required better explanation.229 As there is such a lack of clarity on how judges are to ‘weigh’ children’s wishes, it is altogether unsurprising that different courts and judges would come to entirely different outcomes. There is little logic or basis apparent in how judges attribute ‘weight’. Often they are reduced to simply using adjectives, giving “significant weight”230 (because of the age of the child); “modest weight”;231 “little weight”232 (because of in the area. Aoife Daly, “Considered or Merely Heard? The Views of Young Children in Hague Convention Cases in Ireland” 12 Irish Journal of Family Law 16 (2009). 225 Re R. (Residence Order) [2009] ewca Civ 445, para. 58: “I respectfully conclude that the judge has erred in not giving any real effect to the child’s wishes expressed in this case. He has referred to them, accepted them, but thereafter essentially ignored them. He has attempted to reason against, and reject, the child’s (partial) rationalisation of them. He has in effect wholly discounted them. And yet, the child was a mature and thoughtful child close to the age of 10, who expressed his wishes rationally…” 226 Ibid. 227 Re M. (Republic of Ireland) (Child’s Objections) ( Joinder of Children as Parties to Appeal) [2015], para. 137. 228 [2013] ewca Civ 1104, para. 73. 229 The appeal court took issue with the fact that the judge at trial level felt the child’s views were not ‘valid’, that he accepted that the child had been affected by the mother’s position, but that the child’s views were nevertheless her own. These findings were “not readily compatible with each other” Ibid. 230 In G. (A Child: Intractable Contact) [2013] ewhc B16, para. 85. “G is now 13 years old. She is, therefore, at an age when the court is likely to place significant weight on her expressed wishes and feelings.” See also Australian case Robbins & Rosemount [2008] FamCA 486, para. 492. 231 See New Zealand case W. v N. hc chch civ 2006 409 683, para. 42. 232 Re M. (Republic of Ireland) (Child’s Objections) ( Joinder of Children as Parties to Appeal) [2015] ewca Civ 26. In the trial judgment, the judge stated that the age, ambivalence and

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the initial ‘ambivalence’ of the child). Without moving beyond such subjective terminology there can be little transparency and accountability when it comes to giving due weight to children’s views and wishes; and little clarity for judges as to how to do this. 1.3.6 Concluding Thoughts on Reasoning Concerning ‘Weight’ Hinton points to a ‘competence bias’ whereby adults focus on supposed developmental stages, determining whether children have inferior competence as compared with adults and constraining their participation accordingly.233 This is certainly to be seen in the case law where best interest decisions are being taken on behalf of children. There is an enormous emphasis on maturity and competence, without any certainty as to how these qualities should be defined, or whether they are the most desirable qualities in the first place. The overriding sense is that there is a ‘competence’ characteristic which courts expect to see in children in order for their wishes to be taken seriously. It is one which is difficult to pin down, but simultaneously one which judges are convinced that they understand. The lack of clarity renders it very easy to override children’s wishes, and indeed begs the question as to whether hearing children is even worthwhile if maturity and competence can be relied upon as catch-all excuses to dismiss what children want. crc Article 12 language actually encourages this undesirable situation. “Weight” is presented as a gift bestowed by adults giving what is “due”.234 It seems unsurprising then that in many circumstances, judges are perfectly content giving no weight to views.235 The courts have of course been at pains to avoid appearing to impose subjective values on parents in best interests cases, particularly where cultural issues and minority religions are in question,236 however often there appears to be a one-size-fits-all approach to the matter of children’s wishes – if they do not fit with the judge’s determinations, then wishes tend to be ‘outweighed’ by other considerations:

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understanding of the children meant that “I can place little weight on what they have said.” (Para 80). See also new Zealand case Thorpe v Barrett [2015] NZHC 3344, para 88. Tisdall cites Rachel Hinton, “Children’s Participation and Good Governance: Limitations of the Theoretical Literature”, 16 International Journal of Children’s Rights 285 (2008); ­Tisdall, note 3. Alderson, note 3. See Section 1.3.5.1 above. See for example Re G. (Children) (Religious Upbringing: Education) [2012] ewca Civ 1233; Re L. (Care: Threshold Criteria) [2007] 1 flr 2050 and Re T. (Minors) (Custody: Religious Upbringing) [1981] 2 flr 239.

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It wasn’t very fair ’cos they didn’t just look at our case, they looked at other cases and it’s like, we were different from other cases. They should look at each case individually rather than judging it on what’s already happened in other cases and if they’d [the judge] spoken to us all then they’d have realised that we were different from the other cases, but they didn’t.237 This girl makes an interesting point. The systems in which children law cases are decided are supposed to engage a specially-tailored, case-by-case approach. Yet there appears to be many assumptions employed when it comes to weighing children’s views. Judges utilise concepts that are undefined and unproven such as ‘competence’ and ‘manipulation’, assuming that they are commonly understood and accepted. There also appears to often be a starting point of failing to trust or believe children. These assumptions inevitably feature strongly in courts’ consideration of how to treat children’s wishes. Surprisingly, the downplaying of children’s wishes is not even primarily about ‘protecting’ them – it is instead based on the assumption that adults make decisions about children, regardless of what children want. 2

The Right to be Heard Has Benefited Some Older Children At the end he [the judge] definitely said “If Olivia doesn’t want to go she doesn’t have to go anymore”. But they said that Sarah has to go. I think it was ‘cos she was so small, ‘cos she is only six so she didn’t really get a choice to say whether she wants to go or she didn’t. But they said that I don’t have to go.238

As noted above, there are cases where it certainly appears as though children’s views are accorded significant respect by the courts. It is quite possibly the case that the Article 12 rhetoric about the importance of hearing children has been the reason for this. Yet it appears that in these types of cases, the children in question are almost inevitably ‘older’, in that they are adolescents. This is taken by courts to barely require pointing-out because it is so “obvious”.239

237 Seventeen year old girl with experience of family law proceedings, quoted in Douglas et al., note 1, at 87. 238 Eleven year old girl with experience of family law proceedings, quoted in Douglas et al., note 1, at 106. 239 Re R. (Child Abduction: Acquiescence) [1995] 1 flr 716 at 731.

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The ‘Older Child’ Preference That’s what I wanted, and that’s what I got. It all turned out OK, all right. That was great.240

A number of research studies indicate that the wishes of older children are preferred in best interest decisions, for example those in Norway,241 Michigan,242 and England.243 The preference is also very clear in the case law. There are a number of cases in which a degree of reverence for the older child is evident. In New Zealand case d.g.s.w. v R. the judge acknowledged the girl’s strong wish not to have contact with her mother, commenting: “I think it would be entirely inappropriate that this Court should be seen as foisting [contact] on her against her will. That would send quite the wrong message to this mature almost 15-year-old girl.”244 In Re S. (Contact: Children’s Views)245 the court emphasised that it would be counterproductive to force a 16 year old into access. In Australian case Triggs and Triggs246 the judge opted not to force the 15 year old son into re-establishing contact with his father, from whom he was estranged, on the basis that it “may cause an even more permanent deterioration in their relationship.” In some cases the degree to which the articulate teenager has impressed the judge is very notable. In Hague Convention case Re G. [2010] an appeal was made in respect of a decision to return two girls to Canada on the basis that the trial judge had not met the thirteen year old girl, who had a strong wish to remain in England. The appeal judge was clearly highly impressed after speaking with the girl: 240 Seventeen year old Croatian boy, party in ‘custody’ case, quoted in European Union Fundamental Rights Agency, Child-Friendly Justice: Perspectives and Experiences of Children Involved in Judicial Proceedings as Victims, Witnesses or Parties in Nine eu Member States (European Union Fundamental Rights Agency, 2017), at 33. 241 Skjørten, note 94, at 301. 242 Clarke, note 36. 243 Vanessa May and Carol Smart, “Silence in Court? Hearing Children in Residence and Contact Disputes” 16 Child and Family Law Quarterly 305 (2004), at 315. 244 He continued “that, not only is she not listened to, or, even if she is, her wishes are not respected.” d.g.s.w. v R. [1997] at 371. See Anne Smith and Nicola Taylor, “Rethinking Children’s Involvement in Decision-Making after Parental Separation” Paper presented at the Eighth Australian Institute of Family Studies Conference, Steps Forward for Families: Research, Practice and Policy (Melbourne, 12–14 Feb. 2003). 245 [2002] ewhc 540. 246 2015 Famca 538.

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A court needs to be alive to the difficulty of implementing a return order, where the subject of the return order is an articulate, naturally determined and courageous adolescent. Emily is such a child. I also was impressed by the cogency of her reasoning for rejecting Canada as a future for her, as a country where she could complete her education with the necessary sense of security and peace of mind. Everything which she said about the challenge of her education in her present secondary school, everything that she said about her reliance on the wider family and friends in Middlesbrough [English city], drove me to the conclusion that the judge might well have refusal return had he had the advantage which we have had today.247 The court allowed the appeal and set aside the order that the children be returned to Canada. From the text above, one can see that the reasoning for valuing her views was largely focused on the age of the child (“adolescent”), and her articulate and persuasive nature. Whilst the positive reaction of the judge is heartening, it is obvious that it is likely that younger, less articulate children will have a far smaller chance of being persuasive.248 Research indicates that articulate middle-class children are those most likely to be involved in community or political ‘participation’ activities and that children from less privileged groups are less likely to ‘participate’.249 It is inevitable that the same trend will be apparent for younger, less articulate children in best interest proceedings. Nordic countries are known for making very strong provision for children’s wishes in proceedings concerning them. Yet on closer inspection, the – albeit impressive – provision for children’s wishes really appears to apply solely to older children. Most Nordic countries treat children’s views as very significant from age 12, and in both Sweden and Finland, court orders in family law cases are not to be enforced against the wishes of children from this age.250 247 Re G. (Abduction: Children’s Objections) [2010] ewca Civ 1232, para 21. Similarly, see New Zealand case Y. v W., fc Christchurch, fp 009/1640/88, at 8–9. Cited in Taylor et al., note 74. 248 See also G. (A Child: Intractable Contact) where it was very clear that the child impressed the judge: “G is now 13 years old … She is an intelligent and articulate young lady.” G. (A Child: Intractable Contact) [2013] ewhc B16, para. 85. Contrast this with Hague Convention case Re M. where the boy was quite distraught in his interview and the judge ultimately ordered his return to France without hearing him further. M. v B. [2016] ewhc 1657. 249 Sandra Roe and Olivia McEvoy, An Audit of Children and Young People’s Participation in Decision-Making (Department of Youth and Children’s Affairs, Dublin, 2011). 250 See for example 1983 Act on Child Custody and Right of Access with regard to Children (laki 361/83 lapsen huollosta ja tapaamisoikeudesta, lag 361/83 ang. vårdnad om barn och umgängesrätt – “the 1983 Act”), Section  11. It is of note that the Act specifies that the

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In Norway, where from the age of 12 “considerable priority shall be given to [children’s] opinions,”251 Ryrstedt outlines that this priority is such that caselaw indicates that special circumstances must be present before the court can make a decision which goes against the wishes of children aged 12 or older.252 This assertion is confirmed by research conducted in the High Court in Norway which found that in practice, the views of children are treated as important from age twelve, and in fact most children receive the outcome which they have preferred from this age.253 The Representing Children Worldwide research demonstrates that a small number of states have age limits254 at which children’s wishes would have determinative weight on certain matters. This similarly involves older children: In Hungary, child protection placements were found to be dependent on the agreement of children from the age of 14. In Algeria, it was found that from the age of 13 children can decide whether to remain in foster care if their parents request their return. It seems that rebuttable presumptions in favour of children’s wishes are even more rare.255 In Australian family law there was previously a rebuttable presumption in favour of the wishes of the child from age 14 years, but the law was amended in 1983256 in accordance with (unsupported)

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c­ onsultation should be carried out in a tactful manner and should avoid causing harm to the child’s relations with parents. See C. v Finland Appl. No. 18249/02, judgment of 9 May 2006. See also Ryrstedt, note 44, at 191. Children Act (Norway) 1981, Section 31. See further Ryrstedt, note 44, at 192. Ryrstedt cites Peter Lødrup and Lucy Smith, Barn og Foreldre (6th edn, Gyldendal, 2004), at 125. Ryrstedt, note 44, at 195. See also Skjørten, note 94, at 296–7. Although importantly the authors emphasise that this may simply be because children’s views accord with other factors on which the decision was based. See Kristen Skjørten and Rolf Barlindhaug, “The Involvement of Children in Decisions About Shared Residence” 21 International Journal of Law, Policy and the Family 373 (2007), at 374–5. Skjørten and Barlindhaug cite Kristen Skjørten, Samlivsbrudd og Barnefordeling (Gyldendal Akademisk, 2005). Representing Children Worldwide, How Children’s Voices are Heard in Protective Proceedings, Summary by Chart. Available at: http://www.law.yale.edu/rcw/rcw/about.htm (last accessed 18 July 2014). It is of note that although there is as yet no legal rebuttable presumption in favour of the wishes of adults who lack capacity in England and Wales, it has been noted that when making best interests decisions courts treat the situation as if significant justification is required before those wishes are departed from. See Alex Ruck Keene and Cressida Auckland, “More Presumptions Please?” 3 Elder Law Journal 293 (2015). A Joint Select Committee on Family Law recommended the removal of this presumption and this was then carried-out in the 1983 amended legislation. The Committee gave as its reasoning the arguments in submissions it received; arguments that children are not mature enough at 14 to make decisions as well as adults could, and that such a ­provision

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arguments that children are not mature enough at 14 to make decisions as well as adults, and that the provision may place pressure on children.257 It proves that although the wishes of ‘older’ children will be preferred, what constitutes or is considered ‘older’ can vary, even shift with time. It seems inevitable that, at least to some degree, older children will have greater ‘weight’ accorded to their wishes. Yet as was outlined in Chapter 3, children’s decision-making abilities are not necessarily determined by biological age – context, information, experience, and support all combine to dictate a child’s abilities in this regard. If one factor has to be chosen which is most relevant, it is probably the context in which the decision is being made.258 Yet by far the most relevant factor which the courts consider is age – the older a child is, the more ‘weight’ their views will have. 2.2

Age Does Not Guarantee Influence From my personal experience the court don’t listen to you … regardless of what you say, they didn’t listen to me.259

The age of the child does not always mean that their views will hold great ‘weight’ or be influential, however. For one thing, in many circumstances there is no means available to hear the views of the child anyway. In my research in Ireland, for example, there were significant decisions taken – a guardianship order for a stepfather of 16 year old twins for example – without any reference by the court to the wishes of these children, who were in fact close to adulthood.260 The court could have, at the very least, asked the adult parties about the wishes of these children. Even where older children have been heard, it may make no difference to the outcome. In Re S. (Contact: Intractable Dispute)261 an appeal court held that the trial judge had erred in this case in making the implementation of

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would place pressure on children. Joint Select Committee on Family Law, Family Law in Australia (Vol 1 and 2), Parliamentary Paper Number 150/1980, tabled 1 Jul. 1980 (31st Parliament). Ibid, at 53. See Chapter 3, Sections 7.3 and 7.4. Seventeen year old girl with experience of family law proceedings, quoted in Douglas et al., note 1, at 87. Court outside Dublin, 6 Oct. 2008. Daly, note 193, at 345. [2010] 2 flr 1517.

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a contact o­ rder contingent on the wishes of children aged 12 and 13. The children’s wishes were to be trumped in this case by their welfare, the appeal court opined, and “children of his age have to have their lives regulated by adult judgment.”262 In an Irish Hague Convention case the judge apparently stated: “I myself have returned a teenager to care [of a parent] in the Netherlands despite her very firm, and very forcefully expressed objections…”263 In child protection cases, older children will particularly struggle to be successful in exercising influence. As outlined above, in P.-S. (Children)264 the 15 year old boy, M, had wished to testify at the protection proceedings to appeal the care order that he was under. He went on to appeal both the care order and the decision not to permit him to testify. There is a welfare checklist which is provided in the relevant legislation – the Children Act 1989, Section 1(3) – which must be considered by courts when best interest decisions are being made about a child.265 The factors listed are in no order of priority and include children’s “wishes and feelings”, needs and characteristics. M’s legal representative argued that a rebuttable presumption existed that should dictate that the views of older children should prevail in this exercise of considering the various factors.266 The court disagreed, responding: Is there a rebuttable presumption that the mature child’s wishes should prevail? In my judgment the answer is certainly not. The checklist sets out a range of factors to be taken into account, only one of which is the wishes and feelings of the child having regard to his age and understanding. The weight to be given to that factor will vary from case to case.267 The appeal judge agreed with the decision at trial, that “very powerful evidence of harm” is not required in order to override the wishes of a child of M’s age.268 The welfare principle prevails in all care cases, and “sub-tests” would not be

262 Para. 7. See also in Canada Droit de la famille 101456, 2010 QCCS 2786 and D’Abruzzo v Giancola, 2017 ONSC 2349. 263 U. v U. [2011] iehc 268, paras. 30–1. 264 [2013] ewca Civ 223. See Chapter 4, Section 3.3.4 for consideration of the due process element of the case. 265 See further Chapter 2, Section 4. 266 P.-S. (Children) [2013] ewca Civ 223 para. 2. 267 Ibid, para. 43. 268 Ibid, para. 44.

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appropriate.269 Courts appear therefore to be insistent on retaining discretion rather than placing any strictures on how and whether they override children’s wishes in best interest decisions – even when the child is an adolescent of 15 years, and even where the likely harm appears very low as it did in the matter of the video testimony. 3

Younger Children’s Wishes Devalued Actually I think a five-year-old knows just as well what they want as a 15-year-old.270

The obvious downside to the heartening prioritisation of the wishes of (some) older children is that those of younger children will inevitably be devalued. This trend is apparent in the case law and research. Children’s credibility decreases in the eyes of the courts in line with their age. Of judges interviewed in Michigan in the us271 74% of respondents reported that they consider the wishes of teenagers to be ‘very’ or ‘extremely’ significant, but only 30% would ascribe that same weight to the views of children aged 11 to 13 years. The vast majority of judges stated that they would not give any weight to children under five years, many citing their understanding of children as impressionable and manipulable. In Irish case F.G. v Child and Family Agency and Ors, social work authorities were criticised for relying on the wishes of children in care aged four, eight and 10 years (“very young children” according to the court, though arguably this term does not fit a 10 year old) to restrict the mother’s access visits with them.272 Research in England also indicates that the wishes of younger children are readily disregarded.273 It seems that decision-makers often feel it is acceptable to dismiss the wishes of younger children solely on the basis that children are too young to be taken seriously, without any further justification. Research in England points to the difficulty of determining the reasons on which courts rely when they override 269 Ibid. Notably the welfare principle did not necessarily apply here in what was in fact an evidentiary issue, yet the court saw fit to nevertheless make the broader point that there would be no gloss on the welfare principle, even for older adolescents. 270 Seventeen year old girl quoted in McLeod, note 22, at 45. 271 Clarke, note 36. 272 f.g. v Child and Family Agency and Ors [2016] iehc 156, para. 46. 273 May and Smart, note 243, at 315. See also in New Zealand case Burnett v Burnett [2017] NZHC 417, para. 84 the devaluing of the child’s views on the basis that she was aged six years.

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the wishes of younger children.274 Likewise in Ireland a 2009 analysis of Hague Convention judgments established that, although the views of older children (that is those over 12 years) were treated seriously, often resulting in swaying the decision,275 the views of younger children were being dismissed without much in the way of explanation.276 In particular it identified three cases in the previous three years which had very similar features, involving the expressed wishes of two children aged nine years and one aged 10.277 All had been in Ireland for a number of years; all wished to stay and social reports established no undue influence on their views. Yet return orders were made in all three cases. Few factors were provided in order to illuminate the decision-making process concerning the children’s views. It appears their young age was deemed sufficient justification for overriding their views and ordering their return. In one case the slight developmental delay of the child was cited,278 in another the long term interest of a relationship with a father was deemed to outweigh the child’s objections to return.279 It seemed a trend had emerged in the courts whereby children of this age, regardless of their opinions, would be considered insufficiently mature for their views to be given significant weight. Or perhaps any weight. It is difficult to tell the difference when the outcome is still “no”.280 This points to a particular need for greater scrutiny of how courts approach the wishes of younger children. There is much evidence that, although the wishes of older children will not necessary prevail,281 there is a discourse that they are important, and that overriding those wishes requires justification. However with younger children there is no such discourse. There is a clear sense that it is assumed reasonable to devalue and override children’s wishes simply on the basis that they are young. 4

Why the Right to be Heard Gives Children Little Influence on Outcomes It’s not that they don’t listen, it’s just that it doesn’t make any difference.282

274 Ibid. 275 See for example m.w.p. v t.k.p. [2007] iehc 145; f.n., e.b. v c.o., h.o., e.k. [2004] iehc 54; r.w. v c.c. [2004] iehc 194. 276 Daly, note 224. 277 K. v K. [2006] iehc 277; R. v R. [2008] iehc 162; D. v D. [2008] iehc 176. 278 D. v D. [2008] iehc 176. 279 K. v K. [2006] iehc 277. 280 Daly, note 224. 281 See for example P.-S. (Children) [2013] ewca Civ 223. 282 Eleven year old boy cited in Mckay, note 15, at 4.

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A Failure to Accept the Limited Ability to Predict ‘Best Interest’ Outcomes There is a clear sense that children are expected to reason, to be sensible in their predictions of the future, and to be forward-thinking in terms of the consequences of choices they might make.283 Yet as noted in Chapter 2 there are many uncertainties about how or whether to generalise about what leads to ‘good’ outcomes for children, and there is little empirical research on how to improve outcomes.284 We cannot even agree on which values are important.285 It has been suggested that perhaps judicial decision-making cannot necessarily determine the ‘truth’ or a ‘correct’ outcome in family law cases286 and that instead a good decision-making process should be the aim. Perhaps it is important to recognise the limitations of the court to predict287 and accept that outcomes will involve both gains and losses.288 Intact families make such decisions outside of the courts, for example on such questions as whether the family should move to another area in order for a parent to pursue an attractive job opportunity. Moloney concludes that, “as in democratic decision making, the best one can hope for is the least worst option.”289 Ensuring that the wishes of children are prioritised in proceedings which are, after all, supposed to be about their best interests, would seem like the obvious step towards improving the process. Yet, as P.-S. (Children) demonstrates, there is a strong sense that courts are determined to retain discretion in these decisions. Raitt notes that “[t]he

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283 In Re S. (Minors) (Abduction: Acquiescence) [1994] 1 flr 819, 827 the court states that: “When Article 13 speaks of an age and maturity level at which it is appropriate to take account of a child’s views, there should be a level of “discernment which a mature child brings to the question’s implications for his or her own best interests in the long and the short-term.” 284 Cora Bartelink Tom van Yperen and Ingrid ten Berge, “Deciding on Child Maltreatment: A Literature Review on Methods that Improve Decision-Making” 49 Child Abuse and Neglect 142 (2015). See also Elspeth Kirkman and Karen Melrose, “Clinical Judgement and Decision-Making in Children’s Social Work: An Analysis of the ‘Front Door’ System” ­(Department for Education [England and Wales], 2014), at 4–5 (“there is an almost total lack of robust evidence available or given to social workers on what works in particular contexts”) and Robert Mnookin, In the Interests of Children: Advocacy, Law Reform and Public Policy (WH Freeman, 1985) at 16–7. 285 Thomas and O’ Kane, note 27. 286 Lawrence Moloney “The Elusive Pursuit of Solomon: Faltering Steps toward the Rights of the Child” 46 Family Court Review 39 (2008). 287 Ibid. 288 Ibid, at 45. 289 Ibid.

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t­erritory of judicial discretion is one that is closely defended, particularly by the judiciary, and legislative attempts to limit discretion are usually met with resistance.”290 It seems surprising that, save for Nordic countries (and briefly Australia), no other nations have considered prioritising children’s wishes over other factors. Children’s wishes are to be treated the same as anything else. It does not seem like a radical suggestion that children’s wishes could be considered the most important factor, particularly where there remains the option to override their wishes where those are outweighed by another factor like ‘protection’. And yet, this does not even appear to have been so much as considered outside of these examples. The priority accorded to autonomy in liberal democracies is partly based on the belief that we should refrain from interfering in the decisions of others as we cannot assume that one can judge a better or worse way of life. The libertarian argument leads us to the question, if we have such limited ability to predict the future and the consequences of our decisions, then how can we legitimately demand that children do so to a greater extent than adults?291 This is what the courts appear to expect of children in the case law considered above when a child’s maturity, competence and rationality are scrutinised. As opposed to the present-oriented approach to adults in medical law there is a future-orientated, protectionist approach taken to best interest decisions about children,292 the consequences of which are that children are not permitted to make decisions which are seen by judges as contrary to a mainstream conceptualisation of long-term best interests, even if it reflects instead the reality of the child’s present situation or wish.293 The mainstream assumption, for example, is that contact with both parents is desirable for every child unless there are dramatic factors (as determined by adults) inclining against that. Therefore, even if the child does not want contact with a resident parent, their long-term interests dictate they must have that contact anyway, because it is likely that this will lead to long-term gain. This approach is seen clearly in Re C. (A Child) (Suspension of Contact):294 “The court should take both a mediumterm and long-term view and not accord excessive weight to what appear likely 290 Fiona Raitt, “Judicial Discretion and Methods of Ascertaining the Views of a Child” 16 Child and Family Law Quarterly 151 (2004). 291 Laura Purdy, In Their Best Interest?: The Case Against Equal Rights for Children (Cornell University Press, 1992), at 74. 292 Kirsty Moreton, “Gillick Reinstated: Judging Mid-Childhood Competence in Healthcare Law: An nhs Trust v abc” 23 Medical Law Review 303 (2014). 293 Moreton, ibid. 294 Re C. (A Child) (Suspension of Contact) [2011] ewca Civ 521.

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to be short-term or transient problems.”295 There is likely some influence from those insisting that ‘parental alienation’ is a syndrome which must be tackled by forcing children into relationships which they do not want.296 This is in spite of the fact that research indicates that children who are forced to have contact with fathers against their will are less likely to have positive relationships with them later in life,297 and that, in cases where children resist access with a parent, the relationship is usually repaired eventually.298 There is a sense, therefore, that children must be made to suffer in the present in order to gain supposed future benefits. In the Scottish case of White v White299 and in England and Wales M. v B.300 for example, the courts accepted the distress of children about being forced into contact and residence (respectively) as genuine, but emphasised the belief that distress would decrease as relations normalised. These were assumptions on the part of the court rather than predications based on evidence. The failure to rely on any sort of evidence is really notable – Tisdall points to an approach in Scotland that judging what is in a child’s best interests means determining the child’s best interests in the future, an approach described by the sheriff as ‘common sense’ in Q. v P.,301 and something requiring no particular expertise.302 In some cases, courts insist on disturbing changes of residence from ­primary carer to a ‘hated’ parent. In Re S. (Transfer of Residence) the judge ordered a change of residence from mother to father, under circumstances where physical force would likely have to be used to get the almost 12 year boy to comply. 295 See also A. (A Child) [2013] ewca Civ 1104, para. 74 in which the appeal court determined that the trial judge had focussed too much on the present. 296 See for example Richard Gardner, “Should Courts Order pas Children to Visit/Reside with the Alienated Parent? A Follow-up Study” 19 American Journal of Forensic Psychology 61 (2001). 297 Ann O’Quigley, Listening to Children’s Views: The Findings and Recommendations of Recent Research (Joseph Rowntree Foundation, 2000); Felicity Kaganas, “Contact, Conflict and Risk” (1999), in Shelley Day Sclater and Christine Piper, eds, Undercurrents of Divorce (Dartmouth, 1999) and Heather Smith, Children, Feelings and Divorce: Finding the Best Outcome (Free Association Books, 1999). 298 Janet Johnston, “Children of Divorce Who Refuse Visitation” (1993), in Charlene Depner and James Bray, eds, Nonresidential Parenting, (Sage, 1993), at 124 and Judith Wallerstein and Joan Kelly, Surviving the Breakup: How Children and Parents Cope with Divorce (Basic Books, 1980). 299 2001 slt 485. 300 [2016] ewhc 1657. 301 Q. v P. 2016 Fam lr 54, para 40. 302 Tisdall, note 3.

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As noted previously,303 the boy ended-up in foster care with clinical depression, with all efforts to reconcile father and son ultimately abandoned.304 At trial level there had been much consideration of harm and the extent to which the boy would suffer now and in the future. Present suffering was seen as the least detrimental option: “[T]raumatic though it may be in the short term, it is in the best interests of S’s long-term welfare for him now to live with his father.”305 This sense of the acceptability of suffering as a child in order to become a more fully-rounded, well developed (conforming) adult is prevalent, even in the absence of any clear evidence about outcomes. 4.2

Courts are Not Parents: The Force of Law You chose not to talk to your father. You defied a direct court order. It’s direct contempt, so I am finding you guilty of civil contempt.306

One major obstacle to respect for children as autonomous individuals is the fact that courts appear to perceive themselves as operating ‘as parents’307 when they are making best interest determinations. In one case in England and Wales for example the judge described it as a question of: “What is the task of a judge, acting as a ‘judicial reasonable parent’ and approaching things by reference to the views of reasonable parents on the proper treatment and methods of bringing up children?”308 It is understandable that the court interprets its role as equivalent to that of the parent, considering a ‘best interest 303 See note 73. 304 See case review when forced transfer of residence failed: Re S. (A Child) [2010] ewhc B2, para. 37. It was noted that, at each contact visit, the boy would sit “with his head in his lap and his fingers in his ears” (paras. 17 and 19) and he was “experiencing suicidal ideation.” 305 Re S. (Transfer of Residence) [2010] ewhc 192, para. 102. In the final hearing the court noted at para. 60: “Whether any other approach would have been more successful it is impossible to know. At this stage, conjecture on that issue is as unwise as it is unprofitable.” Re S. (A Child) [2010] ewhc B2. 306 See court transcript: Eibschitz-Tsimhoni v Tsimhoni State of Michigan 6th Judicial Circuit Court for the County of Oakland File No. 2009-766749-DM. Available at: https://www .scribd.com/document/271061113/Tsimhoni-court-hearing-transcript-REDACTED (last accessed 8 Mar. 2017), at 5–6. 307 The court used the phrase “judicial parent” in Re G. (Children) (Religious Upbringing: Education) [2012] ewca Civ 1233, para. 80. 308 Ibid, para. 79. In J. v C. [1970] ac 668, at 722 the court also stated that the court must determine outcomes with reference to the changing views of people and parents about how to bring up children: “that is the model which the judge must emulate for … he must act as the judicial reasonable parent.”

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decision’ is being made which in other circumstances would be made by a parent. However judges are not comparing like with like. The comparison does not stand up to scrutiny. For one thing, the judge is not a parent; someone who generally knows their child better than anyone else; someone who is generally inherently emotionally interested in securing the child’s interests. The judge is something different altogether – a representative of the state. The decision is not being taken on the basis of the give and take of family life, or even by the authoritative (perhaps even threatening) parent. No, it is by court order; something far more imposing and intimidating. In England and Wales, as noted in A. (A Child)309 when a new provision of the Children Act 1989310 came into force, a notice warning of the consequences of failing to comply must be attached to all child arrangement orders: “The purpose of that provision seems plain; it is to alert the parties to the fact that all contact orders are potentially enforceable against those who may act in breach of them…”311 The primary fear for children is how the official nature of best interest decisions, and the orders in which they manifest, will affect their parents. In child contact cases courts face problems where court orders are not followed; sometimes this is because children refuse to comply with them.312 Children regularly report fearing the authority of the court, and the perceived potential consequences for parents: “Ian was asked why he felt scared and replied, ‘They would take him [my dad] to prison.’”313 Sometimes these fears are justified as contempt of court is a real possibility for parents defying, or otherwise falling short, of activities directed by court orders.314 Yet the potential for the use of force in respect of children themselves is sometimes evident too. This usually arises where children are refusing ­contact 309 [2013] ewca Civ 1104. 310 Section 11I. [Child arrangements] orders: warning notices Where the court makes (or varies) a [child arrangements] order, it is to attach to the [child arrangements] order (or the order varying the contact order) a notice warning of the consequences of failing to comply with the [child arrangements] order. 311 A. (A Child) [2013] ewca Civ 1104, para. 13. 312 Liz Trinder et al., “Enforcing Child Contact Orders: Are the Family Courts Getting it Right?” 43 Family Law Journal 1105 (2013). 313 Eight year old boy with experience of family law proceedings, quoted in Douglas et al., note 1, at 80. 314 Imprisonment of primary carers in such circumstances is rare in England and Wales, but it can occur. See for example Re S. (Contact Dispute: Committal) [2004] ewca Civ 1790. In one study the case detail quoted in Douglas et al., “The judge commented that this was the final order and if the mother did not comply she would face prison (‘I do not issue idle threats’).” Case details described in Douglas et al., note 1, at 105.

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with a non-resident parent. The claim is frequently raised by applicants that respondent states breached their echr rights where police were not used to enforce contact against children’s wishes.315 To examine the reality of what such force can mean, in Re S. (Transfer of Residence)316 where the court was considering the practicalities of implementing a court order for a change of residence against the wishes of the 12 year old boy, the need for the use of force is referenced four times.317 The judge ultimately decided to implement the order.318 It is noted above that the order was ultimately abandoned (the boy was placed in foster care as a compromise), which is somewhat of a relief.319 It is chilling to think of the physical altercation which might have ensued had that transfer materialised. There are occasionally stunning examples from the us of the full force of the law being deployed against children where they refuse to obey court orders for contact. It has led to children being incarcerated in some instances.320 In a 2015 case, children aged nine, 10 and 14 were sent by the judge to a facility for youth offenders for refusing to attend contact visits with their father.321 The eldest was told that he was “a defiant, contemptuous young man”322 and that he would remain incarcerated until he graduated from high school (the children

315 See for example Malec v Poland 28623-12 [2016] echr 588. Children are also sometimes threatened by courts with police to enforce contact or residence orders. See Canada cases K.D.S. v G.M.P., 2017 ONSC 212 and Millar v Williams, 2009 CanLII 41350 (ON SC). 316 [2010] ewhc 192. 317 Ibid, paras. 49, 54 and 92. 318 The court notes the concerns of the court expert on the force which will likely be necessary to achieve the transfer. It states that “[t]he mechanics of achieving a transfer of residence are also problematic … ‘it is inevitable that any attempt to transfer the residence of S would also require the use of an unacceptable degree of force by either a professional or a family member’.” Ibid, para. 49. 319 Re S. (A Child) [2010] ewhc B2. 320 There are at least three known cases in which incarceration occurred – In Re Marriage of Marshall, 278 Ill.App.3d 1071 (1996) and those reported in Jameson Cook, “Teenager Incarcerated for Refusing to Visit His Father” Macomb Daily (21 Nov. 2009) Available at: www.macombdaily.com/articles/2009/11/21/ (last accessed 12 Dec. 2016); and Bill Laitner, “3 Kids Ordered to Juvenile Hall After Refusing to Have Lunch with Dad” usa Today (9 Jul. 2015). Available at: http://www.usatoday.com/story/news/nation/2015/07/09/judge-jails -kids-refusing-lunch-dad/29940397/ (last accessed 12 Dec. 2016). 321 See Eibschitz-Tsimhoni v Tsimhoni transcript, note 306, at 5. See further Laitner, ibid. 322 The boy was also told by the judge that it was his own fault that he would be going to the bathroom in public and that the mother would not be allowed to visit him or the other children in the detention centre. Ibid, at 7.

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were ultimately released after 17 days).323 There have also been some seriously heavy-handed measures used in the us to force medical treatment on children such as fifteen year old Benito who was refusing a third liver transplant: “Florida, under its child protection legislation, had five police officers forcibly remove him from his home and take him to hospital to have treatment imposed” and Lee, a girl of the same age: “To hospitali[s]e her, seventeen police officers, six social workers, and paramedics broke through the door of the family home and transported her, strapped to a gurney.”324 The courts fail to recognise the incomparability of best interest decisions to other types of orders made by the court. No other such decisions – decisions about whether an individual should have to see someone, or live with someone and so on – are imposed save for adults who lack capacity (and in these cases the paternalism is treated with the utmost seriousness).325 In re D. (A Child)326 it was stated that: “Just as the adults may have to do what the court decides whether they like it or not, so may the child.”327 Yet children’s position in such cases is not the same as adults. In best interest proceedings, courts are making decisions on behalf of children which adults would make themselves. Adults never experience this level of paternalism. Where adults are ordered into action by a court it is not because they are being compelled into a living situation or a relationship apparently for their own good. It is instead because another’s rights require it (for example the resident parent forced to permit a contact visit by a non-resident parent); or because there is some other obligation in law which the court identifies or interprets. There is no other order like a best interest decision against a child’s wishes. Even if one does accept that the judge is the parent equivalent, there is still the matter that modern family life does not always involve a one way street of 323 Ibid. The judge was also found guilty of misconduct for misuse of the contempt of court rule – as of 2017 she is appealing that decision. See John Wisely, “Judge Lisa Gorcyca ­Misconduct Case Heads to Michigan Supreme Court” Detroit Free Press (19 Jan. 2017) Available at http://www.freep.com/story/news/local/michigan/oakland/2017/01/19/judge-lisa -gorcyca-misconduct-case/96402972/ (last accessed 8 Mar. 2017) and Steven Pepple, “Judge Lisa Gorcyca Guilty of Misconduct in Child Custody Case” Detroit Free Press (1 Jul. 2016). Available at: http://www.freep.com/story/news/local/michigan/oakland/2016/07/01/ judge-lisa-gorcyca-guilty-misconduct-child-custody-case/86606918/ (last accessed 30 Nov. 2016). 324 In David Day, “The Capable Minor’s Healthcare: Who Decides?” 86 Canadian Bar Review 379 (2007). 325 This matter is considered in detail in Chapters 1 (Section 2.2) and 2 (Section 5). 326 [2006] ukhl 51. 327 Ibid, para. 57.

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parents telling children what to do, and children subsequently obeying these instructions. The judge in Re G.328 mentions the “reasonable judicial parent” but what form of parenting is “reasonable”? Should parents be perceived as (and encouraged to be) authoritarian, disciplinarian, forceful in order to achieve the best for their children? Should they instead be more encouraging, assisting children to make decisions? What ideal does the liberal democracy desire of parents and children and how should courts reflect this when ­making family law orders?329 First, there is extensive research, outlined in Chapter 3, that authoritarian parenting leads to significantly inferior outcomes for ­children – social, emotional, educational – than ‘autonomy supportive’ parenting in which adults work with children to understand and solve problems.330 This strongly indicates that authoritarian-style parenting should not be considered the preferable model. Secondly, research in 2005 into decision-making in modern families in the uk331 demonstrated that family decision-making tends “very strongly to the democratic” on both minor332 and major decisions: Holly: All of us decided to move ’cos we didn’t like where we were staying. Int.: Did you all go together and look at other houses? Holly: Yeah. My mum said, ‘If they choose this one and I choose that one, then I’ll just go with their decision.’ Int.: So the house you’re moving to, did everyone like it? Holly: Most of us. Int.: Who was less keen? Holly: My mum.333 328 Re G. (Children) (Religious Upbringing: Education) [2012] ewca Civ 1233, para. 79. 329 In Re G. the court referred to “equality of opportunity”; “aspiration” and “maximising ­opportunities” as fundamental values in England. Ibid, para. 80. Note however the insistence on authoritarian parenting by courts in for example H.(Children) [2014] EWCA Civ 733 and in Canadian case K.D.S. v G.M.P. , 2017 ONSC 212. 330 See Chapter 3, Section 3. 331 Ian Butler, Lesley Scanlon, and Margaret Robinson, Children and Decision Making (Jessica Kingsley Publishers, 2005). 332 The authors (at 10) cite the example of deciding where to go for a treat, outlined by Amy, aged nine : Int.: Who chooses where you go? Amy: We all decide together. Int.: What if all three children want something different? Amy: We decide on one and on the next week we do the other and the week after that we’d do the other. 333 Eleven year old girl, quoted in Butler, Scanlon, and Robinson, note 331, at 12.

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It was found that, although children accepted the legitimacy of parents to make the final call should they (the parent) choose to, mutual trust and negotiation were the prevalent features of decision-making.334 As noted in C ­ hapter  3, children have very modest approaches to what their role should be in ­family decisions, but in general f­ amily life those types of decisions appear to be quite democratic. Therefore a court order compelling activity against the wishes of the child is quite likely not a case of the court acting like a “reasonable ­parent” – a parent would be less likely to engage in such coercion. Courts must accept that they are not parental equivalents, they are representatives of the state. There is little room for the negotiation, the give and take of family dynamics, when it comes to court orders. This is why courts ought to be very, very reluctant to make an order contrary to the wishes of a child. 4.3

The ‘Right to be Heard’ Assists in Upholding Traditional Power Bases I felt quite angry with [children’s guardian] ‘cos she hadn’t listened to what I’d said and she made it sound like I wanted to talk to my dad, which I didn’t … whatever she’d say I would make it clear that I didn’t want to see him, but I think after a while she kind of still didn’t understand.335

Courts have almost unlimited discretion as to whether to hold a child’s wishes to be determinative or not. When one examines the most common scenarios in which children’s wishes are overridden, it appears that powerful actors will be the beneficiaries of this discretion. 4.3.1 The Power of the State is Upheld The right to be heard appears to be selectively employed in favour of the preferences of children in some care cases. Where children in care resist contact with birth families and where this is consistent with what professionals have deemed best, children’s wishes tend to be used as “leverage” in favour of authorities’ determinations.336 In contrast, it seems that children may struggle to 334 Butler, Scanlon, and Robinson, note 331. See similar findings in Pamela Giustinelli, “Group Decisiontcomes: Unpacking Child–parent Choice of the High School Track.” 57 International Economic Review 573 (2016), at 575 and Anyck Dauphin, AbdelRahmen El Lahga, Bernard Fortin and Guy Lacroix, “Are Children Decision-Makers within the Household?” 121 The Economic Journal 871 (2011), at 901. 335 Eleven year old girl with experience of family law proceedings, quoted in Douglas et al., note 1, at 108. 336 Winter, note 26. See Meredith Kiraly and Cathy Humphreys, “Perspectives From Young People about Family Contact in Kinship Care: ‘Don’t Push Us: Listen More’” 66 Australian

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assert influence on the matter of retaining contact with birth families, something which they emphasise as of great importance to them.337 There is evidence from across jurisdictions of selectivity in instances where children’s wishes are upheld in the child care context. For example it has been noted in England and Wales,338 and in Norway339 that judgments are most likely to be in line with children’s wishes if children are in state care and do not want to move.340 Likewise in my court observations in Dublin, in every child care case observed which related to children opposing access visits, the judgments made were in line with the wishes of the children (in contrast the wishes of children against contact counted for very little, if anything).341 P. (A Child)342 is a good reported case example of this phenomenon. The mother of a 12 year old boy in care was seeking contact with her son. The boy stated that he wanted less time with mother, but his mother disputed that this was what he really wanted. The judge stated: “I am satisfied that P is able to and has made his wishes about contact with his mother more than clear…”343 The lack of trouble which the judge had in taking the boy’s wishes at face value contrasts distinctly with the suspicion with which children’s wishes are viewed in many of the cases above considered in Section 1.3.3. Judges seem to consistently incline against the wishes of children in care who are seeking contact with their parents, however, which is inevitably being sought by the child because child care authorities are not facilitating it, or insufficiently facilitating it, in the eyes of the child. In one case observed in D ­ ublin, child care authorities were against contact between father and his daughter in care (who was “very keen” for contact) as allegations of abuse had been made against him by another child.344 Her guardian ad litem suggested that they have limited contact, for example by phone call or letter, but the judge Social Work 314 (2013) however in which some children in care report enforced contact visits. 337 See for example European Commission, Eurobarometer qualitative study – The rights of the child: Aggregate report, and Department of Children and Youth Affairs, Listen to our voices: A report of consultations with children and young people living in the care of the state (Department of Children and Youth Affairs, 2011). 338 For a case example see P. (A Child) [2016] ewca Civ 1127, para. 23. 339 Vis and Fossum, note 29. 340 Vis and Fossum, note 29, at 2101. See also Norwegian case of HR-2006-01818-A (Supreme Court, 25 October 2006). 341 Daly, note 193. 342 [2016] ewca Civ 1127. 343 Para. 50. 344 Dublin District Court 20, 2008. Daly, note 193, at 333.

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refused the request because a full care hearing was due to be held in five weeks’ time, at which point the issue of contact would be examined in detail.345 The inclination of the judge in favour of protection, and the failure to make an interim order, seemed disproportionate to the modest level of (indirect) contact sought by the girl. The unlimited discretion of the courts, and the lack of methodology to ‘weigh’ children’s wishes, means that those wishes are unlikely to triumph where they incline against the determinations of state authorities. 4.3.2

Courts are Implementing Beliefs about “Contact at all Costs” Which Benefits Parents over Children I mean, he took my sister. You can’t just [build] your trust up, like from that to full, can you? So you’ve got to take it slowly instead of just going straight to six times a year.346

Another major factor which children struggle against is the ‘contact presumption’347 in private cases – the presumption that it is always best for children to have contact with both parents. A consistent matter on which children have strong wishes is where they do not wish to see a non-resident parent. This is perhaps the scenario in family law where children are most likely to have their wishes overridden. It preserves the power and status of parents over children’s wishes and consequently sometimes it seems over children’s interests also. It is important to remember of course that most families manage to make their own arrangements for children after family breakdown.348 There are plenty examples of amicable, loving families who establish positive, flexible arrangements for their children: I don’t have problems with the fact that they are divorced, they arranged everything nicely and I feel ok with that.349 Yet the 345 Ibid. 346 Eleven year old girl with experience of family law proceedings, quoted in Douglas et al., note 1, at 69. 347 For consideration of this concept see further Liz Trinder, “Climate Change: The Multiple Trajectories of Shared Care Law, Policy and Social Practices” 26 Child and Family Law Quarterly 30 (2014) and Sonia Harris-Short, “Resisting the March Towards 50/50 Shared Residence: Rights, Welfare and Equality in Post-Separation Families” 32 Journal of Social Welfare and Family Law 257 (2010). 348 Janet Johnston, “Children of Divorce Who Reject a Parent and Refuse Visitation: Recent Research and Social Policy Implications for the Alienated Child” 38 Family Law Quarterly 757 (2005), at 757. 349 Fourteen year old boy in Belgium, quoted in Sofie Maes, Jan De Mol and Ann Buysse, “Children’s Experiences and Meaning Construction on Parental Divorce: A Focus Group Study” 19 Childhood 266 (2001), at 274.

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scenario whereby children resist contact with a non-resident parent is a common feature of the case law. This conflicts with the fact that ensuring contact is a distinct aim of the court in family law cases. A presumption of contact, whether based in law or not, is applied by the courts350 on the basis that contact is inherently beneficial for child welfare and is ‘almost always’ in the best interests of the child,351 despite the fact that it is not actually empirically clear that this is the case.352 This is a highly gendered issue, as primary carers are usually mothers.353 It makes sense that, on family breakdown, it is the non-resident parent that children are more likely to have an unfulfilling relationship with, as they will inevitably have their strongest attachment with their primary carer. That the p ­ rimary carer is usually their mother is a fact arising from biology (mothers give birth and therefore usually have the strongest bond with a baby which continues through childhood) and social norms (traditionally mothers engage in primary child care). Of course, this is changing to some extent, with fathers taking greater child care responsibility,354 though this shift tends to be greatly exaggerated.355 350 Macdonald points to the fact that in England and Wales, for example, contact is denied in less than 1% of all cases in which it is sought. Gillian Macdonald, “Hearing Children’s Voices? Including Children’s Perspectives on their Experiences of Domestic Violence in Welfare Reports Prepared for the English Courts in Private Family Law Proceedings” 65 Child Abuse and Neglect 1 (2017). In the Swedish context see Anna Singer, “Voices Heard and Unheard: A Scandinavian Perspective” 36 Journal of Social Welfare and Family Law 381 (2014). 351 In Re C. (A Child) (Suspension of Contact) [2011] ewca Civ 521, para 47, the court stated: “Contact between parent and child is a fundamental element of family life and is almost always in the interests of the child.” See also Re O. (A Minor) (Contact: Imposition of Conditions) [1995] 2 flr 124. 352 Gilmore et al. reviewing the literature point to a lack of clarity as to whether contact with a non-resident parent is a predictor for child-well-being. Stephen Gilmore et al., “Contact/ Shared Residence and Child Well-Bring: Research Evidence and its Implications for Legal Decision-Making” 20 International Journal of Law, Policy and the Family 344 (2006). 353 Maebh Harding and Annika Newnham, How Do County Courts Share the Care of Children Between Parents? (Nuffield Foundation, 2015), at 20. 354 Mark King, “Stay-at-Home Dads On the Up: One in Seven Fathers are Main Childcarers” The Guardian Online (25 Oct. 2011) https://www.theguardian.com/money/2011/oct/25/ stay-at-home-dads-fathers-childcarers (last accessed 14 Mar. 2017). 355 Even where both parents work full-time, women still do most of the child care and house work, reporting detriments to their careers. See in the uk A. Park et al, eds, British Social Attitudes: the 30th Report (NatCen Social Research, 2013) and in the us, Kim Parker, “Despite Progress, Women Still Bear Heavier Load than Men in Balancing Work and Family” PewResearchCentre (10 Mar. 2015). Available at http://www.pewresearch.org/fact -tank/2015/03/10/women-still-bear-heavier-load-than-men-balancing-work-family/ (last accessed 23. Apr. 2017).

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In line with changing notions and discourses about fatherhood and its value,356 McDonald points to an “unrelenting influence of deeply embedded beliefs regarding the preservation or promotion of relationships with fathers” which eclipses, not just the purpose of the best interest principle, but even safety concerns about violent parents.357 There have been calls to recognise that it is the quality of contact rather than the volume or type (whether it involves overnights on so on) which is important for children. Herring and others argue that “[c]ontact in and of itself does not benefit the child. It is the relationship that it produces or supports which is important.”358 Quality is also emphasised by young adults as the main factor in the perceived closeness of their parental relationships later in life.359 Consequently attempts to increase rates of contact, in isolation, are misguided. The enormous inclination in favour of contact with both parents likely comes from the fact that, for most people, their parental relationships are the most important in their childhood, and to lose them would be detrimental. What this presumption fails to acknowledge is that there are exceptions to every rule. Those exceptions are often the cases that end up in the courts. In contrast to the image of the irrational, manipulated child evident in the case law considered in Section 1, research demonstrates the absolutely understandable desire of many children to end unpleasant contact arrangements. Whilst contact is of course positive, even crucial, for most children: [H]e’s always the one on the side there for me when I’m all upset, and it’s always been like that, when I’m upset, I always run to Dad360 for some it involves hostile, distant relationships which, unsurprisingly, children want to avoid.361 Trinder highlights unfulfilling contact with “what, in effect, was an ‘uncle dad’ figure”362 for children who 356 See for example Richard Collier, “Fathers’ Rights, Gender and Welfare: Some Questions for Family Law” 31 Journal of Social Welfare and Family Law 357 (2009). Collier considers the fact that the ‘father’s rights’ movement seeks formal equality in spite of the gendered realities of child care, and also considers the effects that this campaign has had on government policy and popular assumptions. 357 Macdonald, note 350. See further below a Section 4.3.3. 358 Jonathan Herring, “Farewell Welfare” 27 Journal of Family and Social Welfare Law (2005), at 167. 359 Fortin, Hunt and Scanlan, note 124, at 149. 360 Seventeen year old girl on her relationship with her non-resident father, quoted in Anne Smith, Nicola Taylor and Pauline Tapp, “Rethinking Assumptions about Children’s Competence to Participate in Family Decision-Making after Parental Separation” 10 Childhood 201 (2003), at 205. 361 Smith, Taylor and Tapp, ibid, at 206. 362 Liz Trinder, “What Might a Child Mean by ‘Meaningful Relationship’?” 15 Journal of Family Studies 20 (2009), at 27.

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highlighted without hesitation how little they enjoyed contact: Like when we go over there, it’s the same thing, right. We sit there in a smoky room, watching television…;363 I don’t like seeing Dad when he’s just like swearing at me and I don’t want to go and see him anymore.364 Yet it seems that contact being unfulfilling and unpleasant is insufficient justification for the courts where children are resisting it. As the example of Clare above indicates, children do not seem to be permitted by courts to refuse to see a parent for ‘no good’ reason, something which many children (and adults later in life) express frustration about: You can’t say you have to go to daddy for access because daddy doesn’t beat you or malnourish you … there were things he did, you know, that had an impact on my life.365 Therefore there is an enormous amount of evidence that children are regularly coerced via the courts into contact arrangements that they do not want.366 In one case during my observations of family law proceedings in Ireland the judge made an order for unsupervised access for a six year old, effective the following day (for four hours, and six the day after that). The girl had not seen her father for over a year and was reported by her mother as resistant to the visit. That introductory periods of supervised access were not considered as an option was surprising to say the least.367 It seems that not even downloading child pornography is necessarily a bar to contact as indicated by Re S. (Child Arrangements Order: Effect of Long Term Supervised Contact on Welfare)368 where an appeal against a decision not to order contact between father and his seven year daughter was overturned. He had been convicted of an offence and “was a significant risk to teenagers”, but the appeal court stated that even if reintroduction of contact would be unsettling for parent and child, that was not a reason not to order it: “Only in the most extreme circumstances will ‘disturbance’ to either child or parent merit a child arrangement order which does not provide for a child to see its absent parent.”369 There is a prevailing assumption that where contact is resisted by a child, that this is the fault of the resident parent, usually the mother.370 Research in 363 364 365 366

Fifteen year old girl quoted in Trinder, ibid, at 25. Girl, aged nine, quoted in Smith, Taylor and Tapp, note 360, at 205. Darlington, note 16, at 59. See also Clare’s case in Tisdall and Morrison, note 3 at 167. See for example Harding and Newnham, note 353; Skjørten, note 94; Mckay, note 15; Douglas et al., note 1; Darlington, note 16; Smith, Taylor and Tapp, note 360. 367 Daly, note 193, at 333. 368 [2015] ewca Civ 689. 369 Ibid, at para. 30. In 1989 even sexually abusing the child was not sufficient to prevent an order for contact, see L. v L. (Child Abuse: Access) [1989] 2 flr 16, ca. 370 See for example us case In Re Marriage of Winternitz, 2015 djdar 3526 (27 February 2015) and H. (Children) [2014] ewca Civ 733. In Australian case Jevons and Jevons 2014 Fam ca 220

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fact points to active undermining of contact by the resident parent in only a small minority of cases.371 In one study, young adults cited domestic violence or concerns over childcare abilities as accounting for almost all of the instances of resisted contact.372 Contrary to the stereotype of the ‘implacably hostile’ resident mother intentionally sabotaging the father-child relationship, “the norm was either for the resident parent to encourage the relationship with the non-resident parent or for him/her to allow the child to make their own decision.”373 In fact it has been found that even most women who have experienced domestic violence at the hands of their child’s father nevertheless want their children to have a relationship with him.374 Of young adults who saw themselves as responsible for contact not being continuous, no-one gave “upsetting the resident parent” as their sole reason.375 All of this evidence inclines against the unhelpful stereotype of the hostile mother as responsible for lack of contact between separated father and child. Claims that an order is for the benefit of the resistant child often seem disingenuous. In the us case In Re Marriage of Winternitz,376 where a fourteen year old daughter strongly wished to relocate with her primary carer mother, the court followed the expert advice that preferred the relationship between father and child to the wish of the child to remain with her mother. The ‘custody evaluator’, who admitted at appeal level that he did not even consider risks to the child of a forced change of residence,377 testified at appeal that she risked “becom[ing] depressed, withdrawn, sullen, angry” if ordered to do so. However, he opined that “the greatest risk to Jamison was losing the relationship with Father” which was “a serious detriment to the child which [could not] be overcome.”378 The perceived threat to the parent–child relationship easily overrides the autonomy of the child – in fact there was negligible attention given to this conflict in the appeal judgment which simply finds that sufficient

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however it was considered to be the father engaging in manipulation, though both parents were considered to be inappropriately involving their teenage children in their dispute. Fortin, Hunt and Scanlan, note 124, at 140. See also Trinder et al., note 312 in which it is stated that: “Implacably hostile mothers do exist, but they are a small minority of enforcement cases.” (at 2). Ibid, at 144. Ibid, at 223. Maddy Coy et al., Picking up the Pieces: Domestic Violence and Child Contact (Rights of Women/Child and Woman Abuse Studies Unit, 2012). Fortin, Hunt and Scanlan, note 124, at 144. In Re Marriage of Winternitz, 2015 djdar 3526 (27 February 2015). Ibid, at 17. Ibid.

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attention was given to her wishes at trial level. Considering so little attention can be accorded to the possibility that children may be harmed by autonomy denial, the distinct impression is given that the ‘interests’ of the child are being instrumentalised to, in fact, apply the rights of the non-resident parent. The research outlined above demonstrates that, where children resist contact, it is most likely because it is uncomfortable and unfulfilling.379 It is hard to see, then, how contact could possibly be considered a right of the child where it is against their wishes, yet this is the language used by the courts.380 The overwhelming paternalism in this approach is encapsulated perfectly in Re W. (Contact: Joining Child as Party)381 in which the judge stated of the seven year old child resisting overnight contact with his father as outlined by James: “[T]he child had a right to a relationship with his father, even if he did not want it, and his welfare demanded that efforts be expended to make contact possible.”382 It is a strange conceptualisation of a ‘right’ where the nature of it is to be forced into a relationship against one’s own wishes.383 The European Court of Human Rights has served on occasion to further undermine children’s position by prioritising the procedural rights of parents over children’s wishes, even stating that force should be used against children to impose contact.384 Extraordinarily in C. v Finland385 Finland was found to have breached the father’s Article 8 rights because the court had held the children’s wishes against contact as determinative. This judgment strongly implies, therefore, that contact is a right of the parent. The claim that contact is the right of the child is disingenuous in some cases, particularly those in which children have no desire to engage with it. At least the determination in C. v Finland is a more honest approach than domestic courts which insist on contact as a right of the child, whilst clearly 379 Macdonald, note 350; Fortin, Hunt and Scanlan, note 124; Trinder, note 362, at 27; Smith, Taylor and Tapp, note 360, at 206. 380 See for example Re W. (A Minor) (Contact) [1994] 2 flr 441 and Re R. (A Minor)(Contact) [1993] 2 flr 762 where the court stated that “[it] is a right of a child to have a relationship with both parents wherever possible.” 381 Re W. (Contact: Joining Child as Party), [2001] ewca Civ 1830. 382 At 16. Emphasis added by Adrian James, “Children, the uncrc and Family Law in England and Wales” 46 Family Court Review 1 (2008), at 53. 383 Adrian James, ibid., at 53. 384 See further Aoife Daly, “The Right of Children to be Heard in Civil Proceedings and the Emerging Law of the European Court of Human Rights” 15 International Journal of Human Rights 441 (2011). See also Moog v Germany 23280-08 (Judgment (Merits and Just ­Satisfaction) – Court (Fifth Section)) [2016] echr 839. 385 C. v Finland Appl. No. 18249/02, judgment of 9 May 2006.

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upholding the ‘rights’ of non-resident parents through the back door, which is what is happening when children are forced into unpleasant and unfulfilling, perhaps even distressing, contact against their wishes. The lack of ­transparency and clarity serves to benefit the non-resident parent, as children’s wishes can be dismissed with ease. 4.3.3

Courts are Downplaying Violence: This Benefits the Position of Violent Parents [The child] was able to describe in clear terms his father’s verbal aggression, the occasions when either he or his brothers had been hit by the father and his witnessing physical assaults by the father on the mother. He said he saw his father drunk and out of control and that this was a frightening situation for all the children to witness.386

There is extensive evidence that contact is ordered in cases where there is domestic violence, even against the wishes of children.387 This issue is also inherently gendered, as victims of domestic violence are overwhelmingly women.388 Although of course men can be victims too, staggering numbers of women are murdered by partners or former partners annually.389 In England and Wales and elsewhere there is as yet reluctance to truly accept that harm to mothers 386 cafcass officer’s account of interviewing child in Hague Convention case. Re M. (Republic of Ireland) (Child’s Objections) ( Joinder of Children as Parties to Appeal) [2015] ewca Civ 26, para. 85. At trial level an order was made for the children to return to Ireland in order to uphold the father’s “rights of contact” under the Hague Convention. 387 This can be a problem in child protection also – note the deeply disturbing case of Ellie Butler, returned against her wishes to a violent father and murdered shortly after. Diane Taylor, “Ellie Butler Had Begged Not to be Sent Back to her Parents, Says Aunt” The G ­ uardian 22 Jun. 2016) Available at https://www.theguardian.com/uk-news/2016/jun/22/ ellie-butler-had-begged-not-to-be-sent-back-to-her-parents-says-aunt (last accessed 30 Dec. 2016). 388 A 2013 analysis found that globally almost one third (30%) of all women who have been in a relationship have experienced violence by their partner. It also found that as many as 38% of all murders of women are committed by intimate partners. World Health ­Organisation, Global and Regional Estimates of Violence Against Women (World Health Organisation, 2013). 389 Office of National Statistics data shows for example that on average two women are killed by their partner or ex-partner weekly in England and Wales. Office for National Statistics citing Homicide Index, Home Office (Office for National Statistics, 2015). Available at http://webarchive.nationalarchives.gov.uk/20160105160709/ http://www.ons.gov.uk/ons/ publications/re-reference-tables.html (last accessed 14 Mar. 2017).

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constitutes harm to children. In Re J.-S. (Contact Parental Responsibility)390 for example the court stated that the father had been violent to the mother, but caring towards the child, which is a contradiction in terms. Violence to a primary carer is inherently harmful to a child. Research from all over the world – Australia,391 Canada,392 England,393 Ireland,394 the us, Norway395 and Scotland396 for example – has found that safety concerns in respect of domestic violence and child abuse are ­persistently overshadowed in family law cases by the presumption in favour of contact. Barnett’s research found that “most professionals and judicial officers support the de facto presumption of contact and rarely question the parenting capacity of domestic violence perpetrators.”397 The failure to take seriously domestic violence in contact cases is to be seen in the fact that in England and Wales, although there is a practice direction for judges instructing that where domestic violence is alleged there must be a finding of fact on the matter, it is regularly not followed.398 It has been argued that mothers are often deemed ‘implacably hostile’ if they resist a process that threatens their safety or that of their children.399 It has also been established that even where children themselves refuse contact or express fear and distress about violent fathers, unsupervised contact is routinely ordered anyway.400

390 [2002] ewca Civ 1028). 391 Miranda Kaye, Julie Stubbs, and Julia Tolmie, “Domestic Violence and Child Contact ­Arrangements” 17 Australian Journal of Family Law 93 (2003). 392 Fiona Kelly, “Enforcing a Parent/Child Relationship At All Cost? Supervised Access Orders in the Canadian Courts” 49 Osgoode Hall Law Journal 277 (2011–2012), at 308. 393 Macdonald, note 350; Women’s Aid, Child First: Nineteen Child Homicides (Women’s Aid, 2016), at 24; Adrienne Barnett, “Contact at all Costs? Domestic Violence and Children’s Welfare” 26 Child and Family Law Quarterly 439 (2014). 394 Stephanie Holt, “Domestic Abuse and Child Contact: Positioning Children in the ­Decision-making Process” 17 Child Care in Practice 327 (2011). 395 Skjørten, note 94. 396 Mckay, note 15. 397 Barnett, note 393. 398 Rosemary Hunter and Adrienne Barnett, Fact-Finding Hearings and the Implementation of the President’s Practice Direction: Residence and Contact Orders: Domestic Violence and Harm: A Report to the Family Justice Council (fjc Domestic Abuse Committee, 2013). 399 Christine Harrison, “Implacably Hostile or Appropriately Protective? Women Managing Child Contact in the Context of Domestic Violence” 14 Violence Against Women 381 (2014), at 382. 400 See for example Harrison, ibid; Gillian Macdonald, Domestic Violence and Private Family Court Proceedings: Promoting Child Welfare or Promoting Contact? (Centre for the Analysis

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There are strong indications that this contact ordered between children and abusive fathers results in violence for both women and children. In one study on the experiences of victims of domestic abuse in the family courts, 45% of women reported having had experienced violence after the making of a contact order.401 A 2016 report documented the murders of 19 children killed by domestically violent fathers during contact visits between 2005 and 2015,402 noting cases in which children were not asked their views, and one in which “the children disclosed that their father emotionally abused them and that they were afraid of him”403 and contact was ordered anyway.404 Younger children seem particularly vulnerable to overriding of their wishes not to see violent parents. In Norway, Skjørten’s research405 determined that children aged 10 or older resisting contact with a violent parent are often granted a decision in accordance with their wishes, whereas the wishes of younger children are regularly overridden. These kinds of cases perhaps constitute the most disturbing element of a ‘right to be heard’ for children. They highlight the toothlessness of this ‘right’ – apparently feted for it’s aim of facilitating children to influence decisions about their interests – which appears to be of little assistance to children in their efforts to escape violent relationships. In some cases, the wishes of the children are not even featured.406 Hague Convention cases are particularly problematic. In Re M. (Republic of Ireland) (Child’s Objections) ( Joinder of Children as Parties to Appeal)407 at trial level the judge had determined that the children were not “really objecting” to a return to Ireland where their violent father lived because they “had failed to appreciate what protective measures could be put in place upon their return, which in her view would be sufficient of Social Policy, University of Bath, 2013); Women’s Aid, note 393, at 24; Coy et al., note 374; Fiona Kelly, note 392; Stephanie Holt, note 394. 401 Coy et al., note 374. 402 Women’s Aid, note 393. 403 Ibid, at 24. 404 Fortunately in the wake of this report (ibid) there is at the time of writing a review of the relationship between courts, contact, and domestic violence in England and Wales. Review of Practice Direction 12J fpr 2010 Child Arrangement and Contact Orders: Domestic Violence and Harm, Report to the President of the Family Division The Honourable Mr. Justice Cobb (Jan. 2017). 405 Skjørten, note 94. 406 See for example M. (Children) [2013] ewca Civ 1147. In my research children’s wishes were routinely not sought in family law cases in Ireland, for example, and from a search of the database of Australian cases, in many of these children’s wishes are entirely absent also. 407 [2015] ewca Civ 26.

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to safeguard them and their mother from their father. She seems to have taken the view that this mistake vitiated their views.”408 The presumption in favour of contact, and the ‘contact at all costs’ approach, are at their most problematic in domestic violence cases. Children without a determinative say are clearly potential tools of abusive parents. Abusers can use the courts to continue their campaign of control over their former partners.409 The fact that there is no presumption in favour of children’s wishes even when it comes to contact with violent parents benefits no-one but the violent parent, who already holds so much of the power. 5

Concluding Thoughts on the Inability of Children to Influence Outcomes

It seems fair that children’s actual influence on outcomes should be considered the most important purpose of crc Article 12, particularly in proceedings where intimate matters about their personal lives are being determined. There are other benefits to the right of children to be heard, such as ensuring their due process rights (for example attendance at proceedings), and the psychological benefits of being heard, but at the end of the day, what is ‘hearing’ really for? It surely amounts to little if there is no actual change to outcomes as a result. Yet the evidence points strongly to children having little influence on outcomes in spite of the existence of crc Article 12. It is of course difficult to encapsulate practice in all liberal democracies when it comes to how children’s wishes are weighed in proceedings. The current chapter is limited in many ways. The countries covered are almost entirely common law as these are generally English speaking (and produce some detailed reported judgments, uncommon elsewhere). Even in these countries judgments are hard to come by however. In England and Wales, Children Act

408 Ibid, para. 101. 409 This is a matter which as of 2017 has finally been accepted in the courts in England and Wales. High Court judge Peter Cobb urged judges to be more alert to abusers using the courts to continue their abuse. See Sandra Laville, “uk Judges Change Court Rules on Child Contact for Violent Fathers” The Guardian Online (20 Jan. 2017). Available at: https:// www.theguardian.com/society/2017/jan/20/uk-judges-change-court-rules-on-child-con tact-for-violent-fathers-domestic-abuse (last accessed 14 Mar. 2017). Yet violence is still just another factor to consider alongside everything else, as per Re L., V., M., H. (Contact: Domestic Violence) [2000] 4 All er 609.

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1989 cases are now rarely reported.410 With these limitations acknowledged there are nevertheless some inescapable trends emerging from the material available. Children clearly struggle to exercise influence when best interest decisions are being made about them. This is unsurprising, considering the low status accorded to children’s wishes, manifested in the constant questioning by the courts of children’s maturity, competence and motivations. Hearing children can be a completely tokenistic exercise, as no matter what children say, no matter what their reasons are, their wishes can be overridden with little, if any, explanation, apparently in their ‘best interests’ – a catch-all phrase which can potentially be used to justify any decision made by adults. This devaluing of children’s wishes is to be seen perhaps most clearly in cases where children resist unpleasant contact or where they seek greater contact with birth families when they are in care. It is seen in its least justifiable form where children resist contact with domestically violent parents. The lack of accountability regarding how courts treat children’s wishes inevitably benefits the powerful, retaining existing power dynamics of state authorities over vulnerable families, of adults over children and specifically of violent men over abused partners and children. To some extent at least, courts are hiding behind the ambiguity of “due weight” or whatever equivalent terms are used at domestic level (there is little evidence that courts tend to rely upon crc Article 12, explicitly or implicitly, when considering children’s wishes). Courts appear to give children’s wishes ‘significant weight’411 primarily in two scenarios – if the child is older and/or if they agree with the views of the child. Otherwise ‘little weight’412 will likely be given, unless it is a case concerning a serious medical law issue, where children’s wishes will be taken seriously regardless,413 even though they are still likely to be overridden if the child’s desired course of action seriously threatens her health.414 410 Felicity Kaganas, “Justifying the laspo Act: Authenticity, Necessity, Suitability, Responsibility and Autonomy” Journal of Social Welfare and Family Law (forthcoming, 2017). See ‘Conclusion’. 411 See for example G. (A Child: Intractable Contact) [2013] ewhc B16, para. 85 and Re G. ­(Abduction: Children’s Objections) [2010] ewca Civ 1232, para 21. 412 See for example Re M. (Republic of Ireland) (Child’s Objections) ( Joinder of Children as ­Parties to Appeal) [2015] ewca Civ 26. 413 Or at least cases which involve medical matters. See for example Re j.s. (Disposal of Body) [2016] ewch 2849 and X. (A Child) [2014] ewhc 1871. 414 See for example Re A. (A Child) [2014] ewhc 920 and Re M. (A Child) (Refusal of Medical Treatment) [1999] 2 flr 1097.

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Most problematic is that courts regularly measure children’s ‘competence’415 by how ‘rational’ their decision is,416 which leads to a Catch-22 type scenario for children: in order to get the outcome they want, they most need to have weight given to their wishes in cases where judges disagree with the wisdom of their desired outcome. Yet if judges disagree with the wisdom of their desired outcome, children are immediately deemed untrustworthy, and their wishes given little weight. So in the cases in which they most need ‘weight’ they are least likely to have it. Judges appear very unclear about what it is they are weighing: Competence? The wisdom of the decision? Whether the outcome would really be harmful to the child? This latter point hardly gets any attention in any case. The corner stone of adult autonomy is that we are free to make as irrational a decision as we wish,417 and children are being held to a much, much higher standard of ‘rational’. There are, therefore, many reasons why it appears so very necessary to place children’s autonomy first in best interest decisions, in the form of a presumption in favour of their wishes. First, judges are not inclined to follow crc Article 12 and explicitly decide what weight is due to children’s wishes, often considering instead “whether to take children’s wishes into account”418 (which seems to be a question, not of how much weight to give children’s views, but instead whether to give them any weight). Secondly, there is a lack of clarity about what aspect of a child’s decision is being ‘weighed’ – the competence of the child, the rationality of the decision, or how much the child’s decision accords with the judge’s determination of their ‘best interests’. Thirdly, there is no consistency or transparency in the weighing of children’s wishes, and one gets the distinct impression that judges simply say that the child’s wishes has been influential when those wishes accord with what the judge has already decided. It seems that the principle of the best interest of the child is, in fact, becoming hopelessly lost in the confusion of what it is that the judge is trying to decide in a case where a child has expressed wishes. This is because there is little or no sense of the judge weighing the potential harm from denying the 415 See for example Ciccone v Ritchie (No. 1) [2016] ewhc 608, para. 46; G. (A Child: Intractable Contact) [2013] ewhc B16, para. 82 and Re T. (Abduction: Child’s Objections to Return) [2000] 2 fcr 159, at 202. 416 See for example G. (A Child: Intractable Contact) [2013] ewhc B16, para. 83; Re K. [2010] ewca Civ 1546, at para. 24; Re T. (Abduction: Child’s Objections to Return) [2000] 2 fcr 159; and Skjørten, note 94, at 298–9. 417 Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985] ac 871. 418 See for example White v Northumberland [2006] nzflr 1105 and Re R. (Child Abduction: Acquiescence) [1995] 1 flr 716.

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child’s autonomy against other potential harms, such as that which may arise from losing touch with a parent. Therefore these proceedings do not, in fact, appear to be seeking decisions on the basis of the best interest of the child; they seem to be decisions which turn entirely on the judge’s own worldview. This is usually, to be fair to judges, simply reflecting broader societal values. The seeming inability of children to successfully resist unhappy (or even potentially violent) contact visits with non-resident parents points to a very idealised vision of family life playing-out in the courts, a heteronormative notion that every child requires a relationship – any relationship perhaps – with both mother and father to function well.419 There is also a strong sense that, rather than really being about the ‘best interest of the child’, these cases are about a perceived sense of ‘justice’, as is evident in the judge’s despair in his efforts to force contact on the boy in Re S. (Transfer of Residence):420 “On 21 July 2010 a wholly deserving father left my court in tears.”421 The boy in question had been left with clinical mental health problems from his situation, presumably due at least in part to the litigation and the attempts at coercing him into contact,422 yet it was the perceived injustice for the ‘deserving’ father that appeared to be first and foremost in the judge’s mind (this is the opening statement in the judgment).423 The inability of the right to be heard and the attendant principle of “due weight” to assist children to successfully influence best interest decisions points strongly to the need for a different focus; one which requires greater emphasis on the child as an individual, an active agent, and a rights-bearer. Requiring that children’s wishes are considered the most important factor in a best interest decision on their behalf would be a positive start. Instead of ‘hearing children and weighing their views’ as required by crc Article 12, the principle could involve hearing children and making the decision on the basis that the child’s wishes are the most important consideration (but could be displaced by other considerations where they were strong enough). 419 Einhorn states that “Decision-making in family law is inherent with contradictions, which reflects the changing notions within society of how men, women and children are and ought to be.” Jay Einhorn, “Child Custody in Historical Perspective: A Study of Changing Social Perceptions of Divorce and Child Custody in Anglo-American Law” 4 Behavioural Sciences and the Law 119 (1986), at 120. 420 Re S. (A Child) [2010] ewhc B2. See above note 73. 421 Ibid, para. 1. 422 Ibid. See above note 73. 423 The court was adopting the “poignant descriptive words” of another judge used in the case Re D. (Intractable Contact Dispute: Publicity) [2004] 1 flr 1226. See also A. (A Child) [2013] ewca Civ 1104, para. 39.

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Yet it seems that the level to which children’s wishes are being ignored requires that we go even further than this, because decision-makers have proven willing to give very little justification or explanation for overriding children’s wishes, and simply putting children’s wishes first may not change this. This is why it seems necessary that when it comes to the outcome,424 there should be a starting point, as suggested in Chapter 1, that “[c]hildren should get to choose – if they wish – … the outcome (outcome autonomy) unless significant harm would likely arise from their preferences.”425 So the child’s wishes should not only be the most important factor, but it should be presumed that they will be determinative, and there should be a high threshold to override them. This will require significant attention to children’s autonomy on the part of the decision-maker. It will also necessitate very justifiable circumstances to go against children’s wishes. It is envisioned, for example, that the potential harm from not having contact with a parent (where a child is resisting contact) would not ordinarily meet this ‘significant harm’ threshold, and therefore courts should not generally be able to coerce children into contact. There are of course a number of concepts, provisos and safeguards which are necessary to consider in relation to this proposed principle. Children do require greater protections compared to adults, and a single approach will, of course, never suit every case. These matters will be considered in the next chapter. 424 The matter of process has been considered in detail in Chapter 4. 425 Section 8.2.

chapter 6

Putting the Autonomy Principle into Practice: Moving from a Focus on ‘Competence’ to One on Significant Harm It doesn’t feel a very powerful situation … they’re the ones making the decisions. They push you into making the decisions they want and then you suffer.1

∵ Introduction It was established in Chapter 5 that most children have little real influence on outcomes when courts make decisions about their best interests. Decisionmakers give very little justification for overriding children’s wishes. Where they do attempt to provide explanations, they invoke concepts which are little understood, such as a child’s ‘competence’, ‘understanding’ and ‘maturity’; making it easy to override children’s wishes. There is also much confusion about what a weighing exercise should involve – proving the child is rational? Proving the wishes are rational? It seems that judges proclaim that they have given children’s wishes great weight when they are already inclined to make a decision in that direction anyway. There is strikingly little weighing of the harm to children from denying them their wishes, and when there is, it tends to be geared towards the question of whether the activity itself (such as contact) would be harmful, rather than whether denying autonomy would be harmful.2 This is why it seems necessary that the focus should be on respect for autonomy, rather than on hearing children and weighing their views, in both the process and the outcome of best interest proceedings. It is suggested in Chapter 1 that “[c]hildren should get to choose – if they wish – … the outcome (outcome 1 Sixteen year old girl in care quoted in Jane Boylan and Pauline Ing, “‘Seen But Not Heard’: Young People’s Experience of Advocacy” 14 International Journal of Social Welfare 2 (2005), at 6. 2 See for example G. (A Child – Intractable Contact) [2013] ewhc B16.

© koninklijke brill nv, leiden, ���� | doi 10.1163/9789004355828_008

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autonomy) unless significant harm would likely arise from their preferences.”3 So the child’s wishes should be the most important factor, and there should be a high threshold to override them – not just harm, but significant harm. Although at first it might seem alarming to accept any harm to a child, on closer inspection courts do this all the time. Judges regularly accept harm to children where it is perceived to outweigh some more serious harm – leaving children in inadequate families rather than taking them into care;4 forcing returns to countries of origin under the Hague Convention even where it is accepted that this will cause harm;5 and so on. Even if there is a likelihood of harm from a child’s desired outcome in a case, therefore, this should not be sufficient for overriding a child’s wishes. It should also be accepted that it is inherently l­ ikely to be harmful for courts to coerce a child into action or arrangements in their private life. Therefore judges should invoke something more than just likely ‘harm’, or the situation will probably remain the same for children – any excuse will justify the overriding of their wishes. In particular the perceived ‘harm’ of children missing contact with a parent should not be invoked as a reason to coerce them via court order – this is probably the most common reason relied upon in private law. In this chapter, the concept of significant harm is considered in detail. The justifiability of focusing on harm for considering whether to uphold autonomy, rather than ‘competence’ or capacity (generally the factor/s relied upon in medical law), is outlined. The fact that courts regularly accept harm to children in best interest proceedings – seeing it as an inevitable fact of life6 – is considered, and it is emphasised that denying autonomy will likely be inherently harmful. The matter of whether and how children can face harm from the proceedings themselves, in particular where they may face undue pressure or manipulation, is examined. The extent to which parental autonomy is upheld unless there is significant harm to a child, or a likelihood of it, is outlined. It is argued that children should enjoy a similar level of respect for their autonomy, and that ‘harm’ should not be sufficient justification to override children’s autonomy, because this will likely result in children’s wishes being overridden easily. The harm should be something exceptional to be considered significant. There will be 3 Section 8.2. 4 Re L. (Care: Threshold Criteria) [2007] 1 flr 2050, para. 50. 5 M. v B. [2016] ewhc 1657, at para. 23; Re E. (Children) [2011] uksc 27, at 34; i.p. v. t.p. [2012] 1 IR 666 (Ireland); v.g. v r.b. FamC (BSH) 3450/07 (Israel); Re C. (Abduction) (Grave Risk of Psychological Harm) [1999] 2 fcr 507, para. 517. 6 Re E. (Children) [2011] uksc 27, para. 34.

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cases in which the presumption should be set aside – if there is proven manipulation; if the child is very young; but these factors alone are insufficient. To override children’s wishes it should be necessary, not just to point to any available factor, but to prove that a factor or a combination of factors are likely to cause significant harm, in order to take seriously the fact that autonomy denial by the courts will likely be inherently harmful to children. It is then considered that occasionally there can be instances where a child’s wishes cannot be upheld because of genuine resource issues as well as practical and other reasons (where a child wishes to live with a parent who will not agree to it, for example). The steps to follow when implementing the children’s autonomy principle in light of these provisos are laid-out. 1

Justifying a Focus on Significant Harm I really hate all this and I just want to be left alone … this is all making me feel scared and frightened.7

crc Article 12 requires that children are heard, and that their wishes are g­ iven ‘due weight’, when their interests are determined in proceedings affecting them. As outlined in Chapter 5, when determining the weight to accord to children’s wishes, judges place a premium on the extent of a child’s ‘maturity’ or ‘competence’.8 These concepts then become confused with factors such as the age of the child (judges question whether children are as mature as their chronological age without specifying why this is important)9 and the perceived rationality of their views and wishes.10 The preoccupation with competence is unsurprising considering the area in which children’s autonomy has been taken most seriously is medical law, and medical law issues tend to revolve 7 8

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Quote from letter to judge of nine year boy in intractable contact dispute where he wishes not to see his father. Re H –W. (A Child) [2017] ewca Civ 154, para. 25. See for example Ciccone v Ritchie (No. 1) [2016] ewhc 608, para. 46; G. (A Child: Intractable Contact) [2013] ewhc B16, para. 82 and Re T. (Abduction: Child’s Objections to Return) [2000] 2 fcr 159, at 202. See for example Re M. (Republic of Ireland) (Child’s Objections) ( Joinder of Children as Parties to Appeal) [2015] ewca Civ 26, para. 110; W. (Minors) [2010] ewca 520 Civ; Re S. (A Child) [2010] ewhc B2, para. 58; Norway Supreme Court case LA-2005-136932. See for example G. (A Child: Intractable Contact) [2013] ewhc B16, para. 83; Re K. [2010] ewca Civ 1546, at para. 24; Re T. (Abduction: Child’s Objections to Return) [2000] 2 fcr 159; Kirsten Skjørten, “Children’s Voices in Norwegian Custody Cases” 27 International Journal of Law, Policy and the Family 289 (2013), at 298–9.

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around children’s consent, which focuses attention on children’s ‘competence’ or ‘capacity’ (whether in the strict legal sense or not – often it is not specified).11 Nevertheless the lack of clarity about how to weigh children’s wishes results in limited, if any, influence for children in proceedings about their best interests. This points to the need to move away from ‘weighing’ views and from the preoccupation with competence or capacity, and instead to re-focus on the reason why best decisions are taken on children’s behalf in the first place. On what basis are children being treated differently to adults in this context? Ostensibly it is for their protection – their relative immaturity, vulnerability, and lack of experience requires that, where parents cannot decide a matter concerning their interests, then the courts must do so. This extraordinary paternalism for children – in contrast, adults decide issues regarding their personal lives and relationships without interference – is only justifiable if it is exercised to the extent necessary and no more. It seems therefore that this should be the focus of the best interest decision – what is the level of paternalism required in this case? What is the maximum respect for autonomy that can be achieved? As considered in Chapter 3, it is increasingly recognised that in medical law to some extent courts will disregard adult capacity (though the courts may not explicitly admit it) in order to achieve a ‘just’ outcome, as in the needle fear cases.12 It is argued that courts should be more open about this, as it is sometimes justifiable to protect those who need protection, even where they have capacity.13 The courts’ loose approach to capacity is particularly evident when it comes to children’s consent (or refusal) of treatment – courts willingly circumvent the question of whether a child has capacity or Gillick competence14 if the likely harm of the option sought by the child is too great.15 Children’s 11 12

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See Chapter 3, Section 6. Re L. (Patient: Non-Consensual Treatment) [1997] 2 flr 837; and Re m.b. (An Adult: Medical Treatment) [1997] ewca Civ 1361. See also Kings College Hospital nhs Foundation Trust v Y. [2015] ewhc 1966, The nhs Trust v. Ms T. [2004] WL 1174198 and In Re W. [2002] WL 32068016. Considered in Chapter 3, Section 5. See for example Jonathan Herring, Vulnerable Adults and the Law (Oxford University Press, 2016) and Charles Foster, Choosing Life, Choosing Death: The Tyranny of Autonomy in Medical Ethics and Law (Hart, 2009). The problematic Gillick definition of competence is prevalent in the case law, that is, whether a child has “sufficient understanding and intelligence” when it comes to the matter in question. See the debates considered in Chapter 3, Section 6 on whether Gillick was intended to only apply to consent or to denote a broader understanding of the situation by the child. See in particular Emma Cave and Julie Wallbank, “Minors’ Capacity to Refuse Treatment: A Reply to Gilmore and Herring” 20 Medical Law Review 423 (2012). See further Chapter 3, Section 6.

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ability and permission to take decisions for themselves is linked to the nature of the risk involved.16 Likewise, when it comes to parental decision-making about children in the medical context, for example, ethicists are in agreement that “harm is the central moral concept when judging the appropriate threshold for state intervention.”17 I am arguing therefore that the question of whether children’s wishes can be overridden in best interest decisions more broadly should also be determined in relation to the risk of harm, rather than the confused and unjustifiable approach taken at present (weighing views in line with age and maturity), which is outlined in Chapter 5.18 We can further see a basis for the autonomy-harm link in the interpretation of post-Gillick case law on children’s medical consent. Though the notion of Gillick competence (relied upon in medical law in England and Wales and elsewhere)19 means that the consent of children with sufficient understanding should essentially be treated like that of adults, this principle is regularly circumvented and overridden, especially where significant harm will result, such as in cases of refusal of treatment.20 So if an ‘autonomy save where serious harm’ approach is used for children in medical law, it should be possible to apply it in other best interest decisions too. It would of course be a radical departure from the overwhelmingly paternalistic approach in, for example, family law, where any wish can easily be overridden in the pursuit of ostensible ‘best interests’. However there does not appear to be any obvious reason as to why 16

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The General Medical Council in England and Wales advises practitioners that when determining the capacity of children, as well as considering other matters such as the child’s relationships: “You should remember that a young person who has the capacity to consent to straightforward, relatively risk-free treatment may not necessarily have the capacity to consent to complex treatment involving high risks or serious consequences”; linking capacity and the risk of harm. General Medical Council, 0–18 Years: Guidance for all Doctors (General Medical Council, 2007), at para. 26. Rosalind McDougall and Lauren Notini, “Overriding Parents’ Medical Decisions for their Children: A Systematic Review of Normative Literature” 40 Journal of Medical Ethics 448 (2014), at 451–2. Eekelaar similarly advocated overriding children’s wishes in 1998 on the basis of ‘risk’. John Eekelaar, “Children’s Rights: From Battle Cry to Working Principle” in Jacqueline Pousson-Petit, ed, Liber Amicorum Marie- Thérèse Meulders-Klein: Droit Comparé Des Personnes Et De La Famille (Bruylant, 1998), at 205. See Chapter 3. See for example See for example Re E. [1993] 1 flr 386; Re S. [1994] 2 flr 1065; Re R. [1991] 4 All 177; Re W. (a Minor) (Medical Treatment) [1992] 4 All er 627 considered in Chapter 3, Section 6. See also Emma Cave, “Goodbye Gillick? Identifying and Resolving Problems with the Concept of Child Competence” 34 Legal Studies 103 (2014).

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the approach taken in one best interest matter (medical law) cannot also be taken in another (family law). In fact, it seems that family law is an even more appropriate arena for the ‘autonomy save where serious harm’ approach.21 Somewhat ironically, most best interest decisions made by courts about children don’t involve life and death choices, where in medical law the leading cases lie.22 Rather they involve everyday issues about children’s personal lives such as who they will see and the upbringing they will receive. So in medical law children seem to have a much greater say on much more serious matters.23 The nature of the decision should affect the decision-making process. Where significant harm such as death or injury is not at issue, then clearly autonomy should be upheld even more readily, yet it is precisely in these ‘less serious’ instances that paternalism is even stronger. This is because the best interest principle, left unfettered, skews the approach to children as autonomous individuals.24 2

Redefining Harm: Repressing Autonomy as Harmful Because, if I – who am 17 – practically broke because of how many things there were, I can only imagine what it is like for someone younger.25

2.1 The Harm of ‘Autonomy Repression’ in Best Interest Decisions Considering that autonomy is fundamental to well-being,26 it is surprising that more questions have not been asked by courts and others about whether 21

22 23

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Other authors have also proposed presumptions in favour of children’s autonomy more generally (rather than in best interest decisions specifically). The work of Holt and Farson is considered briefly in Chapter 1. Michael Freeman also argued in The Rights and Wrongs of Children (Frances Pinter, 1983) that it may be safer to assume that children do know what they want, than to risk excluding them from this right (at 57). See for example Re E. [1993] 1 flr 386; Re S. [1994] 2 flr 1065; Re R. [1991] 4 All 177; Re W. (a Minor) (Medical Treatment) [1992] 4 All er 627. See for example the story of Hannah, who was permitted to refuse a heart transplant at age 13 years. See for example Patrick Barkham, “Hannah’s Choice” The Guardian (12 Nov. 2008). Available at https://www.theguardian.com/society/2008/nov/12/health-child -protection (last accessed 28 Nov. 2016). See further Chapters 1 and 2. Boy aged 17 years, ‘custody’ case Croatia, quoted in European Union Fundamental Rights Agency, Child-Friendly Justice: Perspectives and Experiences of Children Involved in Judicial Proceedings as Victims, Witnesses or Parties in Nine eu Member States (European Union Fundamental Rights Agency, 2017), at 38. See Chapter 3, Sections 2–3.

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children are being harmed where best interest decision-making overrides their wishes. There is an occasional judicial reference to the reality that older children may well defy court orders and ‘vote with their feet’ and to other practical realities associated with coercion.27 However there is sparse reference to potential harm which children will suffer in being denied control over their own lives, and particularly in intimate relationships, in spite of the fact that research indicates that an outcome in line with a child’s wishes is one in line with their welfare (in family law at least).28 This is in contrast somewhat to the approach to the matter in medical law, where it is accepted, at least to some degree, that treating children against their wishes will likely be harmful.29 Laws and policies are distinctly more deferential to children’s autonomy than those in other areas of the law.30 Alderson points to the fact that excluding children from the perceived harm of decisionmaking may just cause a different type of harm, where they are forced into medical treatment against their will.31 The same kind of thinking has emerged to some extent in family law best interest decisions when it comes to the process of being ‘heard’,32 but that’s where it appears to end. In terms of actually

27

See for example Re M. (Children) [2016] ewca Civ 1059 in which the Court of Appeal said that the children, aged 10 and 12 years, might “vote with their feet” in spite of the judgment (para. 69). See also W. (A Child) [2016] ewca Civ 1051 and Judy Cashmore, “Children’s Participation in Family Law Decision-Making: Theoretical Approaches to Understanding Children’s Views” 33 Child Inclusive Research, Policy and Practice, Children and Youth Services Review 515 (2011), at 516. 28 Karl-Franz Kaltenborn, “Children’s and Young People’s Experiences in Various Residential Arrangements: A Longitudinal Study to Evaluate Criteria for Custody and Residence Decision Making” 31 British Journal of Social Work 81 (2001). 29 In one research study, a nurse outlined the reality of forcing treatment on children: “[Y]ou’ve got no consent, the child is screaming, you’ve got to think, long-term, are you providing this child with the most horrific memory that’s going to keep them awake every night for the next six months?” Quoted in Mary Donnelly and Ursula Kilkelly, “ChildFriendly Healthcare: Delivering on the Right to be Heard” 19 Medical Law Review 27 (2011), at 37. 30 See for example Re j.s. (Disposal of Body) [2016] ewch 2849: Re A. (A Child) [2014] ewhc 920 and Re M. (A Child) (Refusal of Medical Treatment) [1999] 2 flr 1097. 31 Priscilla Alderson, “Researching Children’s Rights to Integrity” in Berry Mayall, ed, Children’s Childhoods: Observed And Experienced (The Falmer Press, 1994). 32 In Mabon the court refers to the notion of harm from exclusion from proceedings (rather than harm from denial of autonomy per se). Mabon v Mabon and others [2005] ewca Civ 634.

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having a determinative say on the outcome, there are very few judgments in which the potential harm from taking choices from children is acknowledged, except for a few exceptions that prove the rule.33 The physicality of forced medical treatment may distinguish it to some extent from other best interest decisions. Harm from legal coercion in other areas (such as forcing contact arrangements against children’s wishes) may not be as overt, and tends to be more psychological. But it is there. Psychological harm may be less visible, but it can be just as severe as physical harm, and the two are inextricably linked – the psychological can become the physical (for example mental distress often manifests in physical illnesses) and vice versa.34 Therefore coercion will likely be counterproductive when trying to achieve a ‘good’ outcome for a child – even if the potential harm, say of losing parent–child contact is a risk, so is the potential harm from coercion. One boy forced into contact with his mother described some of his distressing experiences: That night I had to go back down [to my mother’s house] for my dad to pick me up, because of the court contact thing … and it was hell because she was giving me abuse about it [an earlier meeting] and that, basically just ignoring me and telling me she hates me … and I was like, “It’s not my fault that I hate you” … and then when I got back I had to walk down that road and got loads of abuse off her family, they were telling me, “See what you’ve done now?”35

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The exceptions include the British Columbia Supreme Court in L.E.G. v A.G. 2002 bcsc 1455 referring to “an indication that perceived control over decisions is related to positive mental health” para. 20. There are some heartening references to ‘consequences’ of contact against wishes in New Zealand case A. v S. HC MAS Civ-2004-435-245, para. 14 and Canadian case P.J.A. v S.C.C., 2015 abqb 800, para. 7. Also, in Norway in LE-2006-23887, the court decided that two boys aged 13 and nine years could remain with their father though the court preferred the mother as a carer. The court acknowledged the significant physical and mental stress which would be caused by forcing them to live with their mother. Described in Skjørten, note 10. Studies indicate for example that anxiety is linked to a plethora of physical health problems: Remy Melina, “Eleven Tips to Lower Stress” Live Science (4 Nov. 2011). Available at http://www.livescience.com/35957-lower-stress-tips.html (last accessed 17 Nov. 2016). Fourteen year old boy with experience of family law proceedings, quoted in Gillian Douglas et al., Research into the Operation of Rule 9.5 of the Family Proceedings Rules, 1991 (Department for Constitutional Affairs, 2006), at 96.

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There is startlingly little concern in best interest proceedings for potential harm which may be caused to children where they are forced into arrangements they do not want. Courts underestimate the “corrosive suffering” of children feeling powerless to influence decisions affecting them36 and the “trajectory of suffering” which research demonstrates that many children experience in such circumstances.37 In research conducted by Douglas et al., into the most difficult of family law cases, the simmering anger of children was stark where they perceived their wishes to be ignored, as highlighted in this letter to a judge: You will be deciding what our surname will be so I thought I should write and introduce myself whilst expressing my wishes as it appears to us that the court does not wish to acknowledge them.38 In medical law there are accounts of the sad but firm resistance of even very young children, such as this girl resisting a course of action determined without her agreement: Six-year-old Samantha willingly underwent two liver transplants. As she said, she longed to be fit and well, and to look pink not yellow. But after these transplants both failed and her doctors and parents wanted to try a third transplant with a two percent chance of success … she became so sad and withdrawn, refusing to speak or to eat, that her parents and then her doctors accepted her wish to go home to die.39 Children in the care system appear to suffer particularly badly from feelings arising from autonomy repression. Leeson interviewed children in the care system, and described the “feelings of helplessness, low self-esteem and poor confidence that have followed the lack of opportunities made available to them to make decisions about their own lives.”40 Children in care frequently report 36 37 38

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Lyn Mikel Brown and Carol Gilligan, Meeting at the Crossroads (Ballantine Books, 1992). Kaltenborn, note 28. Seventeen year old girl with experience of family law proceedings, quoted in Douglas et al., note 35, at 85. Similarly the distress of children in the us forced into contact visits – accused of having an ‘alienation syndrome’ rather than legitimate feelings – has been raised by commentators such as Johnston. Janet Johnston, “Children of Divorce Who Reject a Parent and Refuse Visitation: Recent Research and Social Policy Implications for the Alienated Child” 38 Family Law Quarterly 757 (2005). Priscilla Alderson, “Giving Children’s Views “Due Weight” in Medical Law” International Journal of Children’s Rights (forthcoming 2017), summarising Christine Irwin, “Samantha’s Wish: Involving a Seriously Ill Child in Decisions about Medical Treatment” 92 Nursing Times 36 (1996). Caroline Leeson, “My Life in Care: Experiences of Non-Participation in Decision Making Processes” 12 Child and Family Social Work 268 (2007), at 268.

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feeling that their views are not taken seriously41 and perceive conflict between the rights of adults versus those of children.42 They have been described as resisting the adult agenda and attempting to impose their own.43 Research indicates that children in care, when faced with a sense of a lack of control, often develop strategies manifesting in eating disorders and behavioural problems: I did once try when I was living with foster parents and I didn’t want to be with them, and no one’d listen, but then … then I started eating more and everything. And then my social worker started listening to me.44 Courts and other authorities appear to operate on the assumption that a decision on a ‘best interest’ basis is sufficient. That this will ensure the best outcome, and will mitigate any suffering that might be experienced by the child in the short term. There is a need for serious reflection on whether this assumption is based on any evidence, and whether it is justifiable, because for many children the actual harm from coercion seems far worse than whatever potential harm against which the judge thinks they are guarding children. 2.2 Courts Accept that ‘Harm’ is Inevitable Courts readily accept that children may have to experience harm. It has been emphasised that “[e]very child has to put up with a certain amount of rough and tumble, discomfort and distress. It is part of growing up”45 and that “[d]iscomfort and distress may be almost inevitable for a child whose parents are in dispute.”46 As outlined in Chapter 5, courts are very accepting of harm in the present in order to achieve some goal in the future. In Re L. (Care: Threshold Criteria)47 the court in England and Wales stated that “diverse standards of

41 42 43 44

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Alison McLeod, “Whose Agenda? Issues of Power and Relationship when Listening to Looked-After Young People” 12 Child and Family Social Work 278 (2007). Boylan and Ing, note 1, at 5. McLeod, note 41. Child in care quoted in Boylan and Ing, note 1, at 5. See also Judy Furnivall, Understanding Suicide and Self-Harm amongst Children in Care and Care Leavers: Insight 21 (iriss, 2013). Furnivall highlights that where individuals have experiences in which they perceive a lack of autonomy they sometimes use self-harm to take back a sense of control. Re E. (Children) [2011] uksc 27, at 34. Irish case i.p. v. t.p. [2012] 1 ir 666, para. 34. See also in Scotland White v White, 2001 slt 485 and in England and Wales M. v B. [2016] ewhc 1657, where courts accepted the distress of children about being forced into contact and residence (respectively) as genuine, but emphasised that this would decrease as relations normalised (these were assumptions on the part of the court rather than predications based on evidence). [2007] 1 flr 2050.

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parenting have to be tolerated” and that some children will experience “disadvantage and harm”.48 For “the state” to protect all children from defective parenting, the court opined, was simply was not possible.49 And yet the courts, whilst unwilling to interfere with parents causing mere harm, will override children’s wishes often without even any reference to the possibility that harm could arise from those wishes. Often all that appears relevant to the courts is that the overriding of the child’s wishes is apparently in the child’s ‘best interests’. Frequently there is not even any consideration of whether there would be significant problems if the wishes of the child were upheld. Hague Convention cases have led to particularly distressing scenarios for children, presumably due to the complexities of cross-border family law disputes which mean that children may settle into their new home for years, and face being sent enormous distances, sometimes away from primary carers, when return orders are made. This has led to disturbing instances of children being manhandled by police in efforts to enforce court orders. For example in the Vincento case four girls were forcibly returned to their father in Italy from Australia to where they had been taken by their Australian mother. Scenes of the girls clinging the gates at the entrance of their father’s villa in an effort to avoid being returned to his care, and police dragging them inside, were recorded.50 In M. v B.51 boys of 10 and 12 were taken by authorities without notice from school and the custody of their father, with whom they had lived in the uk for three years, in order to be sent to their estranged mother in France. The boys were reported to be terrified.52 Such instances appear to constitute justice to an unmistakably adult timetable,53 and family law systems at their worst. Cases unfold in which children are denied any choice, preparation or perhaps even explanation of what

48 49 50

Ibid, at para. 50. Ibid. See 60 Minutes, “‘We Didn’t Want to Leave’: Sisters Dragged Kicking and Screaming from Sunshine Coast Home to Live with Italian Father Break their Silence” 60 Minutes website, 12 Apr. 2015. Available at http://www.9news.com.au/national/2015/04/12/00/27/vincenti -sisters-tell-60-mins-of-their-ordeal (last accessed 20 Oct. 2016). They later explained that the source of distress was leaving their lives in Australia. 51 [2016] ewhc 1657. 52 It was reported that the younger boy “feared for his life. His heart was pounding. He said his mother would kill him. He would not eat anything as she would poison him.” M. v B. [2016] ewhc 1657, at para. 23. 53 In M. v B. [2016] ewhc 1657 a court order for the removal from school was made and executed in the same day. See para. 19.

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is happening. There are many other cases involving deeply distressed children enduring enforcement of such orders.54 There are also many cases whereby children are taken with no preparation from primary carers who are impeding contact but otherwise caring.55 It has already been outlined in Chapter 5 that the coercion of the 12 year old boy in Re S.56 left him with clinical mental health problems and had to be abandoned. Likewise it was outlined in Moog v Germany that the ten year old boy suffered violent outbursts at contact visits, and required therapy.57 In a Hague Abduction case where a ten year old boy had been brought to Israel from the us after years of litigation between parents, the Israeli court did not accept that the boy’s views about wanting to remain with his mother were “his own”, but they believed his threats of suicide to the extent that they refused to return him to the us.58 There are, unsurprisingly, high levels of mental health problems in cases involving such acrimony, with child depression and threats of suicide not uncommon.59 Much of this distress likely has roots in the problems and/or poor behaviour of one or both parents, but much of it likewise seems to be

54 See for example M. (A Child) [2014] ewca Civ 1519 at para. 14. 55 See A. (A Child) [2007] ewca Civ 899 where the order for a change of residence had been made on the 30 March and the handover was on the 1 April – a total of one day preparation. See also the ordered handover in the courtroom canteen of a fifteen month baby in H. v S. [Surrogacy Agreement] [2015] ewfc 36. See Christopher Booker, “A Judge with Little Time for Free Speech” The Telegraph (9 May 2015), available at http://www.telegraph .co.uk/comment/11595216/A-judge-with-little-time-for-free-speech.html (last accessed 16 Nov. 2016). 56 As noted in previous chapters, the many phases of this case can be followed through the reported judgments: t.e. v s.h. and S. [2010] ewhc 192; Re S. (A Child) [2010] ewca Civ 291; Re S. (A Child) [2010] ewca Civ 325; and the case review when forced transfer of residence failed: Re S. (A Child) [2010] ewhc B2. 57 Moog v Germany 23280–08 (Judgment (Merits and Just Satisfaction) – Court (Fifth Section)) [2016] echr 839. 58 FamA (Dist TA) 1167/99 R. v L. (unreported, 3 July 2000) [incadat cite: HC/E/IL 834]. See further Rhona Schuz, The Hague Child Abduction Convention: A Critical Analysis (Hart, 2014). 59 See for example f.k. v m.l. (Child’s Objections) [2016] ewhc 517 and Re A. and B. (Children) [2013] ewhc 4150 (para. 12) in which there were concerns about the likelihood of the child self-harming. See also Re M. (Republic of Ireland) (Child’s Objections) ( Joinder of Children as Parties to Appeal) [2015] ewca Civ 26, para. 124; M. v B. [2016] ewhc 1657 and Australian case Jevons and Jevons 2014 FamCA 220 where one of the children suffered “bouts of distress, anxiety and unhappiness … who in the past year has self-harmed” (para. 21).

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due to adversarial legal systems which simply do not put children first, but rather adult concerns and legal doctrine such as the presumption in favour of return.60 The standard of harm is so high in Hague Convention cases as to be unrecognisable in the context of family law and the best interest principle, apparently in pursuit of a quick return, and respect for the legal systems of other jurisdictions.61 The dicta of us case Friedrich dominates interpretation of the scope of the grave risk exception. Physical harm was limited to “imminent danger” such as war, famine, or disease. Psychological harm was limited in Friedrich to “serious abuse or neglect, or extraordinary emotional dependence” which the country of habitual residence is unable to protect against.62 Courts emphasise that the distress of “an unwelcome return”63 does not fit the harm envisioned in the Convention and courts have been willing to accept high levels of harm indeed.64 There needs to be greater and more explicit recognition that overriding a child’s autonomy is very likely going to be harmful. It also needs to be recognised that it is this matter, rather than the adults’ perception of what constitutes harm (for example perceived harm likely to arise from the child’s wishes), which should be treated as the more important type of harm. The ready acceptance by the courts that harm to children is inevitable renders unjustifiable the mantra that children need protection from their own decisions. Courts are correct that harm is inevitable – but it should be children who are seen to be the primary experts on what is more or less harmful for them in their personal lives.

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It is notable that in M. v B. [2016] ewhc 1657 the court did not order that the 12 year old boy be properly heard before his return, partly on the basis that the resulting delay would be difficult financially for his mother as she would remain in the uk in the interim awaiting the decision. It is questionable whether this respect for other legal systems is justifiable – protection against domestic violence, for example, is notoriously lacking in most jurisdictions. Friedrich v Friedrich, 78 F.3d 1060, 1069 (6th Cir. 1996). Re C. (Abduction) (Grave Risk of Psychological Harm) [1999] 2 fcr 507, para. 517. See for example v.g. v r.b., an Israeli case. The child was ordered to return to Israel to his father in spite of having had no contact for two and half years, and in spite of the stark change in culture (he had been living an orthodox Jewish lifestyle). The court considered that these factors combined with the removal of the boy from the care of his primary carer mother was held to reach the grave risk threshold, yet his return was ordered anyway. FamC (BSH) 3450/07 v.g. v r.b. Nevo, 9 Jan. 2008 (Isr). See further Schuz, note 58, at 275.

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Significant Harm in the Context of Respect for Children’s Autonomy

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The Parental Presumption: Could We Also Have a Child Presumption?

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I believe that as young people, innocent to the situation we have been put into, it is our thoughts, our wishes, and our feelings that are most important, and first priority in our family cases.65 The presumption that parents will care for their children, which exists in all jurisdictions,66 is a useful principle to compare to our treatment of children as individuals in best interest proceedings. A high threshold must be reached before states will interfere with the decisions of parents about their children.67 This fact makes it difficult to justify the approach of courts to children’s own choices for themselves. Parents are after all making decisions about or on behalf of another individual (their child) in relevant cases, whereas in best interest decisions, a child’s wishes are about their own person. There is a strong presumption that parents act in the best interests of their children, and that they should therefore be allowed to make decisions for their children unimpeded except in the most extreme of situations. In the England and Wales case of Re k.d. (A Minor Ward) (Termination of Access),68 the court encapsulated this well by outlining that “[t]he best person to bring up a child is the natural parent. It matters not whether the parent is wise or foolish, rich or poor, educated or illiterate, provided the child’s moral and physical health are not in danger.”69 The reluctance of the state to interfere in the family is one 65

Fifteen year old girl speaking about child inclusion in family court proceedings quoted in Jennifer McIntosh, “Four Young People Speak about Children’s Involvement in Family Court Matters” 15 Journal of Family Studies 98 (2009), at 99. 66 In England and Wales see Re k.d. (A Minor Ward) (Termination of Access) [1988] 1 AC 806 at 812; in Canada B.(R.) v. Children’s Aid Society of Metropolitan Toronto, [1995] 1 s.c.r. 315, at 372; and in the us context Troxel v Granville, 530 u.s. 57, 65; 120 S Ct 2054, 2060 (2000). 67 Kenneth Burns, Tarja Pösö, and Marit Skivenes, eds, Child Welfare Removals by the State: A Cross-Country Analysis of Decision-Making Systems (Oxford University Press, 2016), at 2. Research indicates that the term ‘threshold’ is used more readily in the uk whereas in the us for example, the term ‘substantiation decisions’ is often used. See Dendy Platt and Danielle Turney, “Making Threshold Decisions in Child Protection: A Conceptual Analysis” 44 British Journal of Social Work 1472 (2013), at 1475. 68 [1988] 1 AC 806, at 812. 69 In Troxel v Granville the us Supreme Court struck down a Washington grandparent visitation statute because it unconstitutionally infringed on the fundamental parental right to

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of the primary tenants of liberal democracies. The state aims to protect the “fundamental liberty interests” (us)70 or “autonomy” (England and Wales)71 of parents. States parties to the European Court of Human Rights must act in conformity with Article 8 which recognises the right to respect for private and family life without interference, subject to the usual provisos of that instrument.72 This high threshold in liberal democracies is, at least to some degree, with the aim of protecting ‘families’,73 thereby ensuring that children enjoy living in a family unit which is free from undue interference – this is one of the principles or scenarios where the interests of children and those of their parents are deeply intertwined. Furthermore, in a pluralist society, many different ways of living (including questionable parenting) should be accepted.74 Interestingly, it is very rare to find an equivalent approach to children’s own decisions – that we have to accept divergent values in people’s, and therefore children’s, personal lives. There does not appear to be any family law case in which, for example, the court has considered children’s right to live how they fit, for example where they are resisting contact with one parent. It does not seem to be acknowledged in any case that although both parents will be important in most children’s lives, that in some scenarios this will not be the case. For some children, they may simply not enjoy the company of one parent for whatever reason – this is made very clear in research in the area.75 And this be free from third party interference, emphasising that courts must apply “a presumption that fit parents act in the best interests of their children.” 530 u.s. 57, 65; 120 S Ct 2054, 2060 (2000). 70 In Troxel v. Granville (ibid) the us Supreme Court stated that “the interest of parents in the care, custody and control of their children … [is] perhaps the oldest of the fundamental liberty interests recogni[s]ed by this Court.” At 2060. 71 Re m.a. (Care Threshold) [2009] ewca Civ 853. 72 See further Burns, Pösö, and Skivenes, note 67, at 2. In Article 8 the proviso is that interference is permitted where it is “in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 73 Re m.a. (Care Threshold) [2009] ewca Civ 853. 74 Re L. (Care: Threshold Criteria) [2007] 1 flr 2050, at para. 50. 75 See for example Anne Smith, Nicola Taylor and Pauline Tapp, “Rethinking Assumptions about Children’s Competence to Participate in Family Decision-Making after Parental Separation” 10 Childhood 201 (2003), at 205 and Yvonne Darlington, “Experiences of Custody Evaluation: Perspectives of Young Adults Who Were the Subject of Family Court Proceedings as Children” 3 Journal of Child Custody 51 (2006), at 59. See also Chapter 5, Section 4.3.2.

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should be accepted by courts in some cases.76 In a rare instance of respect for a child’s values, where a dying child wished to arrange to be cryogenically preserved after death (her estranged father opposed this), the court stated that the case was not “about whether js’s wishes are sensible or not. We are all entitled to our feelings and beliefs about our own life and death, and none of us has the right to tell anyone else – least of all a young person in js’s position – what they must think.”77 Yet this case was, essentially, about the plans of a dying child for her body after death, and not the typical family law case at all.78 It is in these extreme cases that judges seem to feel most comfortable affording greatest respect to children’s views and wishes. Why not in all cases? If in this difficult case the court could emphasise the need to respect the wishes and beliefs of every individual, including those of the child in question, then why are decision-makers so reluctant to do so in other, less serious cases concerning more everyday matters such as contact? It is illogical that such disparity exists between different types of cases, all involving children’s wishes, but it does. If parental autonomy can be treated with such seriousness, then so too can children’s own autonomy. Moreover, if children’s autonomy can be given such priority in life and death cases, then it can be done in other types of cases too. The starting point in decisions about children’s best interests should be that autonomy is crucial, and that children’s wishes should therefore not be overridden without a very pressing reason. There will always be competing reasons to override children’s wishes, and the case law demonstrates that decisionmakers are very quick to rely on these reasons, reasons such as the importance of contact with a parent (sometimes even where fathers are domestically violent)79 and the value of inoculations (even for a girl of 15 years who does

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As outlined in Chapter 5, Section 4.3.1, in child protection cases children’s desire not to see family members appears to be accepted very readily. See for example P. (A Child) [2016] ewca Civ 1127 and in Canada Protection de la jeunesse: 127430, 2012 QCCQ 17707. Re j.s. (Disposal of Body) [2016] ewhc 2859, at para. 31. The respect accorded to the autonomy of JS was evident in spite of the fact that it was not technically a ‘best interest’ case but instead turned on the question “can a prospective order be made in life, to take effect after death?” (Ibid, para. 55). See further Rob George, “Making Determinations During Life About the Disposal of a Body After Death” 39 Journal of Social Welfare and Family Law 109 (2017). See for example Gillian Macdonald, Domestic Violence and Private Family Court Proceedings: Promoting Child Welfare or Promoting Contact? (Centre for the Analysis of Social Policy, University of Bath, 2013), at 7 and Kirsteen Mckay, Hearing Children in Court: Disputes Between Parents (Centre for Research on Families and Relationships: Briefing 65, Jan. 2013).

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not want them).80 This is why the standard must be set high in order to ask the question: Is it really necessary to override the child’s wishes in this case, considering the importance of autonomy? If autonomy is properly prioritised, in most of these cases, the answer will be no. In most of the relevant cases, it is highly questionable if harm would arise at all, let alone significant harm. Some children do not have a relationship with their non-resident parent;81 research indicates that children are more likely to retain relationships if they are not forced;82 and relationships can likely be later rebuilt.83 Some families choose not to inoculate their children, and though it is generally seen as unwise, it is not against the law.84 So in many, many of these cases, one has to admit that little or no harm would arise from upholding the child’s wishes, and in any case it is difficult to say as it is so hard to predict outcomes in such cases. Interference with Parental Authority in Domestic Law: Significant Harm What can we learn from the definitions of ‘significant harm’ in child protection laws that could be applied to a limitation on courts for overriding children’s autonomy? In a number of jurisdictions, such as England and Wales,85 3.2

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F. v F. [2013] ewhc 2683. See for example in the us context Caroline Sten Hartnet et al., Without the Ties that Bind: Young Adults Who Lack Active Parental Relationships (University of Michigan Population Studies Center Research Report 16–870, 2016). The report notes that 20% of young adults do not have a relationship with their father (compared to 6.5% who do not have a relationship with their mother). This is not to say it is necessarily positive that a lack of relationship is common, but it should be accepted that it is a common fact of life. Ann O’Quigley, Listening to Children’s Views: The Findings and Recommendations of Recent Research (Joseph Rowntree Foundation, 2000); Felicity Kaganas, ‘Contact, Conflict and Risk’, in Shelley Day Sclater and Christine Piper, eds, Undercurrents of Divorce (Dartmouth, 1999) and Heather Smith, Children, Feelings and Divorce: Finding the Best Outcome (Free Association Books, 1999). Janet Johnston, “Children of Divorce Who Refuse Visitation”, in Charlene Depner and James Bray, eds, Nonresidential Parenting, (Sage, 1993), at 124 and Judith Wallerstein and Joan Kelly, Surviving the Breakup- How Children and Parents Cope with Divorce (Basic Books, 1980). See in contrast F. v F. [2013] ewhc 2683 in which an order was made for two children, one aged 15, to receive inoculations against their will (and against the will of their mother) because their father desired it. See Children Act 1989, Section  31(2). Intervention is also permitted where the child is “beyond parental control”. As noted in Chapter 3, Section 6.3.1, the jurisdiction for such interference relies in common law countries on exercise of the Crown’s parens patriae (“parent of the land”) – jurisdiction for care of children. The jurisdiction also includes

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the threshold for interference with parental autonomy is reached where the child is suffering, or is likely to suffer, “significant harm”.86 The England and Wales legislation defines ‘harm’ as “ill-treatment or the impairment of health or development.”87 Government guidance88 states that it is necessary to consider the nature of harm, the impact on the child, any special needs, the capacity of parents, the family and wider context.89 In Ireland, the significant harm threshold is reached when the child’s well-being and/or development is severely affected.90 In Australian Capital Territory the question of whether there is significant harm or a risk of it focuses on whether basic needs are being met,91 and whether “abuse and neglect” (or the likelihood of these factors) are present.92 Though the terminology varies between nations, the concept remains largely the same – before intervention is permissible, the harm or risk of harm to the child must be significant or serious.93 The presumption before that level of harm is reached (or likely to be reached in the future) is that parents must be free to make decisions for their children and raise them as they see fit. Would it be sufficient to have a standard whereby the justification for overriding children’s views would be simply where ‘harm’ was likely rather than ‘significant harm’? It seems that one of the problems with the treatment of

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those lacking mental capacity. See further David Day, “The Capable Minor’s Healthcare: Who Decides?” 86 Canadian Bar Review 379 (2007). See also Section 23 of the Children and Young People Act 2008 of the Australian Capital Territory. In the us, see Doe v. Doe, 172 P.3d 1067, 1079–80 (Haw. 2007) where it was stated that a third party seeking visitation with a child also has to prove ‘significant harm’ to the child will result without that visitation. The Children Act 1989. Section 31(10) of the Act states that a child’s “health or development” in a particular case should be compared with that expected of a similar child. Department of Children School and Families (England and Wales), Working Together to Safeguard Children: A Guide to Inter-Agency Working to Safeguard and Promote the Welfare of Children (Department of Children School and Families, 2010). Ibid, para. 1.29. See Section 18 of the Child Care Act 1991 and Health Service Executive, Child Protection and Welfare Practice Handbook (Tusla, 2014). Children and Young People Act 2008 of the Australian Capital Territory, Section 23. Ibid, Section 34. See also in Norway the threshold for intervention is crossed where there are “serious deficiencies” in care and/or where there is “every probability that the child’s health or development may be seriously harmed …” See Marit Skivenes, “Norway: Towards a ChildCentric Perspective” in Neil Gilbert, Nigel Parton and Marit Skivenes, eds, Child Protection Systems: International Trends and Orientations (Oxford University Press, 2011). In the us, though practice varies between states, at Federal level the threshold involves “an imminent risk or serious harm.” Child Abuse Prevention and Treatment Act, 1974.

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children’s views and wishes to date lies squarely in this area. Although it may not have been explicit, judges have been anticipating some sort of ‘harm’ to children emanating from what those children are seeking. ‘Harm’ is of course a subjective concept. Judges are inevitably going to decide that, for example, losing contact with the non-resident parent is necessarily ‘harm’, or choosing the wrong school is harm, or foregoing inoculations is harm. And any of these reasons are sufficient to override children’s wishes. If the standard remains at ‘harm’ it is likely that judges will continue to interpret the ‘best interest’ approach to mean overriding children any time that it seems convenient to do so in order to achieve the outcome the judge deems best. Harm is often approached by courts in a way which best suits the requirements of the judgment being made. On the one hand, judges are willing to emphasise that ‘harm’ in the course of childhood is normal, predictable, unavoidable.94 Yet judges are also very quick to justify the use of their discretion to override children’s wishes by relying on some potential future harm, suggesting that they do in fact seek to avoid harm that is merely potential, hypothetical, suppositional (such as potential harm from loss of contact with a parent). Therefore to achieve any prominence for children’s autonomy in proceedings, a change of approach will require that some sort of significant harm is likely before children’s wishes are overridden. Defining Significant Harm: “[E]xceptional rather than Commonplace” Of course, it is necessary to identify what might constitute significant harm in such a scenario in order to distinguish between ‘harm’ and ‘significant harm’ and once again it is useful to turn to child protection law. Establishing the threshold for interfering with parental autonomy is highly controversial and the standard shifts within and across countries over time,95 rendering it a controversial matter.96

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94 See Re L. (Care: Threshold Criteria) [2007] 1 flr 2050, at para. 50. 95 Trevor Spratt et al., “Child Protection in Europe: Development of an International CrossComparison Model to Inform National Policies and Practices” 45 British Journal of Social Work 1508 (2015), at 1520. The countries included in the research were Finland, the uk, Sweden, Germany and Australia. 96 There are different types of intervention of course. Something which constitutes ‘support’, like an offer of parenting education classes, could be considered ‘intervention’, but what I am envisaging here is a forcible intervention, the most serious of which is taking children into state care.

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Attempts to define what might constitute significant harm in this area have proven difficult,97 but there is an understanding in England and Wales that ‘significant’ should be taken to mean “considerable, noteworthy or important”;98 “the exceptional rather than the commonplace.”99 The type of harm usually considered by the courts is abuse and/or neglect by parents which reaches this ‘significant’ level.100 These points give some useful insight into how the children’s autonomy principle could work. Clearly if a child’s wishes will likely result in harm to this significant, ‘usual’; ‘exceptional’ degree then it would be justifiable to override those wishes. The most obvious case would be where a child wishes to live or have contact with a parent who will likely cause them such harm. In P.–S. (Children)101 for example a 15 year old boy, M, appealed the decision that he would remain in state care rather than return to live with his mother, who had been determined to be highly negligent in the care of her children.102 In a case like this, where the significant harm threshold has already been reached, it is unlikely that a child’s wishes to remain with a carer can be upheld. What visible difference would it make to best interest decisions if the children’s autonomy principle was being applied? For one thing, in contact decisions in child protection cases, a higher threshold of harm would likely have to be reached before courts could justifiably deny children’s wishes to see their families.103 The case in Ireland outlined in Chapter 5 whereby a girl was not permitted to have indirect contact with her father provides a useful example. Another child had made an allegation of abuse against him, and the girl wished to have indirect contact with her father while a final child protection hearing was being awaited. In this scenario it would likely not have caused significant harm to allow that indirect contact to proceed, as it would simply have involved phone calls or letters. Even if there would have been emotional distress from this contact, this does not seem to outweigh the distress of 97

Heather Keating, “Re MA: The Significance of Harm: Case Commentary” 23 Child and Family Law Quarterly 115 (2011), at 121. 98 In Humberside County Council v B. [1993] 1 flr 257. 99 Re L. (Care: Threshold Criteria) [2007] 1 flr 2050, para. 51. 100 See for example in the Irish context Health Service Executive, Child Protection and Welfare: Practice Handbook (Health Service Executive, 2011), at 10. 101 [2013] ewca Civ 223. 102 M also appealed the decision not to permit him to testify by video link, see Chapter 4, Section 3.3.4. 103 The desire for contact or for more contact with birth families is a point consistently raised by children in care when they are asked about their views on and experiences of care, see Chapter 5, Section 4.3.1.

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autonomy denial and being prevented from contacting a parent (it is difficult to say for certain of course without access to more information on the case).104 In family law children would be ordered into contact visits against their will less frequently if a children’s autonomy principle was applied. In some cases, paternalism would still be engaged: If fact-finding established parental manipulation to be present in a given case to a serious extent, manipulation which was causing significant harm, then it may not be as simple as observing a child’s wishes. Some such cases where children resist contact, like H. (Children)105 – in which an older brother was attempting to influence the younger boys to sabotage visits with their father, (disturbingly) encouraging them to “[b]reak, destroy and burn”106 – have strong elements of a child protection case because of the existence of what is, essentially, emotional abuse. Yet, the potential level of harm from forced changes of residence would also have to be considered in such cases.107 Other arrangements may have to be made in such a case rather than forced change of residence to the estranged parent, such as temporary residence with a neutral family member. The focus of best interest proceedings should obviously be on the well-being of the child, rather than repairing the relationship with the estranged parent (at all or at least high costs), as appeared to be the focus in H. (Children)108 and Re S.,109 for example. Munro argues in child protection for a ‘risk sensible’ rather than a risk adverse approach, on the basis that no option will be absolutely safe.110 How likely should it be that the significant harm will occur for a child’s wishes to be overridden? In England and Wales, where significant harm has not yet occurred but is likely to occur, there must be “a real possibility that it will occur.”111 This does not mean that the likelihood must be higher than 50% but that there is a real, substantial risk. If there are disputed facts about past events, however, the court must make a finding of fact before it can treat the past event as a basis 104 Chapter 5, Section 4.3.1. 105 [2014] ewca Civ 733. 106 Para. 24. 107 See the harm caused by attempted change of residence in Re S. note 56. Other private law cases involving child protection questions over the behaviour of resident parents include Re H.–W. (A Child) [2017] ewca Civ 154; A. (A Child) [2013] ewca Civ 1104; Re R. (A Child) [2009] ewhc B38 and Australian case Udall & Oaks (No 2) [2015] FamCA 1101. The poor behaviour of the parent need not necessarily mean the feelings of the child are not very real, however, as most particularly demonstrated by Re S. note 56. 108 [2014] ewca Civ 733. 109 Re S. note 56. 110 Eileen Munro, The Munro Review of Child Protection: Final Report – “A Child Centred System” (Department of Education of England and Wales, 2011), at 43. 111 Re H. and R. (Child Sexual Abuse: Standard Of Proof ) [1996] AC 563, at 585F.

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for a finding of future risk.112 A similar test could be used to establish whether significant harm would be likely to arise from following children’s wishes. It may also be necessary to make a finding of fact for the purpose of verifying whether there is a reason for refraining from implementing the presumption in favour of children’s wishes, for example if there is reason to believe that children are being pressured or manipulated by parents or others (see further below at Section 6). Courts have in the past ordered reports on similar matters – in Ciccone v Ritchie (No 1)113 for example the court ordered a finding of fact as to whether there was ‘undue influence’ on the child from a parent. In the case of Re M. (Republic of Ireland) (Child’s Objections) ( Joinder of Children as Parties to Appeal)114 the court sought to determine whether the children were ‘genuinely’ afraid of their father based on actual events. The judge in this case acknowledged the difficulty of such an exercise, but pointed to the capacity of judges to make findings of fact in a manner which is fair: “[T]he experienced judges of the Family Division usually find a way through which will do justice in a summary fashion without prejudicing the parties, the children or the prompt resolution of the proceedings.”115 Findings of fact are made regularly, even in private law cases, in order to establish which outcome is in the best interest of the child. It therefore would not be any different to employ such methods for the purpose of applying the children’s autonomy principle. Decision-making in best interest proceedings is not, of course, an exact science. It is well accepted amongst commentators that research on how decisions are made to take children into care is minimal116 and that there are many uncertainties about predicting and determining significant harm, and little empirical research to provide guidance.117 Efforts are being made by a number of commentators to try to gain greater insight into this crucial question.118 112 Re. S.–B. [2009] uksc 17. 113 [2016] ewhc 608. 114 [2015] ewca Civ 26, para. 121. 115 Ibid, para. 121. 116 See for example Burns, Pösö and Skivenes, note 67, at 3; Karen Broadley, “Making the Decision to Remove a Child from Parental Care: Twelve Decision-Making Criteria” 41 Children Australia 90 (2015); Cora Bartelink, Tom van Yperen and Ingrid ten Berge, “Deciding on Child Maltreatment: A Literature Review on Methods that Improve Decision-Making” 49 Child Abuse and Neglect 142 (2015). 117 See for example Bartelink, van Yperen and ten Berge, ibid; Platt and Turney, note 67; and Phillip Gillingham and Leah Bromfield, “Child Protection, Risk Assessment and Blame Ideology” 33 Children Australia 18 (2008). 118 See ibid, Broadley, note 116 and Burns, Pösö, and Skivenes, note 67.

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Broadley, for example, puts forward criteria to assist practitioners make decisions about child removal.119 These criteria are as follows: [T]he severity of the abusive incident; the presence of cumulative harm; whether the perpetrator has access to the child; the functioning of the parent; whether the perpetrator has been responsible for child abuse or intimate partner violence in the past; the cooperation of the parent; the intent of the perpetrator; the age of the child; the functioning of the child; the voice and expressed wishes of the child; protective relationships available to the child and the statutory requirement to cause no further harm.120 This could be applied in an exercise of establishing whether significant harm would be likely to arise from following children’s wishes, as one can envisage many of the questions having an equivalent in that context – has there been abuse and if so how severe? Could a number of cumulative factors arising from the child’s wish (perhaps, for example, living a long distance from a sibling together with risk of harm from a parent) point towards significant harm? How cooperative is a parent121 in minimising the harm to the child from the option chosen? How old is the child (this may, for example, impact on the child’s ability to cope with stresses arising from a harmful situation)? The children’s autonomy principle therefore leaves a decision-maker with substantial scope to examine the possibilities for the child, and considerable leeway to avoid significant harm. Yet it still requires a high level of respect for autonomy, and sets a high threshold for overriding a child’s wishes. 4

The Concern that Children Will be Pressured or Manipulated in Proceedings

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Will Children be Put under Pressure by an Autonomy Principle? I know it was very hard for Dad to hear that I did not want to see him, but if that is the truth … it was my decision.122

119 Broadley, note 116. 120 Ibid. 121 This question would likely concern the parent supporting the child’s decision, see Re j.s. (Disposal of Body) above in which the child’s mother supported the child’s plan for her deceased body. 122 Child quoted in Lisbeth Pike and Paul Murphy, “Invisible Parties: Listening to Children: A Social Science Perspective” Paper presented at Australian Family Law Conference (Perth, 24 Oct. 2006), at 8.

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Many commentators worry about the potential pressure for children if too much importance is placed on their wishes, and may therefore resist the children’s autonomy principle on this basis. Yet children are often surprisingly willing to give their views and to seek influence in proceedings affecting them. It is true that children may feel divided loyalties, torn between two parents in private cases (discussed further below)123 or not wanting to get parents in trouble in child protection cases.124 Children sometimes fear that they will upset parents by giving their views in proceedings.125 As one interviewee expressed: I was glad I didn’t get asked. Definitely. Because I wouldn’t want to upset mum or dad. Even though they would probably say we won’t be hurt I know that they would be.126 Yet children can refuse to be involved in proceedings affecting them. They can certainly decline the possibility for a rebuttable presumption in favour of their wishes. Their reluctance should not prevent other children, in different circumstances, from having influence. There is also a risk that children may uncover information about, for example, abuse or parentage which it may be harmful to a child to learn at a young age.127 Yet children are already likely familiar with the problems which have led to litigation.128 Available research in fact highlights a high degree of frankness on the part of children in family law proceedings. May and Smart point to their willingness to state clear preferences: [M]any children took the opportunity to state their preferences clearly. This took us by surprise because the straightforwardness of many of the

123 See for example Rachel Birnbaum, Tamar Morag and Francine Cyr, “The Twists and Turns of Children’s Participation in Family Disputes: What a Tangled Web Professionals Weave” Paper presented at 6th World Congress on Family Law and Children’s Rights (Sydney, Mar. 2013), at 7; Greg Mantle et al., “Whose Wishes and Feelings? Children’s Autonomy and Parental Influence in Family Court Enquiries” 37 British Journal of Social Work 1473 (2007), at 786. 124 Pirjo Polkki et al., “Children’s Participation in Child Protection Processes as Experienced by Foster Children and Social Workers” 18 Child Care in Practice 107 (2012). 125 The judge suspected this was the case in the New Zealand case of H. v H., FC Nelson, FP 042/107/91, at 12. See Nicola Taylor et al., Children’s Rights in New Zealand Family Law Judgments; Research Report (Children’s Issues Centre, University of Otago, 2000), at 13. 126 Adult describing experience as child of parental separation, cited in Jane Fortin, Joan Hunt and Lesley Scanlan, Taking a Longer View of Contact: The Perspectives of Young Adults who Experienced Parental Separation in their Youth (Sussex Law School, 2012), at 226. 127 See the mother’s reluctance to inform her daughter about the extent of the dispute between her parents in G. (A Child – Intractable Contact) [2013] ewhc B16. 128 Douglas et al., note 35, at 50.

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children’s views (as reported on file) seems to sit uncomfortably ­alongside the coyness that currently surrounds the subject of speaking to children on sensitive issues.129 Many children argue that they wish to give their honest views, even though it may be painful for their parents and themselves. Natalie’s journey, which involved a fear of telling her mother that she wished to live with her father, but an ultimate celebration on telling the truth, reflects this: She sat us down in the bedroom and said “Right, who do you want to live with, me or your dad?” and I said “Dad” and she was crying like and she was going to the airport and I started crying ’cos obviously I’m upset. [The court order reflected her wishes] I was happy about it, I had a big celebration, when I was waiting for the news, and then we heard the news and then we were happy.130 In spite of adult concerns, and contrary to what is commonly believed, many children want to express, and obtain, their preferred outcome. The assumption therefore that choices need necessarily be harmful is highly problematic. The emphasis on child-specific factors – the harm to the child, the burden it could place on them, and the child’s competence – is understandable to a degree, but often misplaced. It is the ability of adults to support children which should be seen as the main factor in securing a good process for hearing children. 4.2

Manipulation by Parents: Separating Myth from Reality It might be a good idea if the judge could actually meet the children so he could see their personalities and if they have got quite a strong personality he might know that what they are saying can’t be influenced by anyone else.131

129 Vanessa May and Carol Smart, “Silence in Court?: Hearing Children in Residence and Contact Disputes” 16 Child and Family Law Quarterly 305 (2004), at 315. Likewise Pike and Murphy found that: “Children were prepared to speak honestly, aware that it may hurt parents.” Pike and Murphy, note 122, at 11. 130 Eleven year old girl with experience of family law proceedings, quoted in Douglas et al., note 35, at 101. 131 Sixteen year old girl with experience of family law proceedings, quoted in Douglas et al., ibid, at 90.

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Some children feel divided loyalties in family law disputes, and this can be a real barrier to their willingness to express wishes. Yet children can be supported to decline the invitation to give views, and to have wishes held as determinative, as well as they can be supported to accept that offer if they wish. Parents do indeed rely on children’s wishes to further their own arguments.132 But is this necessarily a negative thing in all cases? If your child’s wish accorded with your own in litigation, then it is surely reasonable to raise that as a relevant factor. In any case, as outlined in Chapter 4,133 professionals such as guardians ad litem134 and social workers135 also rely on children’s views to bolster their own perspectives and arguments. In fact, as pointed-out in Chapter 5, judges appear to do this too, giving children’s views great ‘weight’ where they [judges] agree with them. The relevance of a child’s wishes to the position of other interested individuals should be a fact of life to be dealt with rather than a reason to exclude children or to fear their viewpoint. It should be acknowledged however that the negative effects of litigation on children can obviously be exacerbated where parents actively try to pressure children or to manipulate their views.136 One of the most frequent fears cited by those opposed to (and even those sympathetic to) children’s involvement in proceedings is that parents will be tempted to sway, brainwash, bribe children to favour their own position. Parents do sometimes attempt to manipulate the child’s views of the other parent137 (and the child’s views of authorities in child protection).138 Parents can fail to recognise the effects of their poor behaviour on their children in many areas in family breakdown (and other contexts, of course).139 But instances of undue pressure and manipulation are rare140 and 132 Janet Johnston, note 38, at 760. 133 Section 1.3. 134 Liz Trinder, Christopher Jenks and Alan Firth, “Talking Children into being in Absentia?: Children as a Strategic and Contingent Resource in Family Court Dispute Resolution” 22 Child and Family Law Quarterly 234 (2010). 135 See Karen Winter, “Decision-making Processes in Review Meetings for Children in Care: A Bourdieusian Analysis” in Leena Alanen et al., eds, Childhood with Bourdieu (Palgrave Macmillan, 2015). 136 Mantle et al., note 123, at 786. 137 This appeared to be the case in, for example, H. (Children) [2014] ewca Civ 733 and Australian case Jevons and Jevons 2014 FamCA 220. 138 See for example Re Y. (Children) ewca Civ 1091, paras 11–2. 139 In England and Wales, in the Hague Convention case of M. v B. [2016] ewhc 1657 there appeared to be an element of manipulation by the father of the views of the boys involved, with the boys left – seemingly unjustifiably – terrified of a return to their mother. 140 Judy Cashmore and Peter Parkinson, “Children’s Participation in Family Law Disputes: The Views of Children, Parents, Lawyers, Counsellors” 82 Family Matters 15 (2009), at 20.

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experts believe they can identify it where it occurs, as it seems do courts,141 which regularly reject suggestions that children may have been under undue influence in their views.142 Yet there remains a preoccupation with the notion that children will likely be manipulated.143 This focus on manipulation, rather than what children are saying, is unacceptable for a number of reasons. Fortin’s research with separated children as adults gives no support to the suggestion that children are unduly influenced by the resident parent.144 Children often see through parental efforts to manipulate them – May and Smart for example refer to children’s ability to often recognise their parents’ weaknesses and power struggles in family law disputes.145 Furthermore, to divide children’s views into ‘manipulated’ and ‘their own’ fails to recognise the relational nature of experiences and of decision-making.146 In reality it is perfectly normal for children to be influenced in their views by those close to them – everyone is. In a study of the experiences of girls under the age of 18 when accessing abortion services,147 children considered parental influence as very important where they were unsure about their decision, and where parents expressed strong preferences, this was not considered a negative thing, nor did following it result in decisions which these girls felt were necessarily not ‘their own’.148 The default position should be to trust children first.

141 See for example Re j.s. (Disposal of Body) [2016] ewhc 2859, at para. 9; P. (A Child) [2016] ewca Civ 1127 para. 23; Re U.-B. (A Child) [2015] ewca Civ 60, at para. 39; and An nhs Trust v a.b.c. and A Local Authority [2014] ewhc 1445, para. 14. 142 See for example Re. B. (A Child by her Guardian) [2017] ewhc 488, para. 29, in which the judge stated that she would “reject as unlikely” the possibility of parental influence suggested by the guardian: “[F]or two reasons – the child had obviously felt more than able to express negative feelings about Pakistan to the guardian some months before, and secondly, there were good objective reasons, independent of her mother’s wishes, why B was more settled, not least that she enjoyed being [at] school and had made her own friends; as well as having another relative living at home.” 143 See Chapter 5, Section 1.3.3.3. 144 Fortin, Hunt and Scanlan, note 126, at 246. 145 May and Smart, note 129. 146 Herring makes the point that: “Influence in and of itself does not indicate that a child is unable to form a view for herself.” Jonathan Herring, “An Injection of Sense” New Law Journal 9 (8 Nov. 2013), at 10. Available at https://www.newlawjournal.co.uk/content/ injection-sense (last accessed 2 Feb. 2017). 147 Ellie Lee, “Young Women, Pregnancy and Abortion in Britain: A Discussion of Law in Practice” 18 International Journal of Law, Policy and the Family 283 (2004). 148 Ibid, at 294.

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Where parental manipulation or pressure (as opposed to advice, conversation and so on), sometimes called ‘undue influence’, is proven to be a problem in a particular case, then the presumption in favour of children’s wishes which I am advocating could be set aside. An equivalent approach has been taken in medical law. In Re T. (Adult)149 in England and Wales, it was determined that a patient’s consent may not be valid if it is given under pressure from another person. In this case, T., a 20-year-old pregnant woman, had been pressurised by her mother, a practicing Jehovah’s Witness, to refuse necessary blood transfusions. This, together with the effects of other drugs with which she was being treated, impaired her ability to consent, and therefore the court permitted the blood transfusions to proceed. Therefore it does not appear to be unjustifiably paternalistic to apply a similar standard (and protection) to children. How is pressure and manipulation to be proven? The approach to allegations of domestic violence is relevant here. Where such allegations arise in cases concerning arrangements for children in England and Wales, guidelines have been established according to which the courts must proceed. The Court is directed to consider whether such allegations are well founded (and if they are, the extent to which the violence affects the child).150 Similarly, in cases where pressure and manipulation are suspected or alleged, the allegations should be investigated to establish if they are well founded. Such action by parents should be seen as significant even outside of the matter of a child’s wishes – pressure and manipulation should clearly be considered to be inherently harmful to children.151 4.3

Vulnerability is Relevant to Determining Significant Harm Age strongly affects our ability to take decisions; the older you are, the more experience you have.152

149 [1992] 4 All ER 649. 150 Re L., V., M. and H. [2001] Fam. 260 and Practice Direction: Residence and Contact Orders: Domestic Violence and Harm [2009] All ER(D) 122. It has been found, however, that this does not always occur in practice. See for example Maddy Coy et al., Picking up the Pieces: Domestic Violence and Child Contact (Rights of Women and cwasu, 2012). 151 See Hague Convention case M. v B. [2016] ewhc 1657 where the father appeared to be manipulating the children against their mother (though the judge did not make a finding of fact on this), which contributed significantly to their distress when they were removed without any warning to her care. 152 Fifteen year old Polish girl in care, quoted in European Commission, Evaluation of Legislation, Policy and Practice on Child Participation in the European Union: A Final Report to the European Commission Directorate-General for Justice (European Commission, 2014), at 174.

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Respecting autonomy necessitates acknowledging vulnerability and where individuals cannot make choices for themselves. In some best interest decisions it may not be possible to simply ask a child what their preference is. Sometimes this will be relatively clear – where an infant cannot communicate their wishes in the traditional manner, for example. There will be other grey areas, however, such as where children are verbal but very young; or where they have significant mental health problems or cognitive impairment. In these cases it may not be possible to apply the presumption in favour of children’s wishes, though it is crucial not to automatically dismiss altogether the wishes of children from these groups, or their potential to express wishes, as courts often do.153 The notion of children’s ‘competence’ – essentially their decision-making abilities – is often relied upon heavily in determinations of the “due weight” to be attributed to their views and wishes. The level of emphasis on ­competence is undue, because, as considered in Chapter 3, the search for legal capacity demonstrates that we know so little about such matters.154 The prioritisation of competence also fails to provide adequate recognition of children as ­individuals – as we do know so little about how to define competence, it is easy for adults to fill the gap with our assumptions, to use the lack of clarity to our advantage, and to override children’s views when they are inconvenient. Of course age and maturity will have to be relevant to a test of whether ‘significant harm’ will likely result from a particular choice, however. The younger or less mature a child, the more vulnerable they will generally be. There is a danger that focusing too much on this could lead us back to the very same problems inherent in the “due weight” concept. Being of a young age and/or apparently lacking maturity could be used as an excuse to override children’s views in any given scenario without much justification. In particular, younger children will be particularly at risk of having their wishes overridden on this basis. There will, however, be crucial differences between the children’s autonomy principle and the current approach. The children’s autonomy principle requires that judges consider how and whether children’s wishes can be upheld, no matter what age. To accept the value of autonomy, and seek to vindicate it where possible, shifts the focus in the decision-making process. Secondly, with 153 In Irish case A.Bu. v J.Be. [2010] iesc 39 the court refused to seek the views of a child of five years, and in Australian case Robbins & Rosemount [2008] FamCA 486, para. 492, the court attached “no significant weight” to the views of the child aged six 154 Buss criticises those who “tie their analysis of children’s rights too tightly to a simple assessment of capacity” Emily Buss, “What the Law Should (And Should Not) Learn from Child Development Research” 38 Hofstra Law Review 13 (2009), at 24.

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age and maturity considered amongst other factors – such as the importance of upholding autonomy – rather than being the only factors to determine ‘weight’, the focus of best interest decisions will necessarily have significantly changed. Should there be an age before which the presumption in favour of children’s wishes would not apply? Perhaps. Whilst there should be reluctance to stereotype children by age, it is of course an important factor to consider. In Israel the age of six is set for hearing children.155 Judges speak to children aged four years in Germany.156 Yet these are, of course, ages at which children will be heard. There should be greater caution where offering children the option of having a presumption in favour of their wishes. As seven years is a point which is identified as involving such a significant milestone of development for children’s understanding,157 it seems justifiable to set this as the age at which the children’s autonomy principle should be applied, although it could be argued in a given case that a younger child wants and should have that principle applied also (as happens in Norway when it comes to hearing children).158 Many may argue that seven years is too young to be invited to have a presumption in favour of one’s wishes in a legal matter, but of course it still remains possible, under the children’s autonomy principle, to override children’s wishes where this is truly necessary (where there is a likelihood of ‘significant harm’). Moreover, children from seven, and indeed any age, should be able to refuse the option of being heard under the children’s autonomy principle and likewise they can refuse the option of a presumption in favour of their wishes (although younger children may need much assistance to understand the offer).159 Alderson suggests that in medical law there should be no age limits for the capacity to consent to treatment – capacity could be assumed, as is the practice with adults with cognitive impairment.160 And remember, Samantha, who successfully and quietly exercised her will not to have a third operation, but instead to die at home, was aged six years.161 So it may be more appropriate not to set any minimum age at all, but instead to consider the involvement of young children on a case by case basis. 155 Tamar Morag, “The Principles of the un Convention on the Rights of the Child and their Influence on Israeli Law” 22 Michigan State International Law Review 531 (2013–4), at 542. 156 Michael Karle and Sandra Gathmann, “The State of the Art of Child Hearings in Germany: Results of a Nationwide Representative Study in German Courts” 54 Family Court Review 167 (2016). 157 See Chapter 3, Section 7. 158 See Chapter 4, Section 2.2. 159 See further Chapter 7. 160 Alderson, note 39. 161 Alderson, summarising Irwin, note 39.

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Whether adopting a minimum age for the presumption of a decision in favour of a child’s wishes or not, judges will have to be more explicit about the relevance of age and maturity than occurs at present, in that these factors should not determine the treatment of the child’s wishes in the way that is presently the case. The autonomy of children under this age would have to be considered also, as seven (or another minimum age) would simply be a guiding point. Where children are particularly vulnerable or sensitive – if they have significant mental health issues or have suffered serious abuse at the hands of a party to proceedings – perhaps it would likewise be justifiable to refrain from applying the rebuttable presumption in favour of their wishes, if it would likely cause them significant upset. Judges should ask questions such as: How old is the child? How clear is it that the child understands the offer to give their views and for their wishes to be held as a crucial factor? Will any harm likely arise from the outcome they seek? If so, is it likely to be significant harm? Is the child’s age likely to make them more vulnerable to any harm related to outcomes? If there are manipulation or exploitation issues in a case, does the child’s age render them particularly vulnerable? How strongly has the child expressed those views and has the child been given adequate time and support to consider options? The decision-maker should consider these relevant questions to ensure that age (or vulnerability) is not being used as a reason to override children’s autonomy unjustifiably. The main safeguard of the children’s autonomy principle is that, if a decision-maker still sees fit to override a child’s wishes, they will have to provide detailed justification. They should make reference to the level of likely significant harm which exists in relation to the choice the child has made, and have regard for the seriousness of denying autonomy, no matter what age the child. This will be an inherent safeguard, which it is anticipated will decrease the possibility of tokenistic reliance on the ‘age and maturity’ excuse which is so evident in the case law in C ­ hapter 5 when courts override children’s wishes. The most important point is that the age and maturity factors will only be part of a determination of whether the child’s wishes would likely result in significant harm – they cannot be the totality of the reason for autonomy denial. 5

The Complexity of Reality: Resources and Other Obstacles [L]ike I think its Dad gets us for the second one [school holiday], Mum gets us for the first, Mum gets us for the third, Dad gets us for the fourth. And that’s not fair because I only get to spend 4 weeks with my Mum … because my brothers always go on holiday when I’m not there because

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they are doing it differently to us, the other way around, so we don’t get to see each other.162 Many best interest cases are concerned with a yes or no question. Should a child reside with her mother or father? Should a care order, or an order for medical treatment, be made? In such cases, it is possible to apply a rebuttable presumption in favour of an outcome in line with the child’s wishes. The binary notion of such decisions is certainly problematic – in Chapter 7 I outline how, in order to adequately facilitate children’s autonomy, they should be part of negotiations about outcomes. Yet one positive element of the rigidity of the question under examination in many cases is that where a child has a wish as to the outcome, the same yes/no approach can be taken to whether those wishes will determine the outcome. This is what makes the rebuttable presumption useful and applicable in such cases. In cases without a yes or no answer, however, its applicability is less clear cut. In these cases, the presumption in favour of children’s wishes may have to be set aside, as the genuine complications of the case – conflicting interests of siblings for example – render it impossible to treat the views of an individual child as the most important factor. 5.1 Siblings and Practical Considerations Many cases will involve a determination about the best interests of more than one child. The needs of individual siblings should be considered separately,163 as they will not always coincide. This can lead to distressing outcomes for some children, not least because different arrangements disrupt their time with and their connection to siblings: [Where order was made that younger sibling attend contact visits] I was happy ‘cos I didn’t have to go but I was kind of angry that Sarah did ‘cos like, I’ve never spent ages without Sarah and every two weeks, Sarah goes for a weekend and I don’t see her and I don’t want her to go ‘cos I always worry about her.164 The inclination of the court in favour of keeping siblings together may intersect with the best interest principle and change the ultimate outcome in a best 162 Child quoted in Pike and Murphy, note 122, at 8. The authors note: “One 7-year-old was trying to make sense of a contact regime that might have looked equitable in (adult) legal terms, but severely limited her time with her mother and various stepsiblings.” 163 See for example L. (Children) [2016] ewca Civ 1110, para. 12. 164 Eleven year old girl with experience of family law proceedings, quoted in Douglas et al., note 35, at 106.

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interest case. In the child protection case of H. (Children)165 the judge upheld an appeal against an adoption order on the basis that at trial level the judge did not examine all relevant options before making the order, including the fact that the children would not be kept together.166 Conflicts of interest arose between siblings in London Borough of Haringey v Musa, where the local authority sought to end contact between younger children and five older siblings, over concerns that their parents, who had been imprisoned for severe child abuse, would trace the younger siblings.167 In cases such as these, the practicality of children’s wishes is not straightforward.168 The matter of a child’s own preferences can be exponentially complicated by the differing wishes of siblings (rather than interests, the primary issue in the cases above). In the New Zealand case of D. v S. for example, a mother wished to relocate to Ireland with her three children between the ages of six and 10 years. The lower court had prioritised the attachment of the mother and the six year old child, whereas the appeal court emphasised the need for the three children to stay together, and the strong views of the oldest (10 year old) that he wished to remain in New Zealand.169 There are no easy answers when such difficult issues arise. For a child to enjoy the outcome he wants in such a case, either the best interests of the other children must be determined by that, or different living arrangements are necessary for the siblings. Obviously in such cases the children’s autonomy principle simply means respect for children’s autonomy to the extent possible, and it may not be possible to apply the rebuttable presumption in favour of a child’s wishes. There are many permutations of factors to be considered in such a case. The child may be adamant, for example, that he would rather remain with his father 165 [2016] ewca Civ 1131. 166 Ibid, paras. 82–3. In particular, this affected the outcome for the youngest child who was far more likely to have been adopted than her older siblings. 167 The judge postponed the decision until the circumstances could be examined in more detail. London Borough of Haringey v Musa [2014] ewhc 962. See further John Eekelaar, “The Role of the Best Interests Principle in Decisions Affecting Children and Decisions about Children” 23 International Journal of Children’s Rights 2 (2015), at 9. 168 Another important point is that where the wishes of an under-18 parent and the best interests of her infant clash (that is, where the mother wishes the child to reside with her against the determinations of social services) it is the interests of the infant come first. One would hardly think this needs clarification, but it was clarified in Birmingham City Council v H. (A Minor) [1994] 2 AC 212. 169 D. v S. [2002] nzflr 116, at 71. The judgment was ultimately made against the wishes of the ten year old. See http://www.nzlii.org/cgi-bin/sinodisp/nz/cases/NZCA/2001/374 .html?query=title(%222002%20NZFLR%20116%22. (Last accessed 2 Feb. 2017).

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than move with his mother even if this means separation from his siblings. It may therefore be determined that upholding his wish as to where he wants to live is more important than keeping him with his siblings.170 Where Wishes are Dependent on the Resources of Authorities and Parents In some cases, the finances involved complicate the matter of observing children’s wishes.171 In particular, those involving child protection are affected, as the implementation of activities such as supervised contact, or travel to see siblings, must be implemented by the state. The inability of social workers to find foster placements often means, for example, that children may not be removed from home even where the threshold for significant harm is reached.172 Social workers interviewed in a uk study reported that in their experience resources were a significant obstacle to their ability to meet children’s wishes:173 “The fact is we’re trapped by resources: if I could have found him a foster placement, I would have.”174 It must be acknowledged that in some cases, the court or other authority will not simply be determining which outcome is in the best interest of the child, but instead the interests of the child bearing in mind available resources. Far from undermining a potential rebuttable presumption in favour of children’s wishes, this actually reminds us of why such a presumption is so badly needed – it can strengthen the best interest principle. One case outlines this point well. In 2016 an investigation was conducted into the actions of authorities in a uk local authority area. Years previously a mother who required assistance with her son, who had severe disabilities, was essentially threatened with a care order in respect of her son if she refused

5.2

170 Another scenario may be where a child wishes to have contact with a domestically violent parent, but practically this will mean that the other parent will be in danger at handovers – a well-known flashpoint for violence in cases involving domestic violence. See Ophelia Mills, “In Practice: Effects of Domestic Violence on Children” Family Law 165 (2008). It may not be possible to uphold children’s wishes, of course, where this would put others in danger. 171 The similar inter-weaving of preferences, autonomy and resources are considered in the case of adults with cognitive impairments in Beverley Clough, “Anorexia, Capacity, and Best Interests: Developments in the Court of Protection Since the Mental Capacity Act 2005” 24 Medical Law Review 434 (2016), section entitled ‘Discussion’. 172 See for example L. (Children) [2016] ewca Civ 1110. 173 Alison McLeod, “Respect or Empowerment? Alternative Understandings of ‘Listening’ in Childcare Social Work” 30 Adoption and Fostering 43 (2006), at 47. 174 Ibid, at 47.

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to consent to a foster placement two hours from the family’s residence.175 This distance posed a great obstacle to the maintenance of his close relationship with his family. In its apology in relation to the case, the local ­authority made reference to the fact that staff would be reminded of the importance of children’s wishes (it is not made explicit in reporting but presumably the boy’s wishes would have been to remain near his family).176 This case ­constitutes a prime example of why a rebuttable presumption in favour of children’s wishes is required – unacceptable factors, such as resources or inconvenient logistical issues, can all too easily take precedence over both best interest decisions and children’s wishes. Greater emphasis on children’s autonomy in such decisions will likely ensure that the focus is more squarely on the best interests of the child. Whilst systems will never have unlimited resources in order to put all of children’s wishes in practice, clarity should be demanded of authorities in a given case as to what is a legitimate obstacle and what is not. Another consideration is that contact arrangements for children may ultimately mean that the burden falls disproportionately on one parent. The research of Cashmore indicates that it may fall on mothers more often than not, particularly where there were long distances to drive and petrol to pay for: On occasions, Mum would find it really hard to get us to go over there … and we’d be really struggling, we’d have fights and she was really getting worn down …177 Clearly in some cases judges will have to at least give consideration to the ability of adults to deliver on children’s wishes.178 In these types of cases there is a complicating factor which interferes with the application of a rebuttable presumption in favour of a child’s wishes. It does not involve simply a yes or no answer – conflicts of interests arise with other children, or the practical

175 bbc News Online, “‘Enforced Separation’ Stops Mother Seeing Son for Years” bbc News Online, 3 Nov. 2016. Available at http://www.bbc.co.uk/news/amp/37839826 (last accessed 7 Nov. 2016). 176 Ibid. 177 Eighteen year old young lady quoted in Cashmore, note 27, at 519. See also fifteen year old girl quoted in the same study, at 519. 178 See also Holmes-Moorhouse v London Borough of Richmond Upon Thames [2009] ukhl 7 in which a homeless father had an order for shared residence with his children. In this case the judge opined: “Family court orders are meant to provide practical solutions to the practical problems faced by separating families … Ideally there may be many cases where it would be best for the children to have a home with each of their parents. But this is not always or even usually practicable. Family courts have no power to conjure up resources where none exist.”

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considerations, from the perspective of parents who must make children’s wishes a reality, render the child’s preferences unobtainable.179 In Hague Convention cases particular challenges to hearing children may arise from parents’ financial situations. In M. v B. the question of delay – and the financial burden which this would place on the boy’s estranged mother – ultimately settled the outcome contrary to the apparent wishes of the child (he was interviewed once, whilst distressed).180 Similarly in e.g. v j.g.181 which involved a dispute about school choice as well as other matters, the judge refrained from seeking an updated version of the 11 year old boy’s views (he had been heard a year earlier) because of the delay it would cause. The judge proceeded to override the wishes that the boy had expressed in that report.182 One has to have substantial sympathy for the position of judges in these cases – it is indeed preferable that these matters are settled as quickly as possible. However one gets the sense that the question of how and whether children will be heard is easily presented as a major inconvenience, both financially and time wise. In both of these cases, judges had appeared to already have made their minds up to rule against the wishes of the children. In both cases then the outcomes that the children were seeking – whilst not totally clear, as neither had a chance to be adequately heard – were also inconvenient from the perspective of the adults involved. Therefore it seemed even more acceptable to refrain from hearing the children to an adequate extent. Although reasons such as conflicting wishes and interests of siblings are sufficient to justify the suspension of the presumption in favour of children’s wishes being applied, factors related to resources and delays from children’s involvement should not be considered good reasons for this purpose.183 First, these are procedural rather than substantive issues – the problems lie with the court system’s procedures rather than any inability to put children’s wishes about outcomes into action. 5.3 Other Obstacles: Legal Confines and Vested Interests Whether what the child wishes is practical and legal must also be considered. In Re j.s. (Disposal of Body) in which the 14 year old girl wanted to be 179 See for example In Re M. (Children) [2016] ewca Civ 1059, para. 24, in which it was at issue whether or not the father would purchase property in Russia to facilitate contact with his daughters. The mother was proposing to relocate to Russia with the children. 180 M. v B. [2016] ewhc 1657, para. 41. 181 e.g. v j.g. [2013] EW Misc 21. 182 Ibid, para. 35. 183 The matter of resources is considered in more detail in Chapter 7.

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cryogenically preserved in a facility in the us on her imminent death, the court emphasised that the case must be determined “on the basis of a real situation as opposed to theoretical possibilities.”184 Information had been obtained from the child’s hospital and from us authorities, and it was therefore possible to consider a practical plan in line with the child’s wishes.185 Obviously, if children are seeking some action which is not lawful, it will not be possible to uphold their wishes. Yet courts should be reluctance to allow authorities with vested interests to decide what is ‘possible’. In Re Roddy,186 the local authority wished to prevent a 16 year old from selling her story in a scenario where their own actions were being criticised, for example.187 McLeod similarly identified instances of decision-making by social work authorities where it seemed, she writes, that it was the interests of authorities rather than the welfare of children in their care which resulted in children’s wishes being overruled. One child had sought permission to take part in a documentary about the care system. It had been refused by care managers, on the basis that the publicity might adversely affect him: “[T]he young man believed it was really because managers did not want adverse publicity. (Off the record his social worker thought he was probably right.)”188 Judges and other decision-makers must be fully prepared to resist attempts of institutions to put their own reputational interests ahead of children’s wishes. This is particularly important in the cases of children in institutional care, as they are in a precarious position, often lacking committed parents or guardians. Munro points to fear of scandal breeding defensive social work practice, something which, she says, discourages authorities from upholding children’s autonomy.189 In some cases it will be for courts to try to ascertain what is and is not acceptable risk for children when such matters come before them. Considering all of these complicating factors, it seems that there are some which may render it genuinely impossible to have an outcome in line with children’s wishes: The best interests of another child, practical impossibilities such 184 Re j.s. (Disposal of Body) [2016] ewhc 2859, para. 26. 185 Ibid. 186 Re Roddy (A Minor); Torbay Borough Council v Associated Newspapers Ltd. [2003] ewhc 2927. 187 The court commented that the ‘best interest’ argument of authorities had “no evidential foundation for the case at all.” Ibid, para. 81. The story was subject to headlines such as “Distraught girl of 13 must give up her baby.” Para. 3. 188 Alison McLeod, note 173, at 46. 189 Eileen Munro, “Empowering Looked After Children” 6 Child and Family Social Work 129 (2001).

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as a parent being unable to deliver the outcome, genuine resource problems, or legal impossibilities. 6

The Process of the Children’s Autonomy Principle and Its Application

The children’s autonomy principle is outlined in Chapter 1: In legal decisions in which the best interest of the child is the primary consideration, children should get to choose – if they wish – how they are involved (process autonomy) and the outcome (outcome autonomy) unless it is likely that significant harm will arise from their wishes. Having considered some important background points about what ‘significant harm’ might involve, and obstacles which may render moot a child’s preferences, where do these factors sit in the application of the principle? When it comes to both process and outcome, I suggest that the children’s autonomy principle in both instances should be applied as follows: Process of the Children’s Autonomy Principle 1.

Is the outcome being determined by what is in the child’s best interests? 2. Does the child have a wish as to the outcome? 3. Does the child want this wish to prevail? 4. Is the best interest question free of legitimate obstacles to children’s wishes?* 5. Is significant harm unlikely to result from following the wishes of the child? If the answer to all questions is ‘yes’, then the outcome should be in f­ avour of the wishes of the child. * The legitimate obstacles outlined above are those involving, for example, manipulation causing significant harm; conflicting best interests of another child; and resource/legal obstacles. In spite of these obstacles, and where there is an inability to implement the children’s autonomy principle strictly for whatever reason, one could still take as the overriding focus should be that autonomy should be upheld to the extent possible. In the face of all obstacles the main question should be – is the autonomy of this child being upheld to the extent possible? Even asking this question alone would likely lead to real change in the way that children are treated in best interest proceedings. It would encourage a movement away from the current approach in which children are frequently left unheard; and where they have been heard, it seems that any reason can by employed to override their wishes apparently in their ‘best interests’.

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It is useful to briefly consider how the children’s autonomy principle could have been applied in two actual cases – one child protection and one family law case. Both have been referred to in previous chapters. In the following cases, questions 1 to 4 have been answered in the affirmative, and therefore it is only question 5 – “Is significant harm unlikely to result from following the wishes of the child?” – which must be answered. In the case of P.–S. (Children)190 a 15 year old boy in care (M) wished to challenge the care order, and return to the care of his mother. He also wished to appeal the decision not to permit him to provide oral evidence to the court by video link to make clear the strength of his feelings in that regard.191 The trial judge ultimately held that it would be damaging for the boy to testify because the mother would engage in an emotional outburst in court; something which she had done previously.192 Considering the trial case, applying the children’s autonomy principle, on the matter of the care order it would not be possible to uphold M’s wishes. The threshold of significant harm had been reached whilst M was in the care of his mother, and therefore it was likely that significant harm would arise if M’s wish to remain with her were upheld. On the matter of testifying by video link, a different conclusion would have to be reached. It would be highly unlikely that M would suffer significant harm if his wish to testify in this way were upheld. It was relevant that M was 15 years old, so he was an older boy with the experience and emotional ­capabilities which that generally brings. The worst case scenario was that M’s mother would have an ‘emotional outburst’. Having lived with her so long, if she was indeed prone to these, M would already be accustomed to them and therefore it was unlikely that M would experience any unusual distress. Any potential distress from his mother’s demeanour would easily be outweighed by the importance of autonomy to M’s well-being. The children’s autonomy principle would likely mean that M should be facilitated to testify by video link. In us case In Re Marriage of Winternitz,193 a 14 year old daughter, Jamison, strongly wished to relocate to a residence (a few hours’ drive away) with her primary carer mother. There was a history of contact disputes between the parents for a number of years. The girl’s father wanted to prevent the ­relocation in 190 P.–S. (Children) [2013] ewca Civ 223. 191 Note that although the video link question did not necessarily fall under a ‘best interest decision’ as it was determined under the rules of evidence. Nevertheless the judge denied M’s wishes relying on his welfare (a term used interchangeably with ‘best interests’) as justification. 192 See P.–S. (Children) [2013] ewca Civ 223, para. 13. 193 In Re Marriage of Winternitz, 2015 djdar 3526 (27 February 2015).

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order to retain the current level of contact with Jamison. The court u ­ ltimately made an order that Jamison should stay living in the original city, and move in with her father. The reported case concerned an appeal but again I will consider the trial level judgment. It is predictable that a child will wish to remain with her primary carer, as this will be the individual with whom the child will inevitably have the greatest attachment. Therefore it is unsurprising that Jamison wished to move with her mother. It is unfortunate that the parents had been in an acrimonious dispute, and there had been some attempts at manipulation of the girl’s views by the mother which had been reported by the professionals through the years. This should not have a bearing, however, on the court’s approach to Jamison’s wishes. Jamison wanted to continue to see her father and it was very likely that the parent–child relationship would continue even in the face of relocation. They were an upper middle class family and had the resources to facilitate contact between father and child. She would have less contact with her father after the move which would be unfortunate. But this would be preferable to the distress she would experience at no longer living with her primary carer, and the animosity she would likely feel towards her father (noted in the ‘custody evaluator’s’ report) because of the autonomy denial. The perceived threat to the parent–child relationship does not reach the level of likely significant harm, and should not been seen as outweighing Jamison’s own wishes. In fact the threat to that relationship would likely be worse by coercing Jamison into an arrangement which she does not want. The children’s autonomy principle would likely mean that Jamison’s wishes would be upheld. I am suggesting here that in both cases chosen the outcome would have been different (although M would remain in care) if the children’s autonomy principle had been applied.194 This analysis is based only on impressions gathered from reported judgments, and it must be acknowledged that the judges themselves had the benefit of all the information in these cases and were in a better position to come to their conclusions. Another point to consider is that the children’s autonomy principle will involve some degree of discretion, similar to the application of the best interest principle, similar to ‘weighing’ views, and even similar to a determination of whether the significant harm threshold has been reached in a child protection case. Therefore analysis provided by others could lead to different conclusions. The dual benefits of ­applying 194 Equally there may be cases in which children’s wishes are upheld and the autonomy principle leads to the same conclusion in a different way. See for example Helen Stalford, Kathryn Hollingsworth and Stephen Gilmore, Children’s Rights Judgments: From Academic Vision to New Practice (Hart, forthcoming 2017), in which the authors apply children’s rights principles to various judgments. See further Chapter 7, Section 1.

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the children’s autonomy principle therefore, are the greater likelihood of a ­judgment in favour of the child’s wishes, and the requirement that the judges explicitly consider the child’s wishes as the most important factor.

Concluding Thoughts on a Focus on Significant Harm

As noted in Chapter 1, the right to be heard is not sufficiently benefitting children in proceedings. It is preferable to focus on respect for children’s a­ utonomy. The focus should be on whether a child requires paternalism, rather than on whether a child is ‘competent’ because the latter question distracts from the matter at hand, renders it natural and unquestioned to be suspicious of children’s wishes, and makes it easy to override those wishes. An autonomy focus is justifiable because in medical law – where autonomy questions are most commonly examined in a substantive way – the question of whether paternalism is warranted (rather than whether a patient has capacity) is becoming a more acceptable one, for both adults and children. This focus on whether paternalism is required is even more relevant to the types of best interest cases most commonly seen in family courts, as most such decisions don’t involve life and death choices. Rather they involve every day issues about children’s personal lives such as whom they will see and the upbringing they will receive. The risks of harm in these cases are relatively low, and therefore the lack of emphasis on children’s autonomy and the level of paternalism employed seems vastly disproportionate. I am arguing that there should be a rebuttable presumption in favour of children’s wishes. It is clear that such an approach would not be without risks, and that systems would have to be equipped to manage this well (this will be considered in the next chapter). There should be cases in which decision-­ makers are free to reject the presumption, and situations where children do not want this right should be one of them. There should also be leeway, of course, where children are being pressured or manipulated by another to a significant extent, or where children are clearly too young, incapable or upset (even after support). Though there would be risks associated with such a presumption, there are also obvious risks associated with the way children’s wishes are treated at present. It seems far more concerning that systems as they currently operate have minimal regard for children’s autonomy. There are very few cases in family law in which the court explicitly weighs the potential harm a child will suffer from being denied their wishes, against the potential harm of an outcome contrary to what the court believes is in the best interest of the child (but nonetheless

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it is what the child wants). The consideration is instead almost always about the nature of the options themselves, for example whether overnight visits with a non-resident parent would be harmful, not whether overnights would be harmful because the child does not want them.195 There would at least be a framework of accountability if courts were obliged to explicitly consider children’s autonomy in the way that often occurs in medical law, even if many outcomes would remain the same (as they likely would in child protection cases). Accepting that children should be allowed to face potential harm from their choices is difficult. There will likely be some individuals who regret as adults (or perhaps even earlier) refusing to see an estranged parent or refusing to get inoculated. Yet the courts have already accepted harm to children as an inevitable part of life in many of the decisions courts take for them.196 Arguably they are too accepting of harm to children, sometimes failing to heed extreme distress arising from decisions where they override children’s wishes.197 Why not accept that it is not the end of the world if a child’s own decisions appears in the end not to have been the ‘best’ one? If the threshold for interference with parenting is so high, then considering the prominence given to personal autonomy in liberal democracies, interference with children’s decisions should be taken as seriously. Unlike parents children are after all making decisions about themselves in this context rather than a third person. If society should tolerate “barely adequate” parenting198 on the basis that parent or family autonomy is so important, then why the incredibly high level of willingness to overrule the wishes of children themselves? It seems that some perspective is badly needed for the courts and others when it comes to perceptions of children’s own choices. It was outlined in Chapter 5 that, even if courts do take the time to consider children’s wishes, children must prove maturity or competence (even though nobody appears to know what these terms mean); whether they have suffered manipulation is almost always discussed; and their decision has to be a ‘rational’ one (which usually means the same decision the judge would have made) to attract respect. Considering the reasoning applied in the cases examined, then, it seems that the threshold for overriding children’s wishes must be set high in order to encourage a shift in thinking. As with the leeway which parents have in their choices and lifestyles, likely harm for children should be

195 196 197 198

G. (A Child: Intractable Contact) [2013] ewhc B16. See note 5 above. See Sections 2.1 and 2.2 above and, of course, most particularly Re S. note 56. Re L. (Care: Threshold Criteria) [2007] 1 flr 2050.

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­‘significant’ before their wishes can be overridden. Otherwise courts will continue to rely on vague and suppositional notions of possible future harm.199 There will be some circumstances in which particular care will be needed, of course. In some cases, for example where the child may be verbal but very young, it could be argued that a presumption in favour of a child’s wishes should not be applied. There is a danger that the same “age and maturity” approach identified in Chapter 5 could be taken, however, whereby these factors are used to unjustly exclude children from enjoying a presumption in favour of their wishes. Yet hopefully a focus on autonomy would change the framework sufficiently so that genuine respect for children as individuals is demanded from adults working with and for them. The focus should be on ensuring that autonomy is upheld to extent possible, and respect for autonomy requires acknowledging scenarios where individuals are vulnerable. Some children will wish to avoid the tensions involved in the litigation of adults and seek to be excluded from proceedings, and they have every right to do so. But this should not prevent those who want to be heard, those who want to have a determinative say even, to enjoy these options. Respecting children’s autonomy may not be easy or uncomplicated. ­Difficulties will arise; the question of how or whether to involve some young children in proceedings will be a challenge; parents will sometimes try to manipulate their children; and there will be situations in which children will require protection. But that is no reason not to prioritise children’s wishes – solutions can be found. Systems can be designed to deal with these types of problems. Scenarios such as manipulation are already playing-out in court cases, and the courts appear confident in dealing with them. The arguments in favour of prioritising respect for children’s autonomy greatly outweighs reservations about (likely resolvable) problems with doing just that. The case studies considered in Section 6 demonstrate the way in which the children’s autonomy principle should be applied. Good, well-resourced systems for hearing children are in particular necessary to ensure that a principle of children’s autonomy can be followed, as it is important to ensure that a child has had time and support to make decisions that are good for them. This is examined in the next chapter.

199 Such potential harm on which courts rely are for example the potential loss of contact with a parent (even where the child wants this) for example, or the chance of catching an illness on the basis that the likelihood is (slightly) higher where one has not been inoculated as in F. v F. [2013] ewhc 2683.

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Autonomy Support: Embedding the Children’s Autonomy Principle in Good Systems In-depth and frank discussions, considering the range of possibilities, compromising, suggesting alternative solutions, devoting time, openness, developing trust, a trusted person, consulting peers, awareness of one’s preference, and appropriate age.1

⸪ Introduction It has been demonstrated thus far that giving children a ‘right to be heard’ has not had the desired effect in best interest proceedings, that is, legal proceedings in which decisions are made with the best interest of the child as the primary consideration (for example contact disputes). It has not adequately facilitated children’s involvement in those proceedings, nor has it assisted them well to influence outcomes.2 There is a belief that the crc Article 12 right to be heard is a radical provision which mitigates the adult-child power disparity, but in the context of best interest proceedings at least, it is nothing of the sort. Children are excluded from such proceedings and their wishes are easily overridden on the basis that it is apparently in their ‘best interests’. This is why it has been argued in this book that instead the focus should be on a children’s autonomy principle, whereby children’s wishes may only be overridden where significant harm would likely result. In order to embed such a principle, however, children will require ‘autonomy support’ in best interest proceedings to a degree beyond what they have had available to them thus far.

1 Children’s suggestions on how to help them to be involved in decision-making, quoted in European Commission, Evaluation of Legislation, Policy and Practice on Child Participation in the European Union: A Final Report to the European Commission Directorate-General for Justice (European Commission, 2014), at 178. 2 See Chapters 4 and 5 respectively.

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Within the discipline of psychology, the term ‘autonomy support’ refers to nurturing children’s psychological needs, interests and values3 through, for example, facilitating them to understand their environment and to be involved in solving their own problems.4 As opposed to pressuring children to behave or think a certain way, autonomy support is about identifying and developing children’s own motivations and values through non-controlling support, understanding and information provision. The Committee on the Rights of the Child highlights the obligations of states to support children to be heard generally.5 In the ‘ideal’ Article 12(2) presented in Chapter 1,6 elaboration is provided for the specific context of best interest proceedings. It is emphasised that children must have information and support from professionals trained in children’s rights, autonomy and development.7 ‘Autonomy support’ in the context of best interest proceedings is taken in the ideal Article 12(2) to mean non-controlling, impartial information and support to form and/or8 express views and decisions about a best interest matter; reflecting the meaning of the term as it is employed in self-determination theory.9 Of course, the legal systems in which best interest decisions are made about children are usually designed neither for supporting children to make decisions, nor for prioritising their autonomy. Such systems have not, since the introduction of crc Article 12, undergone any serious modifications in order to accommodate children’s involvement.10 Legal systems are inadequately ­funded 3

See for example Wendy Grolnick, The Psychology of Parental Control: How Well-Meant Parenting Backfires (Lawrence Erlbaum, 2003). See further Bart Soenens et al., “Conceptuali[s] ing Parental Autonomy Support: Adolescent Perceptions of Promotion of Independence Versus Promotion of Volitional Functioning” 43 Developmental Psychology 633 (2007). 4 See for example Eva Pomerantz, Wendy Grolnick and Carrie Price, “The Role of Parents in how Children Approach Achievement: A Dynamic Process Perspective” in Andrew Elliot and Carol Dweck, eds, Handbook of Competence and Motivation (Guilford Press Publications, 2005), at 261. 5 The Committee emphasises for example obligations to “[e]nsure appropriate conditions for supporting and encouraging children to express their views” (para. 49). The Committee also emphasises a child-friendly environment to help children to be heard, and the training necessary for adults to facilitate this (at 29). Committee on the Rights of the Child, General Comment No. 12: The Right to be Heard (1 July 2009) CRC/C/GC/12. 6 Section 8.2. 7 Ideal Article 12(2)(c). 8 This acknowledges that children may have already formed their own views and made their own decisions. They may only need help and support in expressing them. 9 See Chapter 3, Section 3. 10 There are some systems which are better than others for children’s involvement. In Scotland’s Children’s Hearings it is expected that children will be present. In Israel, judges

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for involving children; they focus on the positions of the (usually adult) parties; and they tend to be inflexible, turning on rules and strictures which limit options and timelines.11 If children as autonomous actors are to be included more frequently in proceedings, then systems must be equipped to ­support and work with their specific needs. The purpose of this chapter, therefore, is to consider how we can better tailor legal systems and processes to facilitate children’s involvement, rather than expecting children to adapt to the difficulties of adult proceedings. It must be accepted that best interest decisions are likely to involve upset and discomfort for children when they come to court (and indeed when they do not). There will likely be family disputes, upset parents, and other issues involved which are difficult for children to deal with (they will also be difficult for the adults involved). Yet a distinction must be drawn between distress which is unavoidable, and that which is due to poor practice. There is evidence, unfortunately, that where children are involved in proceedings, they are often upset by the failures of adult professionals, such as where children perceive a lack of respect and where jargon is used.12 Many of the problems are of course more systemic, such as the adversarial nature of common law systems and the failure to properly resource facilities for involving children. If we are to prioritise autonomy, then we must also consider the very real need to protect children from the risk of harmful experiences arising from these obstacles. At the same time it is important not to exaggerate the risks involved. As highlighted in Chapter 6, the courts accept harm as a predictable part of life for children,13

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must consider whether to hear children in every family law case and the system is now well designed to accommodate it. Yet, of course, these systems are about ‘hearing’ children, rather than prioritising autonomy. See Chapter 4, Section 1.3. For example in the context of England and Wales, Stalford, Hollingsworth and Gilmore list some examples: “[C]hild protection proceedings in England and Wales have to be completed within 26 weeks; and child abduction cases under both Hague and eu Brussels ii have to be resolved within 6 weeks. Legal limits and the limits of legal aid constrain how much expert evidence can be submitted (at least in family cases as a result of the family justice review)”. Helen Stalford, Kathryn Hollingsworth and Stephen Gilmore, Children’s Rights J­ udgments: From Academic Vision to New Practice (Hart, forthcoming 2017), Chapter 2. See for example European Union Fundamental Rights Agency, Child-Friendly Justice: Perspectives and Experiences of Children Involved in Judicial Proceedings as Victims, Witnesses or Parties in Nine eu Member States (European Union Fundamental Rights Agency, 2017) and Chapter 4, Section 2.3. See for example Re E. (Children) [2011] uksc 27, at 34 and Irish case I.P. v. T.P. [2012] 1 ir 666. See Chapter 6, Section 2.2.

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and furthermore children are already frequently harmed from being excluded from proceedings and from having their wishes overridden.14 So the challenge is to determine how to achieve the correct balance between protection and involvement. Greater respect for children’s autonomy in best interest proceedings must go hand in hand with better systems for supporting children. In this chapter, it is argued that there are changes required which relate to legislation, training and resources. If ultimately no such systemic change occurs, there will nevertheless be opportunities for individual professionals to apply the children’s autonomy principle and to provide autonomy support. The importance and potential of autonomy support are considered. The major systemic challenges relating to resources and the suitability of legal systems for involving children are then outlined. The point of this chapter therefore is to emphasise that the abilities of adults to support children will be more important to how and whether children are involved (and whether a presumption in favour of their wishes is possible) than the “age and maturity” of children themselves – though these factors are relied upon so heavily in crc Article 12 and elsewhere. 1

A Different Approach for Legal Systems: Children as Equals I knew that her job was to help me out, so if I told her it would help me out. She really listened to me…15

1.1 Embedding Equality in Law and Practice Greater acceptance is required in law and practice of the fact that children deserve a higher level of equality with adults when it comes to autonomy on personal matters.16 In Chapter 3, it was highlighted that autonomy is the priority for the individual in liberal democracies, it is crucial to wellbeing and children are capable of good decision-making, particularly where they have support. The main argument in this book, of course, is that one important area in which greater equality is needed is where best interest decisions are made by courts. 14 15

16

See Chapter 6, Section 2.1. Child quoted in Lisbeth Pike and Paul Murphy, “Invisible Parties: Listening to Children: A Social Science Perspective” Paper presented at Australian Family Law Conference (Perth, 24 Oct. 2006), at 10. The ideal crc Article 12(2)(a) states that: “Children are equal before the law, and states must ensure children’s access to justice.” See Chapter 1, Section 8.2.

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It should be acknowledged (as it is for adults with cognitive impairment17) that these are substitute decisions on children’s behalf, and therefore children’s autonomy should be to the forefront of such processes. Extensive legal change will likely be required to achieve this; change of the kind that has occurred for the autonomy of adults with cognitive impairment which has been inspired by the un Convention on the Rights of Persons with Disabilities.18 At a broad level, constitutions should enshrine the right of children to autonomy and to equality before the law.19 More specifically it is necessary to amend legislation relating to best interest decision-making, in order to provide for children’s autonomy in this context. For example in England and Wales the Children Act 198920 essentially necessitates that as part of determining a child’s best interests, the wishes of the child will be amongst the factors which must be considered by the courts.21 Wishes are just to be treated the same as any other factor, then. In contrast, in order to achieve greater equality for children, their autonomy should be explicitly prioritised in such legislation. Points from the ideal Article 12(2) presented in Chapter 122 should be incorporated, including the principle that in such matters, “[c]hildren’s autonomy must be vindicated in both the process

17 18 19

See Chapter 1, Section 7. Ibid. Children are usually excluded from equality legislation. The uk’s Equality Act 2010 largely excludes children from protection against discrimination on the basis of age, for example. For analysis of this point see Simon Flacks, “Is Childhood a ‘Disability’? Exploring the Exclusion of Children from Age Discrimination Provisions in the Equality Act” 6 Child and Family Law Quarterly 421 (2014) and Children’s Rights Alliance for England, Making the Case: Why Children Should be Protected from Age Discrimination and how it can be Done: Proposals for the Equality Bill (Children’s Rights Alliance for England, 2009). 20 The Children Act 1989, Section 1 states that: “When a court determines any question with respect to: (a) the upbringing of a child; or (b) the administration of a child’s property or the application of any income arising from it, the child’s welfare shall be the court’s paramount consideration.” See also Section 60CA of the Family Law Act 1975 in Australia; Section 27 of the Child Care Act, 1991 in Ireland; Section 4 of the Care of Children Act 2004 in New Zealand and Section 11(7) of the Children (Scotland) Act 1995. 21 Section 1(3) states that “a court shall have regard in particular to: (a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding)” and also lists: Needs, likely effects of change on the child, the child’s characteristics, risk of harm, capability of parents and the powers of the courts as relevant factors which must be considered. 22 Section 8.2.

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and the outcome of such proceedings to the greatest extent possible.”23 The right of children to have a rebuttable presumption in favour of their wishes in outcomes (outcome autonomy) should also be included.24 Children’s right to choose how to be involved in proceedings (process autonomy) should likewise be included, though this may depend on how the particular legal system works and what options are available to children within that system. Of course, the right of children to ‘autonomy support’ – non-controlling, impartial information and support to form and/or express views and decisions about a best interest matter – should be included. It is argued in this chapter that no matter what the legal system, this kind of support will be crucial. Even if laws are changed to accommodate a children’s autonomy principle, however, many social obstacles would remain, such as problematic attitudes to children.25 It will likely take a major change in social assumptions for the children’s autonomy principle to be accepted; in particular assumptions about the extent to which children are different to adults and about whether or not involvement is (or should be) their ‘right’.26 Whether or not system change does actually occur, practitioners can nevertheless take it upon themselves to engage the philosophy of the children’s autonomy principle in practice. Social workers, guardians, psychologists and other relevant professionals can (and many already do) implement ‘autonomy support’ techniques27 – impartially supporting children to make decisions, for example, and prioritising children’s wishes. Even if laws are not drafted which prioritise children’s autonomy, practitioners and decision-makers have much discretion to do so. Although it may be difficult for interested practitioners and others to fit the children’s autonomy principle explicitly into systems which are not designed for it, the principle has as much potential to be a philosophical or

23 24

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Ideal Article 12(2)(a). The ideal Article 12(2)(b) states that “[c]hildren should get to choose – if they wish – how they are involved (process autonomy) and the outcome (outcome autonomy) unless it is likely that significant harm will arise from their wishes.” See for example Matias Cordero Arce, “Maturing Children’s Rights Theory: From Children, With Children, Of Children” 23 International Journal of Children’s Rights 283 (2015), at 313. As outlined in Chapter 3, the adult/child divide is not as deep as adults appear to assume. In Chapter 1, Section  7, it is outlined that adults with cognitive impairment have now secured due process rights at international level, many of which have been adopted at domestic level, and that this should be a guide for our approach to children’s rights. See below Section 4.

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guiding approach as it has to be a legal doctrine. There is a significant role to be played through progressive judging. A recent initiative has involved the rewriting of prominent judgments involving children using children’s rights principles, encouraging “a position whereby those charged with interpreting and ­implementing the law internali[s]e and commit themselves to the values espoused by children’s rights.”28 Children have a very limited ability to assert their rights through democratic processes, considering they do not have the right to vote.29 Therefore courts have the responsibility to play a prominent role in progressing children’s rights where adults disagree on the manner in which to resolve questions relating to children.30 As part of this, courts will have opportunities for progressing appreciation for and understanding of children’s autonomy. In many instances judges who are of the inclination will be able to achieve a prioritisation of children’s wishes when deciding children’s cases. Judges can transform perceptions of children in legal regimes by interpreting the law in a creative way;31 going “beyond merely interpreting and applying legislation; resolv[ing] gaps and ambiguities that might exist in a system of legal norms…”32 Judges often have a level of freedom which means that they can innovate when interpreting statute and other sources of law. They can proactively take a children’s rights approach, and therefore a children’s autonomy approach, to these sources. Though there are sometimes obstacles, be they constitutional, institutional or procedural, these obstacles are often overstated.33 Although crc Article 12 suggests a timid, vague and limited status for children in proceedings, judges usually have the freedom to interpret such provisions in very broad terms – to interpret a right to be heard as a right to autonomy to the extent possible for example. Because of the subjective nature of the best interest principle, judges have much discretion as to whether to hear children, and even more when ‘weighing’ children’s wishes – judges can legitimately p ­ rioritise 28 29 30 31 32

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Stalford, Hollingsworth and Gilmore, note 11, Chapter 2. Aoife Nolan, “The Child as ‘Democratic Citizen’: Challenging the ‘Participation Gap’” P­ ublic Law 767 (2010). Stalford, Hollingsworth and Gilmore, note 11, Chapter 2. Stalford, Hollingsworth and Gilmore, note 11. Aoife Nolan, Children and Socio-Economic Rights (Hart, 2011), at 138 citing Duncan ­Kennedy, A Critique of Adjudication (Fin de Siècle) (Harvard University Press, 1997), at 28. See Stalford, Hollingsworth and Gilmore, note 11. John Tobin, “Judging the Judges: Are they Adopting the Rights Approach in Matters ­Involving Children” 33 Melbourne University Law Review 579 (2009), at 582.

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those wishes when deciding whether to involve children in proceedings, and when determining best interest outcomes. Even so, there is often a sense that judges (and other professionals34) feel compelled to give the impression of being in control of children.35 Judges sometimes explicitly vocalise their fear that where children’s wishes are prioritised, children will fail to appreciate the authority of the courts and other adults.36 As noted earlier, us judges have occasionally imprisoned children for resisting contact,37 in one case a 13 year old boy was referred to as “a defiant, contemptuous young man.”38 These instances are at the extreme end of the manifestations of deeply embedded assumptions held by judges, and most other adults for that matter, about what is expected of children – absolute obedience. There are on the other hand some enlightened examples to point to where judges refrain from coercing children and/or demonstrate deep respect for their autonomy.39 A greater volume of the latter type of judgment could tip the balance in favour of more systemic respect for children as individuals, and possibly spur the broader legal and systemic change required to truly embed a children’s autonomy principle in best interest proceedings.

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Alderson notes the unwillingness in the medical arena of professionals to share control over their decisions. Priscilla Alderson, “Researching Children’s Rights to Integrity” in ­Berry Mayall, ed, Children’s Childhoods: Observed And Experienced (The Falmer Press, 1994), at 53. 35 Fern also notes this trend in her research with social workers. Elizabeth Fern, “Child-­ Directed Social Work Practice: Findings from an Action Research Study Conducted in Iceland” 44 British Journal of Social Work 1110 (2014), at 1124–5. 36 See H. (Children) [2014] ewca Civ 733. The trial judge feared that the children would perceive that “authority can be disregarded and … compliance with adult expectations is optional” (para. 74); and in Re S. (Contact: Intractable Dispute) [2010] 2 flr 1517 the judge emphasised that children “…have to have their lives regulated by adult judgment” (para. 7). See also in Canada K.D.S. v G.M.P., 2017 ONSC 212. 37 See Chapter 5, Section 4.2. 38 As noted in Chapter 5, Section 4.2, Judge Gorcyca imprisoned three children for refusing to have contact with their father. See court transcript: Eibschitz-Tsimhoni v Tsimhoni State of Michigan 6th Judicial Circuit Court for the County of Oakland File No. 2009-766749DM. Available at: https://www.scribd.com/document/271061113/Tsimhoni-court-hearing -transcript-REDACTED (last accessed 8 Mar. 2017). 39 See for example G. (A Child – Intractable Contact) [2013] ewhc B16; Re J.S. (Disposal of Body) [2016] ewch 2849 New Zealand case A. v S. hc mas Civ-2004-435-245 and Canadian case P.J.A. v S.C.C., 2015 ABQB 800.

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Involving Children: The ‘Autonomy Support’ Professional? The needs, wishes and feelings pack (that Cafcass now uses) is, I believe, an effective tool … I hope that children will be able to be more confident in what they are saying…40

All professionals working with children in legal systems should have knowledge of ‘autonomy support’41 – the approach advocated in psychology as beneficial for learning and decision-making in many different areas of life.42 But it is important that, where children’s autonomy is prioritised in best interest proceedings, children have a designated support person to assist them. What kind of professional could engage in such activities in the arena of best interest proceedings? There are already some models in which elements of autonomy support are evident, in that support and guidance may be given to children. The children’s guardian in England and Wales43 often provides support, for example, as does the specialised children’s lawyer in New Zealand.44 In particular there is a large degree of autonomy support in the standards espoused in the American Bar Association (aba) Model Act Governing the Representation of Children in Abuse, Neglect, and Dependency Proceedings45 which aims to guide the us children’s ‘guardian ad litem lawyer’ in child protection cases.46 Not only does the Model Act presume that children will instruct their lawyer,47 40

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Fifteen year old girl speaking about child inclusion in family court proceedings, quoted in Jennifer McIntosh, “Four Young People Speak about Children’s Involvement in Family Court Matters” 15 Journal of Family Studies 98 (2009), at 99. She is referring to one of the tools Cafcass uses to help children share their feelings with the court. See cafcass website at https://www.cafcass.gov.uk/leaflets-resources/our-work-with-children.aspx (last accessed 20 June 2017). See consideration of content of autonomy support below at Section 4. See Chapter 3, Section 3. The role of this professional can be quite paternalistic, however – see Chapter 4, Section 3. See Chapter 4, Section 3. Model Act Governing the Representation of Children in Abuse, Neglect, and Dependency Proceedings 2011. See Andrea Khoury, “Policy Update: aba Adopts Model Act on Child Representation in Abuse and Neglect Cases” 30 aba Child Law Practice 106 (2011), at 106. Required under the Child Abuse Prevention and Treatment Act (capta) 1974. The American Bar Association (aba) Model Act Governing the Representation of Children in Abuse, Neglect, and Dependency Proceedings is adopted in Massachusetts and elsewhere. See Chapter 4, Section 3.1.3. It is recommended that lawyers should take instruction from children from the age of 10 years, though there are arguments that more can be done for the representation of younger children. See Barbara Atwood, “Representing Children Who Can’t or Won’t Direct

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the representative will also advise the child, providing options and information to assist them in decision-making. A new ‘autonomy support’ type professional is probably not necessary in many systems then, although learning about and adopting autonomy support in a more explicit way would be required for existing models. A cafcass guidance document for professionals states, for example, that children “need good support, and the right type of support, to make good decisions.”48 It seems that psychologists, social workers and lawyers49 can all potentially fulfil this role once their training includes autonomy support (as well as topics such as children’s rights and child development). In all of the jurisdictions noted in the previous paragraph, however, the professionals mentioned are only available to children in some cases50 and of course this is not acceptable. All children must have the opportunity to be involved and supported in their own best interest proceedings. There are many different elements to children’s potential involvement in proceedings, as outlined in the ideal Article 12.51 There is the information that children will require. There is the potential for meeting the judge, and for attending proceedings. Therefore if there is to be only one single professional serving as the ‘autonomy support’ person, they will have to be available for a variety of purposes. It must also be considered that children may well need a legal representative in addition to their autonomy support person, particularly in common law systems, to ensure an equitable position compared to adult parties. The New Zealand children’s lawyer model seems to be a particularly good compromise if only one professional were to be appointed. In this model both legal representation (that is, taking instructions) and broad support is provided, with the representative even performing tasks such as bringing children to meetings and hearings.52 Furthermore there is a ‘protection’ safety net – the New Zealand children’s lawyer may indicate to the court if there is a perceived best interest conflict with a child’s instructions, and possibly appoint a best interest advocate. Whilst this is inescapably paternalistic, if the lawyer

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Counsel: Best Interests Lawyering or No Lawyer at All?” 53 Arizona Law Review 381 (2011), at 381. cafcass, My Needs, Wishes and Feelings: Guidance for Practitioners (cafcass, 2011), at 13. It could even perhaps be a role filled by volunteer lay persons, though the perils of voluntarism of children’s guardians are considered in Chapter 4, Section 3.1.2. In many jurisdictions they are only available in the most difficult of private law cases for example. See Chapter 4, Section 1.3. See also Chapter 4 for consideration of the various avenues of involvement. Michelle Fernando, “Family Law Proceedings and the Child’s Right to be Heard in ­Australia, the United Kingdom, New Zealand, and Canada” 51 Family Court Review 46 (2014).

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adopted something akin to the approach espoused in the aba Model Act,53 a good balance of involvement and protection could be achieved. Under the aba Model Act the lawyer should only refuse instructions if they believe children both lack capacity and the instruction will likely “subject the child to a risk of substantial harm.”54 As considered further below, additional resources are obviously needed in order to ensure all children have the support that they require, including children who may wish to bring cases themselves.55 Of course, extensive autonomy support work will not be required for many children, as some will not want to be involved, some will simply want to give their views and no more, and others will have already made their minds up about what they want (and may not want any assistance). Some professionals involved in best interest proceedings may be reluctant to embrace autonomy support. In education, where autonomy support has been extensively studied, teachers often fear that support for students’ autonomy may lead to irresponsible behaviour.56 Autonomy support does not, however, mean removing structure, but instead providing it in an autonomy-supportive rather than a controlling way.57 Therefore fears that professionals may have about giving children too much control are misplaced. Teachers also fear that not all students may be suited to autonomy support methods, but this has also proven misguided, as it works for a diverse range of students, including those with special needs,58 and “at-risk” students.59 Therefore, there is scope for providing autonomy support to all categories of children about whom best interest decisions are made. The benefits of autonomy support are clear. Greater autonomy has been found to be correlated positively with a variety of outcomes for children60 53 54 55 56

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Model Act Governing the Representation of Children in Abuse, Neglect, and Dependency Proceedings 2011. See Khoury, note 45, at 106. See Chapter 4, Section 3.1.3. See Chapter 4, Section 3.1.1. Johnmarshall Reeve and Jang Hyungshim, “What Teachers Say and Do to Support Students’ Autonomy during a Learning Activity” 98 Journal of Educational Psychology 209 (2006). Ibid. Bob Algozzine et al., “Effects of Interventions to Promote Self-Determination for Individuals with Disabilities” 71 Review of Educational Research 219 (2001). L. Forstadt, Swimming with the Sharks: Basis of Job Satisfaction for Teachers who Educate at-Risk, High-School Students (Unpublished dissertation, University of Iowa, 2007). See Yuki Hasebe, Larry Nucci, and Maria Nucci, “Parental Control of the Personal Domain and Adolescent Symptoms of Psychopathology: A Cross-National Study in the United States and Japan” 75 Child Development 815 (2004) and Christopher Niemiec, Bart ­Soenens,

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particularly where children make decisions together with parents.61 Arrangements are likely to last longer, and involve happier children, where children’s wishes have been prioritised in the process of making them.62 An approach which prioritises autonomy is a positive solution to many of the challenges faced in the matter of how to involve children in best interest proceedings. It would serve to uphold children’s autonomy and to support their decisionmaking in the same way that has been insisted upon for adults with cognitive impairment; whilst simultaneously ensuring that children still have the support and, to some extent, the protection they are more likely to need because of their youth. The real challenge is to convince policy-makers, professionals and others that such support is required, that it is not overly-intrusive for families and that it is worth adequately resourcing systems in order to provide it. 2

Balancing Autonomy and the Integrity of the Family Basically I’d say just listen to the child … the way it impacts on the child is different for every single child. And you can’t follow a formula. You can’t say you have to go to daddy for access…63

To suggest that children should receive autonomy support in the context of best interest proceedings is likely to cause worry to many about undue interference in family life, as such support may involve professionals, external to the family, speaking with children about intimate family matters. There will be concern that where children are given the opportunity to be involved in proceedings affecting them, their involvement will undermine parents.64 Indeed

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and Maarten Vansteenkiste, “Is Relatedness Enough? On the Importance of Need Support in Different Types of Social Experiences” in Netta Weinstein, ed, Human Motivation and Interpersonal Relationships (Springer, 2014), at 79. Samantha Bindman, Eva Pomerantz and Glenn Roisman, “Do Children’s Executive Functions Account for Associations Between Early Autonomy-Supportive Parenting and Achievement Through High School?” 107 Journal of Educational Psychology 756 (2015), at 775. See further Chapter 5, Section 1.1 – older children often ‘vote with their feet’ and change arrangements with which they do not agree. See also Chapter 3, Section 3. Child quoted in Yvonne Darlington, “Experiences of Custody Evaluation: Perspectives of Young Adults Who Were the Subject of Family Court Proceedings as Children” 3 Journal of Child Custody 51 (2006), at 59. Jean Koh Peters, “Seeking Dignity, Voice and Story for Children in our Child Protection Systems” Paper presented at Voices, Choices and Law – Weighing Children’s Views in Justice

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this is something that must be taken very seriously – most countries operate, for good reason, on the assumption that families should not be interfered with unless strictly necessary.65 2.1 Children are Entitled to Involvement, and Involvement is Positive That said, it is not justifiable to make legal decisions about an individual’s best interests without at least inviting their input (the seriousness with which this is taken for adults confirms that66), and many children will need assistance to give that input. Therefore it is ‘necessary’ to offer children information and support in such circumstances. This has at the very least been accepted by states almost all of whom who have ratified crc Article 12.67 Article 12 enshrines a ‘right to be heard’ and there has to be some means through which to hear children. It must also be remembered that children have a right to information from many sources, in international and often national law.68 In family law parents have brought private child care matters to court to be decided by a judge and it is not possible to exclude children as individuals from this – they are already involved.69 In some cases courts have resisted the coyness around parental permission for children’s direct involvement, ensuring legal representation, for example.70 It is important to move from seeing adults as ‘in charge’ and their children as appendages in best interest proceedings. ­Similar ‘family autonomy’ arguments were once employed to repress women

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Proceedings (University of Liverpool, 5 Nov. 2015). Prominent opponents are Martin Guggenheim, What’s Wrong with Children’s Rights (Harvard University Press, 2009); Joseph Goldstein et al., The Best Interests of the Child: The Least Detrimental Alternative (Simon and Schuster, The Free Press, 1998). See Chapter 6. See Chapter 1, Section 7. Support is already provided to children in proceedings in some circumstances. See the various models of child involvement in proceedings considered in Chapter 4. See for example Chester v Afshar [2004] ukhl 41 in the medical context in England and Wales, although the case is not child-specific. See also note 5. This is a preoccupation that does not appear to be reflected in daily family life, in which it seems that decisions operate more democratically, in the uk at least. Ian Butler, Lesley Scanlon and Margaret Robinson, Children and Decision Making (Jessica Kingsley Publishers, 2005). See Chapter 5, Section 4.2. See for example in South Africa, in Legal Aid Board v R and Another (2009 (2) sa 262 (D)) concerning the appointment of a legal representative for the child against the wishes of one parent (paras. 3 and 4) and G. (A Child – Intractable Contact) in which the court considered the failure of the mother to permit the child’s guardian to speak to the 13 year old girl to be misguided. [2013] ewhc B16, para. 38.

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and exclude them from legal personhood.71 The web of family relationships must be acknowledged, but so too must the fact that proceedings are determined in accordance with the best interest of the child rather than anyone else.72 In any case, there is evidence that parents often do appreciate support for their children’s involvement, even (surprisingly) where it does not benefit their own (parents’) interests.73 Moreover, the Israel experience – in which practically all stakeholders have ultimately perceived children’s involvement as a good thing – demonstrates that where children’s involvement is commonplace, it influences parents to give greater consideration to the position and interests of children, and to listen to their views.74 This makes sense – in such a system children are no longer incidental to parents’ disputes, but agents with individual status and rights who must be taken seriously. An added benefit is that when problems are consequently approached in a more relational way, with the position of the child more explicitly considered by parents, there will likely be less acrimony. Whether supporting children’s involvement really does have negative effects on families is, of course, suppositional. ‘Autonomy’ is the notion which has been used in this book to focus adults’ attention on the position of children in proceedings affecting them. But it has been highlighted that although we may have assumptions that autonomy is a selfish quality, in fact it is as much about respecting others as it is about being respected. Children need not be pitted against parents in some unduly individualistic approach. Proponents of relational autonomy make the point that children’s decisions will inevitably involve consideration of others and prioritisation of the ones close to them.75 There will be some fraught cases with estranged parents where children wish 71 See Re G. [2012] ewca Civ 1233, para. 20. 72 Winter argues that children as individuals are overlooked by social workers, who are allocated to ‘families’ when, Winter argues, they should instead be allocated to the individual child. Karen Winter, “The Perspectives of Young Children in Care about their Circumstances and Implications for Social Work Practice” 15 Child and Family Social Work 186 (2010). 73 Gillian Douglas et al., Research into the Operation of Rule 9.5 of the Family Proceedings Rules, 1991 (Department for Constitutional Affairs, 2006), at 136. 74 Tamar Morag, Dori Rivkin and Yoa Sorek, “Child Participation in the Family Courts: Lessons from the Israeli Governmental Pilot Project” 26 International Journal of Law, Policy and the Family 1 (2012), at 18. 75 Tom Cockburn, “Children and the Feminist Ethic of Care” 12 Childhood 71 (2005); Stephen Gilmore and Jonathan Herring, “‘No’ is the Hardest Word: Consent and Children’s ­Autonomy” 23 Child and Family Law Quarterly 3 (2011), at 23. See Chapter 3, Section 2.3.

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strongly to assert their will but in these cases, children’s involvement is far from the main issue or problem.76 Other than these most difficult cases, rather than insisting on a particular outcome, the research indicates that most children will just want to be involved and respected in decision-making.77 In any case, as part of non-controlling, impartial information and support, children will at least be reminded of the position of all parties, so autonomy support will likely help rather than hinder children’s respect for parents and other adults. 2.2

The Role of Parents in Supporting Autonomy [M]y mum just said, “me and your father have decided that he is going to not live with us no more, and you will be staying with me” and then I said to her, “well how come?” And she just said, “we just decided.”78

Autonomy support will also mean that parents themselves will be more likely to have to speak to their children about those proceedings. In the ideal Article 12(2) presented in Chapter 1,79 it is emphasised that “parents (or guardians) should be encouraged and supported to listen to their children.”80 There are some states which have even enshrined in law a duty on parents to consider children’s views in matters affecting them, for example in Finland, South Africa and Scotland,81 therefore it is not an entirely alien concept that parents should be expected, even obliged, to listen to their children when decisions affecting them are being taken. In one study, the most common piece of advice children said that they would give to separating parents would be to listen to them and to provide

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Research indicates that common family dynamics – negotiation and sacrifice – may no longer apply in such cases. See Bren Neale and Carol Smart, Good to Talk?: Conversations With Children after Divorce (Nuffield Foundation, 2001), at 16–7. See further Chapter 1, Section 4.2. 77 See Chapter 1, Section 4. 78 Young adult describing experience as a child of parental separation, quoted in Jane Fortin, Joan Hunt and Lesley Scanlan, Taking a Longer View of Contact: The Perspectives of Young Adults who Experienced Parental Separation in their Youth (Sussex Law School, 2012), at 224. 79 Section 8.2. 80 Ideal crc Article 12(2)(c). 81 Elaine Sutherland, “Listening to the Child’s Voice in the Family Setting: From Aspiration to Reality” 26 Child and Family Law Quarterly 152 (2014).

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them with more choices.82 It seems obvious that it is important for parents to speak with their children about arrangements on family breakdown (children inevitably will have some knowledge of the dispute around them and will likely be distressed where they are insufficiently informed83) yet it seems that many do not. Even in Scotland, where there is legislation placing an obligation on parents to hear their children on matters affecting them, parents have revealed that they rarely speak with their children about disputes concerning residence or contact, some because they were “worried that they could be accused of pressuring the children if they discussed the court action with them.”84 It is true – they could be so accused. Courts constantly consider whether children’s views are ‘their own’ or whether they have been ‘manipulated’.85 So systems should be more supportive of parents discussing matters with their children. Guardians, lawyers and other professionals are likely to play an important role in how parents perceive and understand the wishes of children.86 It is important that systems have clarity in this regard. Parents should be left in no doubt that they should talk to their children, but not pressure them. They should never, of course, criticise or punish children for what they say or want in the context of proceedings affecting them.87 Children’s involvement should be to the degree that children wish for it to be, rather than at the discretion of professionals or parents. Although this will make many adults uncomfortable, it is important to remember that these proceedings are supposed to be resolved in accordance with what is best for the child. It does not seem unreasonable to suggest that children should be involved on their own terms. 82

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Anne Smith, Nicola Taylor and Pauline Tapp, “Rethinking Assumptions about Children’s Competence to Participate in Family Decision-Making after Parental Separation” 10 Childhood 201 (2003), at 207. See for example Kay Tisdall and Fiona Morrison, “Children’s Participation in Court Proceedings when Parents Divorce or Separate: Legal Constructions and Lived Experiences” 14 Law and Childhood Studies: Current Legal Issues 156 (2012). Scottish Government, Understanding Child Contact Cases in Scottish Sheriff Courts (Scottish Government, 2010), Section 7. See Chapter 5, Section 1.3.3.3. Judy Cashmore and Peter Parkinson, “Children’s Participation in Family Law Disputes: The Views of Children, Parents, Lawyers, Counsellors” 82 Family Matters 15 (2009), at 16. Carole Brown, “Involving Children in Decision Making Without Making them the Decision Makers” Paper presented to Directors of Court Counseling and Casework Supervisors (Feb. 1996). See for example the case of Clare, in which she reported being confronted by her father with his (apparently inaccurate) perception of the views she had given the court representative. Tisdall and Morrison, note 83.

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Not Just Providing an Opportunity: Encouraging and Assisting

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They tend not to listen to you because they think they know better all the time.88 As highlighted in Chapter 4, children have great difficulty speaking and asserting themselves in the uber-adult forum of legal proceedings. They sometimes feel pressure from children’s guardians to follow a particular course of action.89 They may similarly feel pressure from their parents (although this is not prominent in the literature). Whilst children have very positive things to say about one on one meetings with judges, in open proceedings they report much sternness and even rudeness.90 It seems that the attitudes, behaviours and decisions of adults in the legal system are by far the biggest obstacles to children’s involvement. The power dynamics of proceedings can make them an unpleasant experience for children as outlined in Chapter 4. Even in Scotland’s Children’s Hearings, specially constructed to include children, they often feel patronised and insignificant.91 Children require much support to overcome these obstacles. Most of the room for improvement, however, appears to lie not with support for children but with professionals themselves, who clearly have to have skills and knowledge suited to working with children, but often do not, particularly in jurisdictions which do not have specialised family courts. Feedback on performance is very common in teaching and service provision and other areas, and therefore feedback from children on their experience in legal systems should also be sought.92 Complaints mechanisms must be established

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Sixteen year old boy quoted in Alison McLeod, “Respect or Empowerment? Alternative Understandings of ‘Listening’ in Childcare Social Work” 30 Adoption and Fostering 43 (2006), at 45. See for example Douglas et al., note 73, at 108 and European Union Fundamental Rights Agency, note 12, at 40. See European Union Fundamental Rights Agency, note 12, at 28. See for example Anne Griffiths and Randy Kandel, “Hearing Children in Children’s ­Hearings” 3 Child and Family Law Quarterly 283 (2000), at 287 and Children’s Hearings Scotland, Children and Young People’s Views and Experiences of Children’s Hearings: A Summary (Children’s Hearings Scotland, 2014), at 7. See further Chapter 4, Section 2.3.3. Note the pilot project in England and Wales in which feedback sheets have been provided to children after meeting with judges. cafcass, Supporting Child Inclusivity in the Family

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or ­strengthened to fully ensure that professionals who do not work well with children, or those who refuse to show them respect, should receive training to enable them to change their approach and, failing that, work in a different area. The level of disrespect which children report from professionals in a number of jurisdictions indicates that this matter should be taken very seriously indeed.93 Another major challenge is that there appears to be an attitude barrier which makes it difficult to have a system in which adults and children work together to solve problems. Professionals often have difficulty seeing beyond the vulnerability of children.94 Whilst it is understandable that adults wish to protect children, it must be borne in mind that not only is autonomy important for well-being (as considered extensively in Chapter 3) but also, children should have some opportunities to learn from their own mistakes.95 There should be enough flexibility, in private family law cases at least, for ‘mistakes’ to be fixed by children.96 What constitutes a ‘mistake’ is debatable anyway (and may be impossible to identify for sure).97 In any case, much of the time, children themselves will be as likely as adults to make good decisions. The literature on children’s decision-making abilities indicates that when children receive time, space and support, their abilities can be as objectively sensible as that of adults.98 Leeson argues that in ­reality it is “about adult ability and preparedness to involve young people in decisions about their own lives, rather than whether they are able to p ­ articipate

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Courts (Feb. 2015). Available at https://www.cafcass.gov.uk/news/2015/february/kitys-col umn-supporting-child-inclusivity-in-the-family-courts.aspx. (last accessed 22 Apr. 2017). See European Union Fundamental Rights Agency, note 12, in which, sadly, numerous instances of disrespect are recounted by children. See also Douglas et al., note 73. Fern, note 35, at 1124–5. Eileen Munro, “Empowering Looked-After Children” 6 Child and Family Social Work 129 (2001). See below Section 5.2 for consideration of the fact that greater flexibility is needed for children in best interest proceedings, including the possibility to alter arrangements later. Robert Mnookin, In the Interests of Children: Advocacy, Law Reform and Public Policy (WH Freeman, 1985) at 16–7. Furthermore, there is little evidence or guidance to assist professionals with best interest decision-making, so a ‘correct’ decision is hard to identify. Elspeth Kirkman and Karen Melrose, “Clinical Judgement and Decision-Making in Children’s Social Work: An Analysis of the ‘Front Door’ System” (Department for Education [England and Wales], 2014), at 4–5. See Chapter 3, Section 7. Alderson’s interviews with children preparing for surgery demonstrated that many had a profound understanding of their situation. See further Emma Cave, “Goodbye Gillick? Identifying and Resolving Problems with the Concept of Child Competence” 34 Legal Studies 103 (2014), at 105.

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effectively.”99 Many argue in child protection that more shared decision-­ making between social workers and children will lead to better best interest decisions and outcomes:100 “To that extent both the young person and the professional involved take some degree of responsibility for the decision – and for the risks.”101 The same has been argued in private family law cases: That the focus should be on bringing generations together to share decision-­making, rather than preoccupation with the question of the age at which children can take part.102 Inspiration can be sought from other areas where this type of practice is more evolved, for example mental health, in order to apply it to services involving children.103 The adversarial context is not well suited to such negotiation and flexibility, this is considered below.104 Children are often unaccustomed to having the right to make decisions,105 or perhaps they are even unused to being heard, particularly if they are from families where this is discouraged.106 This will affect their desire and ability to do be involved in best interest proceedings, and therefore they will likely need support in this regard. They may also be overly-deferent to adults, wanting to please. As part of assisting with this potential obstacle, information provision to children will be crucial. Part of having autonomous choice is being properly informed.107 Children should not have to take the initiative to find the

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Caroline Leeson, “My Life in Care: Experiences of Non-Participation in Decision Making Processes” 12 Child and Family Social Work 268 (2007), at 268. See for example Gillian Schofield and June Thoburn, Child Protection: The Voice of the Child in Decision Making (ippr, 1996), at 24–5; Cora Bartelink, Tom van Yperen and Ingrid ten Berge, “Deciding on Child Maltreatment: A Literature Review on Methods that Improve Decision-Making” 49 Child Abuse and Neglect 142 (2015); and Fern, note 35. Schofield and Thoburn, ibid, at 24–5. Gary Melton, “Parents and Children: Legal Reform to Facilitate Children’s Participation” 54 American Psychologist 935 (1999). Bartelink, van Yperen and ten Berge, note 100. See below Section 5.2. Alderson, for example, notes in the context of medical treatment that many adolescents she spoke to did not expect to have much of a say about their treatment: “It is not clear how much this is their preference, or their belief that the law prohibits their involvement until adulthood.” Alderson, note 34, and Priscilla Alderson, “Everyday and Medical Life Choices: Decision-Making Among 8- to 15-Year-Old School Students” 18 Child: Care, Health and Development 81 (1992), at 94. Brenda Hale, “Are We Nearly There Yet?” Paper presented at Association of Lawyers for Children Annual Conference 2015 (Manchester, 20 Nov. 2015), at 8. James Childress, “The Place of Autonomy in Bioethics” 20 Hastings Center Report 12 (1990), at 12–3.

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­information themselves, as they sometimes report.108 In some cases, children rely on information from their family rather than professionals, and this information can be inaccurate.109 Children also report being embarrassed if they do not understand the information110 – they may need assistance with this. Furthermore, attempts to judge children in accordance with perceptions about ‘competence’ or ‘capacity’ only serves to further disempower them. Ascertaining competence should not be the pivotal factor on which a child’s involvement depends. In any case, practitioners must see themselves as playing an important role in promoting autonomy, including working with the child’s context and increasing ‘competence’. In the medical arena it is argued that to support autonomy professionals must be mindful of the social conditions of the patient for example those involving family, which may determine the capacity of a patient for autonomous decision-making, as family expectations may diminish autonomy: “The provider must therefore take positive steps to counteract these effects, for instance, encourage imaginative reflection on different options and create the conditions in which patients truly feel authori[s] ed to speak for themselves.”111 Children – particularly those in care who may have experienced distinct hardship – may require some convincing to actually get involved. Children may resist participation as a tactic to, ironically, wield some power in the situation they are in. McLeod has identified “unforthcoming or less than co-operative” reactions from children to invitations to get involved.112 Respecting the right to choose not to be involved is hugely important but if experiences of social exclusion,113 fear, or rebellion are reasons for refusing, then there is a responsibility to do more than just accept the initial refusal and to find ways to overcome barriers to effective communication. Frequently proceedings are just too boring!114 Answers can even be found to this problem. Perhaps where a child 108 Pirjo Pölkki et al., “Children’s Participation in Child Protection Processes as Experienced by Foster Children and Social Workers” 18 Child Care in Practice 107 (2012). 109 Jeanette Cossar, Marian Brandon and Peter Jordan, “‘You’ve got to Trust Her and She’s got to Trust You’: Children’s Views on Participation in the Child Protection System” 21 Child and Family Social Work 103 (2014). 110 Pölkki et al., note 108. 111 Natalie Stoljar, “Informed Consent and Relational Conceptions of Autonomy” 36 Journal of Medicine and Philosophy 375 (2011). 112 Alison McLeod, Listening but not Hearing: Barriers to Effective Communication between Children in Public Care and their Social Workers (Unpublished PhD Thesis, University of Lancaster, 2001). 113 McLeod, note 88, at 280. 114 Pike and Murphy, note 15, at 11.

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has trouble concentrating practitioners could be limited to 15 or 20 minutes for parts of proceedings where children may be physically present; covering the information or questions in which the child is most interested in that time. There are many different ways in which proceedings could be made more appropriate for an individual child. The overriding point is that adults have a responsibility to mould proceedings to children; considering their specific needs as a group and as individuals, rather than expecting children to fit-in with the inadequate structures which presently exist. This restructuring will require that children are not incidental to proceedings about their best interests, but that their involvement is expected and welcomed. This is mostly up to those at macro level who dictate policies and resources, however there will be much that the individual professional can do also. 3.2

Trust Must be Built between Children and Professionals At the start I thought that she’d always be there and that I could talk to her and trust her but near the end I kind of couldn’t really trust her.115 He’s just like a really good friend. That’s all I think of him of anyway.116

It goes without saying that in order for children to have a good experience of being involved in proceedings, they must have relationships of trust with the professionals facilitating them. Trust and familiarity is also crucial for understanding a child’s autonomy117 and for their capacity for decision-making. ­Professionals cannot know how much paternalism is warranted in a given case if they do not have good knowledge and a relationship of trust with a child. Furthermore such a relationship will likely support children’s autonomy in that it will equip them (through information and confidence) to better make decisions. It has been pointed-out in health care for example that trust, 115 Eleven year old girl with experience of family law proceedings, quoted in Douglas et al., note 73, at 108. 116 Quote from girl, aged 11, about her legal representative. Megan Gollop, Anne Smith and Nicola Taylor, “Children’s Involvement in Custody and Access Arrangements” 12 Child and Family Law Quarterly 396 (2000). 117 Steinberg argues that one’s relationship with and knowledge about a person determines whether paternalistic treatment can be considered respectful. Ingrid Steinberg, Paternalism and the Moral Status of Children (Unpublished PhD Thesis, University of California, 2015), at 6.

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r­ espect and information-sharing minimises the need to adopt a ‘competence’ approach when involving children.118 Yet children generally appear to mistrust authority because they worry about not being taken seriously and they fear the unknown (as do adults, of course).119 Unsurprisingly children value getting to know the professional with whom they must share personal experiences and information.120 As much as possible, children should be seen in their own environment, which predictably enough is the way that they like it: She [nyas guardian] came to the house, whereas with cafcass we went down to their offices.121 Children express how much easier it is to divulge their wishes when they have a professional they know and trust to speak to: I reckon it wouldn’t be hard for them to say what they wanted from the depth of their heart if they had someone like Mr. H who would come in and spend lots of time with you, and make friends with you…122 Yet they often do not feel they have had enough time.123 In Finland a recent change in legislation requires that social workers record the hours they speak with children to ensure that children receive sufficient attention in the child protection system.124 This should be adopted in respect of all professionals working with children in best interest proceedings. Of course, there are a range of media for communicating with children – online communication, texts, and so on – which should be considered in any measure of communication between children and professionals. Further research is

118 Vic Larcher and Anna Hutchinson, “How Should Paediatricians Assess Gillick Competence?” 95 Archives of Disease in Childhood 307 (2010), at 311. 119 Children indicated in a consultation on child-friendly justice that whilst most would tell family or friends if they were being mistreated, most would not tell an official like a police officer or health worker. The report: Ursula Kilkelly, Listening to Children about Justice: Report of the Council of Europe’s Consultation with Children on Child-Friendly Justice (Council of Europe, 2010) involved more than 3,700 children from over 25 European countries. 120 See for example Douglas et al., note 73, at 107; Darlington, note 63, at 57; Tarja Pösö, “Nordic and Finnish Child Welfare Systems” Presentation at Law Society of Ireland (Dublin, 13 Apr. 2015). 121 Fourteen year old boy with experience of family law proceedings, quoted in Douglas et al., note 73, at 97. See also G. (A Child – Intractable Contact) [2013] ewhc B16., para. 59 in which it was noted that “[nyas caseworker] has spent time with G on her own, sometimes going with her to walk her dog.” 122 Fourteen year old boy quoted in Douglas et al., note 73, at 53. 123 Smith, Taylor and Tapp, note 82, at 211. 124 Pösö, note 120.

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required into how such media should feature in autonomy support, and in particular children’s experiences of such communication.125 Training for Professionals on Communication, Autonomy and Other Matters As outlined in Chapter 4, training for professionals is crucial where they are working with children in best interest proceedings, particularly if they are to provide autonomy support. They should be trained for example in communication with children, children’s rights, ‘capacity’ and its limits (and the role professionals have in supporting it) and the importance of autonomy. Unfortunately the experiences of many children around Europe indicate just how lacking systems can be in positive and respectful communication. This child in a residence case recalls being called a “spoilt girl” by the judge during proceedings and surmises: I also have opinions! … I would like to explain things, and not someone [the judge] to tell me I am spoilt and other things.126 Fortunately, learning about autonomy support in fact teaches professionals some important points about how to communicate well with children – ­acknowledging children’s thoughts and feelings for example (even where one disagrees with them) and refraining from using controlling language. Further consideration of content for autonomy support methodology is considered below.127 Research has found that it is common for professionals to find it a particular challenge to communicate with children in care.128 Children with disabilities also struggle to be heard, and it has been found that professionals tend to focus on the child’s ability to communicate rather than the professionals’ own abilities to support them to do so.129 Professionals – both judges and others – have the responsibility to ensure that they are confident and skilled in responding to and supporting individual children and particular categories of children, and 3.3

125 See below at Section 5.1 consideration of the tale project in which the potential for such communication is being examined. See http://www.project-tale.org/ (last accessed 23 Mar. 2017). 126 Girl, age nine at first hearing, Spain, quoted in European Union Fundamental Rights Agency, note 12, at 38. 127 See Section 4.1. 128 Margaret Bruce, “The Voice of the Child in Child Protection: Whose Voice?” 3 Social S­ ciences 526 (2014), at 523. 129 Marion Brandon et al., Child and Family Practitioners’ Understanding of Child Development: Lessons Learnt from a Small Sample of Serious Case Reviews (Department for Education [England and Wales], 2011), at 17.

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to seek other professionals where they do not have those skills themselves.130 It has been recommended that social workers’ competence to assist children with decision-making could arise from: “[S]pecific guidance in undergraduate social work training and also perhaps at specialist levels of post-qualifying training.”131 Of course, there is a risk of overly mystifying good communication with children – it should be understood that it is grounded in basic respect for them as individuals on the part of practitioners, something which cannot necessarily be taught. It is often emphasised that all professionals working with children should be trained in children’s rights. This applies of course to those working with children in best interest proceedings, particularly considering that it is widely ignored that being involved in proceedings is a right for children, rather than a possibility at the discretion of adults.132 It is emphasised in this book that the vaguely conceptualised and imperfectly drafted ‘right to be heard’ is a problem when it comes to upholding the right of children to be involved in best interest proceedings.133 Yet this could be combatted by emphasising in training the autonomy idea inherent in Article 12. Professionals should understand that denying children autonomy is to be taken seriously as it is so fundamental to well-being.134 They should accept that children require support and respect, and that their abilities to make decisions will depend largely on that support. There is an alarming lack of understanding of or engagement with the capacity and competence notion in the case law. There is little consensus on the question of how or even whether to judge the decision-making capacity of adults or children,135 but where professionals are tasked with making decisions in the place of children they should have some basic understanding of the area. They should learn, for example of the four elements so relied-upon in medicine for considering mental capacity: “[T]o communicate a choice, to understand the relevant information, to appreciate the … consequences of the

130 Bruce, note 128, at 523. 131 Kerrylee Weatherall and Joe Duffy, “Are We Listening to Children? An Examination of the Child’s Voice in Social Work Reports to the Court following Parental Separation Disputes” (2008) 14 Child Care in Practice 275. 132 See Chapter 4, Section 1.3. 133 See Chapter 1. 134 See Chapter 3. 135 Ineke Bolt and Marieke van Summeren, “Competence Assessment in Minors, Illustrated by the Case of Bariatric Surgery for Morbidly Obese Children” 28 Best Practice and Research Clinical Gastroenterology 293 (2014), at 296.

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situation, and to reason about … choices.”136 However the relevance of motives and contexts for choices should also be considered.137 Children may have motives and values that are different from those of adults.138 As well as considering cognitive abilities, professionals should seek to understand the emotions and values which a child holds in relation to the relevant question.139 The crucial distinction between the capacity of the child to be involved and the capacity of the child to make decisions about outcomes should also be understood.140 Professionals should be expected to have knowledge both of developmental psychology theory, and criticisms of it (because it is, after all, just theory). There should be an understanding of the importance of autonomy to wellbeing, and a scepticism should be encouraged of seeing children as either competent or lacking competence; and of linking competence to the ‘right’ to have wishes taken seriously. Autonomy is important to everyone, not only those with ‘adult’ capacities. Professionals must be trained in a number of areas, then, when working with children. Alderson emphasises a test should be required to determine whether practitioners understand children’s competence and how to enhance it.141 There should also be a body of knowledge about which practitioners in best interest proceedings should have some understanding – competence to communicate with children, to understand autonomy and autonomy support, to understand children’s rights, and to be able to think critically about the adult/child dichotomy. Professionals should be expected to have proficiency in these areas before they can work on issues relating to best interest proceedings; whether they have a role supporting children through the process, or whether they are making the final best interest decision.

136 Irma Hein et al., “Feasibility of an Assessment Tool for Children’s Competence to Consent to Predictive Genetic Testing: A Pilot Study?” 24 Journal of Genetic Counselling 971 (2015). 137 Bolt and van Summeren, note 135, at 300; Natalie Banner and George Szmukler, “Radical Interpretation’ and the Assessment of Decision-Making Capacity” 30 Journal of Applied Philosophy 379 (2013). 138 Bolt and van Summeren, note 135, at 300. 139 Ibid, at 296–8. 140 See Chapter 5, Section 1. 141 Alderson suggests that the test should be: “Are they sufficiently able: to understand all the relevant information; to retain and explain all the issues clearly and resolve misunderstandings; to assist children and parents in their reasoned choicemaking; and to respect their decisions, putting no undue pressures on them?” Alderson, note 34, at 53.

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Autonomy Support: Structuring Respect

As noted above, ‘autonomy support’ in the context of best interest proceedings is taken here to mean non-controlling, impartial information and support to form and/or express views and decisions about a best interest matter. The benefits of autonomy support are very clear.142 Children feel in control and respected,143 and perceive their choices and behaviours as what they want for themselves rather than being driven by pressure or fear.144 Autonomy support is associated with better outcomes in education and other areas145 including better social and emotional functioning.146 It makes sense, therefore, that to prioritise children’s autonomy, systems have to engage in autonomy support. 4.1 Helping Children to Make Decisions A detailed consideration of how autonomy support theory can be adapted to best interest proceedings is beyond the scope of this book, and should be subject to further research. However, for the eager professional, there are many sources from which to draw in order to engage autonomy support methods.147 Niemiec et al. in particular outline with clarity and practicality some important points for applying autonomy support techniques with children.148 They point

142 See Chapter 3, Section 3.2. 143 Richard deCharms, Personal Causation (Academic Press, 1968); Pomerantz, Grolnick and Price, note 4, at 260. 144 Wendy Grolnick, Edward Deci, and Richard Ryan, “Internali[s]ation within the Family: The Self-Determination Theory Perspective” in Joan Grusec and Leon Kuczynski, eds, Parenting and Children’s Internalization of Values: A Handbook of Contemporary Theory (Wiley, 1997). 145 Pomerantz, Grolnick and Price, note 4; Gavin Slemp, Margaret Kern and Dianne VellaBrodrick, “Workplace Well-Being: The Role of Job Crafting and Autonomy Support” 5 Psychology of Well-Being: Theory, Research and Practice (2015). 146 Yuki Hasebe, Larry Nucci, and Maria Nucci, “Parental Control of the Personal Domain and Adolescent Symptoms of Psychopathology: A Cross-National Study in the United States and Japan” 75 Child Development 815 (2004); Christopher Niemiec, Bart Soenens, and Maarten Vansteenkiste, “Is Relatedness Enough? On the Importance of Need Support in Different Types of Social Experiences” in Netta Weinstein, ed, Human Motivation and Interpersonal Relationships (Springer, 2014), at 79. 147 See for example Samantha Bindman, Eva Pomerantz and Glenn Roisman, “Do Children’s Executive Functions Account for Associations Between Early Autonomy-Supportive Parenting and Achievement through High School?” 107 Journal of Educational Psychology 756 (2015); Niemiec, Soenens, and Vansteenkiste, note 146; Soenens et al., note 3; Pomerantz, Grolnick and Price, note 4. 148 Niemiec, Soenens, and Vansteenkiste, note 146.

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to the importance, for example, of accepting the child’s thoughts and feelings; exploring their values and their desired amount of choice; minimising controlling language; assisting with skills-building and problem-solving; providing feedback; giving a sense of unconditional positive regard and communicating genuine care.149 They provide hypothetical scenarios in which they apply the principles; for example that of a mother (Marie) providing autonomy support to her “young” daughter (Juliette) concerning problems at school: To provide support for her daughter’s autonomy, Marie starts by eliciting and acknowledging Juliette’s thoughts about her experiences at school. … Having a clear understanding of Juliette’s point of view affords Marie an opportunity to begin to encourage active problem solving. Marie initiates a conversation about the types of goals or aspirations that Juliette considers to be personally important … Of course, Marie may find it useful to establish limits around Juliette’s school-related activities and, if so, then Marie is sure to provide a meaningful rationale for those limits and for other relevant requests.150 The mother also attempts to assist her daughter with skills-building and problem-solving, and gives Juliette relevant feedback along the way. The authors even provide a useful list of points for consideration by those applying ­autonomy support, divided according to the three tenants of self-­determination theory – autonomy, competence and relatedness:151 Support for autonomy 1. Elicit, acknowledge, and accept the person’s thoughts and feelings 2. Explore values and how they relate to the situation being discussed 3. Encourage self-initiation and provide a desired amount of choice 4. Provide a meaningful rationale when limits are set and for other ­relevant requests 5. Minimi[s]e use of controlling language (“should”, “must”, “ought”, and “have to”) Support for competence 1. Maintain a positive attitude toward success 2. Initiate a conversation to identify barriers to success 3. Create optimal challenges in a context of autonomy support 149 Ibid, at 82. 150 Ibid, at 82–3. 151 See further Chapter 3, Section 3.

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4. Assist the person with skills building and problem solving 5. Provide immediate, accurate, and effectance-relevant feedback 6. Provide structure through the communication of clear, consistent, and reasonable guidelines Support for relatedness 1. Assume a warm, empathic, and non-judgmental stance toward the person 2. Provide a sense of unconditional positive regard 3. Communicate genuine care, interest, focus, and non-contingent support toward the person152 It is clear that an autonomy support approach can be taken when involving children in cases in which their best interests are being considered. Children can be assisted in a structured way to make their own decisions about desired outcomes, assisted with supportive, non-controlling information and guidance if they require it. There are other sources on which to draw in order to focus on supporting children to make decisions. The un Convention on the Rights of Persons with Disabilities emphasises an obligation to maximise the involvement of people with disabilities in decision-making concerning themselves,153 focusing on a moral imperative to develop abilities rather than assuming abilities can be measured.154 Supported decision-making has been incorporated into policy and legislation around the world.155 The Mental Capacity Act 2005 of England and Wales, for example, requires such support for those with cognitive impairment,156 and extensive guidance is available for implementing this.157 152 Niemiec, Soenens, and Vansteenkiste, note 146, at 82. 153 There is brief reference in General Comment No. 12 that the notion of the evolving capacities of the child (crc Article 5) requires this in the exercise of children’s rights generally. Committee on the Rights of the Child, note 5, para. 84. 154 Michael Ashley Stein, “Disability Human Rights” 95 California Law Review 75 (2007), at 76. 155 See for example the Canadian context outlined in Barbara Carter, Supported DecisionMaking Background and Discussion Paper (Office of the Public Advocate, Victoria, 2009). Carter states that there is a continuum of supported and substitute decision-making, with the decision-making that best reflects average decision-making processes in society at one end, and fully substituted decision-making at the other. 156 Mental Capacity Act 2005, Section 1(3). Cave and Stavrinides make the point that it is unclear if this duty extends to those under 16 years old. Emma Cave and Zenon Stavrinides, Medical Practitioners, Adolescents and Informed Consent Project: Final Report (University of Leeds, 2013), at 41. 157 See for example Office of the Public Guardian, Mental Capacity Act Code of Practice ­(Office of the Public Guardian, 2013) which states that, to support someone to make a

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Likewise in medical practice there has been much research conducted on supporting decision-making by ensuring quality of communication158 and enhancing competence through various techniques.159 There are a number of sources therefore – in psychology, in the area of disability, and in medical law and practice – from where to draw upon knowledge about maximising capacity and providing support. This knowledge can and should be adapted for application in the context of children's best interest proceedings. 4.2 The Hazards of Merging Law and Therapeutic Provision Of course autonomy support verges somewhat into a ‘therapeutic’ intervention and this should not be taken lightly. Some theorists caution against the increasing role that judges and other professionals see for themselves in terms of being responsible for reduction of conflict in private family law cases, including through therapeutic intervention. It is argued that such measures can be oppressive for parents.160 It may also be oppressive for children. In some best interest cases, where children want it for example, objective fact-gathering about children’s wishes may be all that is required of ‘autonomy supporters’. Otherwise there is a risk that, where children are already sure of their wishes, autonomy support may be too intrusive for them, and veer into pressure and manipulation by professionals. The problems of blurring the boundaries between gathering children’s wishes on the one hand and more ‘therapeutic’ interventions on the other are evident in the Scottish context with the role of the curator ad litem in family law cases.161 The role of the curator has been strongly criticised for the fact that decision for themselves, one must ask, does the person have all the relevant information they need? Do they understand alternatives? And has communication of the information been conducted well? 158 Hein et al., note 136. 159 Larcher and Hutchinson, note 118, at 309. The authors provide a number of techniques for enhancing competence such as breaking the process down into smaller but linked choices, and making the child feel valued. 160 Felicity Kaganas, “Regulating Emotion: Judging Contact Disputes” 23 Child and Family Law Quarterly 63 (2011). Kaganas argues that “the growing use of therapeutic measures can be oppressive for parents, particularly mothers, and that, in any event, neither therapeutic nor educational intervention may have the expected results.” At 63. See also Lisa Young, “Resolving Relocation Disputes: The Interventionist Approach in Australia” 23 Child and Family Law Quarterly 203 (2011). 161 See B. v G. 2012 uksc 21 and Scottish Government Website, Report by the Research Working Group on the Legal Services Market in Scotland, Chapter 9 Rules of Court: Curators and Reporters, (Scottish Government, 2006). Available at: http://www.scotland.gov.uk/publi cations/2006/04/12093822/10 (last visited 31 Oct. 2014), para. 9.8.

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the content of the role can vary widely, and sometimes be instrusive. Children themselves report various undesirable practices such as being forced by curators to have contact with a parent against their wishes, having their wishes misrepresented to the courts, as well as being asked directly and in front of a parent ‘don’t you love him?’162 Practitioners often report seeing ‘participation’ as a way to gain children’s cooperation,163 which means that there is a risk that support may be instrumentalised to try to control children. This is something that children describe frequently in the research: I felt quite angry with her ’cos she hadn’t listened to what I’d said and she made it sound like I wanted to talk to my dad, which I didn’t … whatever she’d say I would make it clear that I didn’t want to see him, but I think after a while she kind of still didn’t understand.164 Some children even complain that practitioners shout at and threaten them: [T]hey [the judge and the legal counsel] … said if you do not meet with him or something, we have to lock you up here in this room together with him. And such things.165 That some professionals are unfortunately and unacceptably engaging in such tactics should not be a reason to reject autonomy support, however, in spite of the potential opportunities it presents for adults to try to coerce and influence children. This is already a risk in proceedings, and at least with autonomy support there is an explicit expectation that the professional will not pressure or control children, but instead guide them towards an understanding of their environment, supporting them to be involved in solving their own problems.166

162 Fiona Morrison, Children, Contact and Domestic Abuse (Unpublished doctoral dissertation, University of Edinburgh, 2014). Morrison undertook interviews with 15 mothers and 18 children, who had disputed contact in the context of domestic abuse. 163 G. Bijleveld, C. Dedding and J. Bunders-Aelen, “Seeing Eye to Eye or Not? Young People’s and Child Protection Workers’ Perspectives on Children’s Participation within the Dutch Child Protection and Welfare Services” 47 Children and Youth Services Review 253 (2014), at 253. 164 Eleven year old girl with experience of family law proceedings, quoted in Douglas et al., note 73, at 108. 165 Germany, male, 15 years old, party, custody case – European Union Fundamental Rights Agency, note 12, at 40. 166 Pomerantz, Grolnick and Price, note 4, at 261.

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Systems Suitable for Autonomy Support

5.1 Adequate Resources are Required for Good Processes for Children As noted in Chapter 4167 systems must be adequately resourced in order to be fit for facilitating children’s involvement in proceedings affecting them. Prioritising children’s choices as to how and whether they want to be involved in proceedings concerning them, and providing adequate autonomy support, will likely require more resources, at least in the short term.168 More children will be involved, and children will require greater support than they currently have, considering there are strong indications that what is available at present is often insufficient to ensure good experiences for children. One lawyer in a us research study commented, for example, that if all children were encouraged to be present at their child protection proceedings (to the same extent as occurs in youth justice), there would be much work to do in terms of support and preparation for those children.169 To properly enshrine autonomy support, systems will require dedicated support professionals and well-trained judges. Good systems and necessary modifications “are not cost neutral.”170 Children should receive support and information, have some time to think, and be allowed to change their minds if they try out a particular arrangement and it does not work for them. The point has often been made that “involving children is a process, not an event”.171 Yet all too often children’s involvement is seen as a one-off event. There is a ‘hearing’ and the child is then considered to have been heard. And it seems that service provision is getting worse, rather than better.172 Legal aid cuts have disproportionate impacts on women and children,173 who are in greatest need of legal aid. The time constraints faced by professionals is a consistent obstacle to simply hearing children, let alone 167 Section 2.4. 168 Prioritising children’s autonomy may ultimately lead to disputes being resolved more quickly, see further below. 169 Astraea Augsberger, Vicki Lens, and Andrea Hughes, “‘I didn’t Know You were Fighting so Hard for Me’: Attorneys’ Perceptions of Youth Participation in Child Dependency ­Proceedings” 54 Family Court Review 578 (2016), at 587. 170 Brandon et al., note 129. 171 See for example Robbie Gilligan, “Children In Care: Global Perspectives On The Challenges Of Securing Their Wellbeing And Rights” in Anne Smith, ed, Enhancing Children’s Rights: Connecting Research, Policy and Practice (Palgrave Macmillan, 2015), at 134 and Stephen Cobb, “Seen But Not Heard?” Family Law 144 (Feb. 2015), at 152. 172 See Chapter 4, Section 2.4. 173 Felicity Kaganas, “Justifying the laspo Act: Authenticity, Necessity, Suitability, Responsibility and Autonomy” Journal of Social Welfare and Family Law (forthcoming, 2017), Conclusion; Stalford, Hollingsworth and Gilmore, note 11, Chapter 2; and Mavis Maclean,

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providing them with adequate support.174 Research in England and Wales indicates that judges are concerned about the limited time children’s guardians and others are able to allocate to spend with children: “The amount of involvement [of guardians and legal aid solicitors] with children is pretty poor compared to what it used to be … There is a lot less relationship-building between the child and their representatives…”175 The discourse of a ‘cost/benefit’ analysis; that is, attempting to ensure that expenditure is perceived to have sufficient (economic) benefits; pervades all discussions of children’s services, including the matter of whether they are to be involved in their own proceedings.176 Such analyses should be resisted on moral grounds. Economic benefit for the state should not be the priority for all policies. Nevertheless there are in fact economic benefits to adequate support in legal proceedings, as it appears that cuts to legal aid budgets have led to proceedings which are more drawn-out and more difficult to resolve; where adequate support is lacking:177 The cuts may have resulted in a slight dip in contested cases but such cases are taking up more time and causing more aggression and distress in court, not less. Rather than prompting individuals to pursue less litigious alternatives to dispute resolution, these cuts have triggered an unprecedented and worrying trend in self-representation before the courts, creating longer delays than ever and significantly disempowering those without the skills or knowledge to represent themselves effectively.178 John Eekelaar and Benoit Bastard, eds, Delivering Family Justice in the 21st Century (Hart Publishing, 2015), at 1. 174 Kirkman and Melrose outline the challenges that social workers may face when making decisions about children including time and workload pressures and receiving information of relatively low quality (which further affects the time and workload issue as much follow-up is needed). Kirkman and Melrose, note 97, at 4–5. See also Pölkki et al., note 108. 175 District judge, quoted in David Lane, Child-Centred Decision-Making in Public Law ­Proceedings in England and Wales: Perspectives of the Judiciary (PhD Thesis, forthcoming 2017). 176 Stalford makes the point that the final report of the review of the family justice system in England and Wales in 2011 contains 145 references to cost/benefit. Family Justice Review, Final Report (Published on behalf of the Family Justice Review Panel by the Ministry of Justice, the Department for Education and the Welsh Government, Nov 2011). Helen Stalford, “The Price is Rights!: Cost Benefit Analysis and the Resourcing of Children’s Services” (forthcoming, 2018). 177 Stalford, ibid. 178 Stalford, Hollingsworth and Gilmore, note 11, Chapter 2. The authors cite Ministry of ­Justice, Legal Aid Agency Legal Aid Statistics in England and Wales: January to March 2016 (Ministry of Justice, 30 June 2016).

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By the same token, adequate support for children in proceedings about their best interests will likely also make for more efficient proceedings. Prioritising children’s autonomy may ultimately lead to disputes being resolved more quickly as parents with entrenched positions are more likely to be forced to prioritise their child’s experience rather than their own. It is also likely that many cases will not come to court as a parent seeking an order against the wishes of the child will be unlikely to succeed. I have argued elsewhere, for example, that the case of Re J.S. (Disposal of Body)179 should never have come to court.180 In this case, the estranged father of a 14 year old who was dying of cancer was trying to prevent her plans for her body after death. He ultimately failed.181 If a children’s autonomy principle had been in place, it would have been clear that the father would not have been successful in his efforts, as the wishes of the child would likely determine the outcome in what was a essentially a best interest decision about which parent was to have responsibility for her body after death. Though prioritising and supporting children’s autonomy may result in a long-term decrease in expenditure in the legal system, this point is unlikely to prompt immediate change. In the short term, policy-makers and practitioners interested in prioritising children’s autonomy may have to improvise. There are at present many innovative approaches to legal aid which could be considered in order to promote children’s autonomy.182 At a minimum, in states where at present there is no facility through which to hear children, something along the lines of the ‘Views of the Child Report’ in Canada, a new type of report introduced to reduce delay and costs, would be a start. These non-evaluative reports may provide children’s views verbatim to courts. In less complicated cases these could be a compromise solution where nothing else is available. There should be awareness however that such reports are very limited183 and will likely not provide children with the opportunity to be adequately involved. 179 [2016] ewch 2849. 180 See Aoife Daly, “Cryogenics, Children and the Law” The Liverpool View (25 Nov 2016). Available at https://news.liverpool.ac.uk/2016/11/25/viewpoint-cryogenics-children-and -the-law/ (last accessed 3 Apr. 2017). 181 The court decided that the mother (who supported the girl’s plans) was to take responsibility for her body after death. 182 See for example suggestions at Open Democracy: https://www.opendemocracy.net/ openglobalrights/lotta-teale/how-to-pay-for-legal-empowerment-alternative-structures -and-sources (last accessed 3 Apr. 2017). 183 Rachel Birnbaum, Nicholas Bala, and John-Paul Boyd, “The Canadian Experience with Views of the Child Reports: A Valuable Addition to the Toolbox?” 30 International Journal of Law, Policy and the Family 158 (2016), at 174. They would be particularly unsuitable, for example, for high conflict cases.

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Children require a face-to-face contact person; a professional to provide them with the guidance and support that they need to understand and/or to be involved in the process as they see fit.184 Yet a certain amount of generic information may be useful and some innovative initiatives, many involving online tools, can be of assistance. The tale project is one such initiative.185 It involves working with both children and front-line legal practitioners to develop training materials on children’s rights. It draws upon real case examples in which children’s rights principles are embedded in cases from beginning to end. At the end of the project the cutting edge insights will be developed into online tools for professionals. These kinds of initiatives will ensure that practitioners do not have to reinvent the wheel when trying to support children and to facilitate their autonomy in proceedings; instead they can draw upon easyto-use training materials and practice resources in order to progress children’s rights in proceedings. Ultimately, however, innovations and online tools are not sufficient. The current crisis for children (and their parents of course) in legal aid and other necessary supports must be taken seriously. It is next to impossible for adults, let alone children, to understand and negotiate legal systems without proper legal assistance.186 In order for children’s involvement in proceedings to be given the prominence it deserves, it needs to be emphasised that there are serious due process and fair trial issues at play. There is a need for and an obligation on children’s rights advocates to take greater initiative in order to assert the various aspects of the right of children to involvement in their own proceedings. There is potential, for example, for progression of children’s due process rights under the European Convention on Human Rights. The court reads 184 See Chapter 4, Section 2.3.3. 185 See the tale project website at http://www.project-tale.org/ (last accessed 23 Mar. 2017). See also Angela Melville, Karen Laing and Frank Stephen, “Family Lawyers and Multiagency Approaches: Why Don’t Lawyers Work with Other Service Providers?” in Mavis Maclean, John Eekelaar and Benoit Bastard, eds, Delivering Family Justice in the 21st Century (Hart Publishing, 2015) and Jane Mair, Fran Wasoff and Kirsteen Mackay, “Family Justice Without Courts: Property Settlement on Separation Using Contracts in Scotland” in Mavis Maclean, John Eekelaar and Benoit Bastard, eds, Delivering Family Justice in the 21st Century (Hart Publishing, 2015). 186 See note 173. See also Sarah Phillimore, Book Review: Delivering Family Justice in the 21st Century (Edited by Mavis Maclean, John Eekelaar and Benoit Bastard, Hart Publishing, 2015) The Incorporated Council of Law Reporting for England and Wales (5 Nov. 2015), available at: http://www.iclr.co.uk/book-review-delivering-family-justice-in-the-21st-century/ (last accessed 30 Mar. 2017) in which some insightful points about current litigant-in-person crisis are made from a practitioner perspective.

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­unenumerated rights into the Convention187 and Articles 6 and 8 have some potential for children,188 who in order to be involved in proceedings are heavily reliant on assistance compared to adults. To effectively enjoy due process rights it should be argued that adequate resources are necessary for children.189 The right to a fair trial may require that the state provides facilities such as legal representation (in particular to assist children in exercising party status). There have been some such successes in criminal law – in T. v United Kingdom190 the Court acknowledged the inhibitions and immaturity of a child defendant, qualities which required that procedure be modified in order for him to effectively participate in proceedings.191 There are strong arguments to be made that proceedings in which children’s best interests are determined with little or no input from children are contrary to Article 6 and/or Article 8,192 and that likewise, modifications to proceedings are necessary at a structural level in order for children to have any possibility of enjoying due process rights. 5.2

Greater Room for Negotiation is Necessary They’re never too young to say what they want … ’cos it can always change as they grow older or they change their mind. I think that the parents should take it back to court if the children change their mind again…193

The common law adversarial system is highly unsuited for family law cases. Parents are focused on ‘winning’, they are often advised not to speak to each 187 Golder v United Kingdom, Appl. No. 4451/70, judgment of 21 February 1975. 188 The Court has held that there are “procedural requirements implicit in Article 8.” Sahin v Germany, [2003] 36 ehrr 765, para. 77. See further Aoife Daly, “The Right of Children to be Heard in Civil Proceedings and the Emerging Law of the European Court of Human Rights” 15 International Journal of Human Rights 441 (2011). 189 See for example Airey v Ireland (1979–80) 2 ehrr 305 in which it was recognised that an individual may require assistance from the state for meaningful enjoyment of rights. 190 (1999) 30 ehrr 121. 191 The Court opined that “the formality and ritual of the Crown Court must at times have seemed incomprehensible and intimidating for a child of eleven.” Ibid, at 88. For further consideration of the jurisprudence of the Court concerning youth justice, see Ursula Kilkelly, “The crc in Litigation Under the echr” in Ton Liefaard and Jaap Doek, eds, Litigating the Rights of the Child (Springer, 2015). 192 See further Daly, note 188. 193 Eleven year old boy with experience of family law proceedings, quoted in Douglas et al., note 73, at 59.

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other, and their disputes can have psychologically damaging effects on both them and their children.194 Considering the potential for animosity and high costs, are inquisitorial systems better for children’s involvement in proceedings affecting them? Perhaps establishing a less overtly legal arena, as with the Scottish Children’s Hearings system, would be possible? There are arguments for and against, with those in favour pointing to the decreased acrimony and potential economic savings,195 and those against arguing that it will not in fact save money (as more judges will be needed) and that it will lead to ‘rough justice’196 – judgments delivered more quickly and less considerately. Many argue that the system used should be that chosen by the parties.197 Whether an inquisitorial system does in fact work better for children (or for families more generally), or whether a different approach entirely is required, is something on which further research is required. It seems that children speak directly to judges more frequently in inquisitorial systems, but of course this does not necessarily mean that they are enjoying a superior implementation of a ‘right to be heard’, nor that they are enjoying autonomy support to a higher extent.198 In any case, children’s involvement in all legal systems is often seen in terms of the competing positions of the adults involved – their parents in private law, 194 Joan Kelly, “Psychological and Legal Interventions for Parents and Children in Custody and Access Disputes: Current Research and Practice” 10 Virginia Journal of Social Policy and the Law 129 (2002), at 131. 195 In 2014 the Lord Chief Justice of England and Wales appeared to advocate such a change: Owen Bowcott, “Inquisitorial System may be Better for Family and Civil Cases, Says Top Judge” The Guardian Online (4 Mar. 2014). Available at https://www.theguardian.com/law /2014/mar/04/inquisitorial-system-family-civil-cases-judge-lord-thomas (last a­ccessed 24 Apr. 2017). 196 Lorna Borthwick, “Why an Inquisitorial System for Family Courts Won’t Work” Halsburys Law Exchange (12 Mar. 2014) Available at http://www.halsburyslawexchange.co.uk/why -an-inquisitorial-system-for-family-courts-wont-work/ (last accessed 24 Apr. 2017). See also Adrienne Barnett, “Family Law without Lawyers: A Systems Theory Perspective” 39 Journal of Social Welfare and Family Law 223 (2017). 197 See for example Gabrielle Davis, Nancy Ver Steegh and Loretta Frederick, “An Appeal for Autonomy, Access, and Accountability in Family Court Reform Efforts” 52 Family Court Review 655 (2014) and Maclean, Eekelaar and Bastard, eds, note 173. 198 In Chapter 4, Section 1.3 it is noted that the Nordic legal tradition can be described as ‘a third way’ which cannot be firmly classified as either common law or civil law systems. Pernilla Leviner, “Child Protection Under Swedish Law: Legal Duality and Uncertainty” 17 European Journal of Social Work 206 (2014), at 210. Many authors argue that children are frequently left unheard in these legal systems. See for example Eva Ryrstedt and ­Titti Mattsson, “Children’s Rights to Representation: A Comparison between Sweden and ­England” 22 International Journal of Law, Policy and the Family 135 (2007), at 139.

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and parents and state in public law. Choices are overwhelmingly seen as binary in nature, with the child being expected to side with one or the other.199 The adults define the choices, with little if any space for children “to identify and articulate that middle ground, or to suggest the compromises that might lead to settlement.”200 Yet the matters at play in family law proceedings are often not necessarily binary and there should be opportunities for children to provide suggestions and solutions, and to have those prioritised. Legal processes must facilitate children to try different options and to change their minds.201 There should be an element of flexibility built-in to arrangements so that children can seek to change them if they wish. Children state that it is very important to them to have flexible arrangements that can be modified in accordance with their changing needs.202 Yet research points to the inability of children to secure changes to private law arrangements,203 or to timelines imposed by the adult agenda.204 Mediation is of course one obvious arena in which there is potential for greater flexibility of approaches and outcomes. It has been suggested that mediation and other alternative dispute resolution approaches have been shown to result in more amicable and enduring arrangements, with parents more likely to be aware of their children’s needs.205 In any case it may facilitate 199 Koh Peters states that the dichotomy of ‘best-interests’ versus ‘wishes’ dichotomy is unhelpful in that “most of the views cluster on the spectrum somewhere between best interests and wishes, but the dichotomy makes many interlocutors appear to be polarized, when in fact they have a good deal in common.” Jean Koh Peters, Representing Children in Child Protective Proceedings: Ethical and Practical Dimensions (3rd edn, LexisNexis, 2007), at 66. 200 Cashmore and Parkinson, note 86, at 19. 201 Carol Smart, “From Children’s Shoes to Children’s Voices” 40 Family Court Review 307 (2002), at 307. 202 Gollop, Smith and Taylor, note 116; John Eekelaar, “The Interests of the Child and the Child’s Wishes: The Role of Dynamic Self-Determinism” in Philip Alston, ed., The Best Interests of the Child: Reconciling Culture and Human Rights (Clarendon Press, 1994), at 42. 203 Judith Timms, Sue Bailey and June Thoburn, “Children’s Views of Decisions Made by the Court: Policy and Practice Issues Arising from the Your Shout Too! Survey” (2008) 14 Child Care in Practice 257, at 268. 204 Gilligan, note 171, at 134. Lengthy proceedings are seen as contrary to the best interests of the child, see B. v G. 2012 uksc 21, para. 21 and Kopf and Liberda v Austria (Application No 1598/06) [2012]. Consequently, hearing children is often seen as a time-consuming inconvenience. See Scottish case Hall v Hall 2014 wl 4063101 and E.G. v J.G. [2013] ew Misc 21. See also Chapter 6, Section 5.2. 205 Joan Kelly, “Children’s Living Arrangements Following Separation and Divorce: Insights from Empirical and Clinical Research” 46 Family Processes 35 (2007), at 40; Jennifer

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families to explore options and to determine what is fundamental to children’s happiness and how children may adjust to arrangements.206 Most parental disputes are settled out of court,207 and many agreements are then endorsed by the courts. Yet there are significant questions over a push for more mediation, a push which is inevitably part of the agenda to end access to legal aid in private disputes.208 There are broad problems such as the fact that it is only suitable for low-conflict cases,209 and it is also evident that separating couples frequently are not in favour of it, opting instead to self-represent in court.210 As an alternative mechanism for resolving disputes mediation has not led to greater visibility of children’s involvement. Such processes often fail to involve children at all.211 Frequently there is no requirement that children are heard in mediation even where there is an obligation to hear them in legal proceedings,212 and ­McIntosh et al., “Child-Focused and Child-Inclusive Divorce Mediation: Comparative Outcomes from a Prospective Study of Postseparation Adjustment” 46 Family Court Review 105 (2008). It has also been suggested however that evidence does not exist to prove the effectiveness of mediation. See for example Robert Dingwall, “Divorce Mediation: Should we Change our Mind?” 32 Journal of Social Welfare and Family Law 107 (2010). 206 Cashmore and Parkinson, note 86, at 21. 207 Rachel Birnbaum and Nicholas Bala, “The Child’s Perspective on Legal Representation: Young Adults Report on Their Experiences with Child Lawyers” 11 Canadian Journal of Family Law 25 (2009). 208 Kaganas, note 160; Rachel Treloar, “The Neoliberal Context of Family Law Reform in British Columbia, Canada: Implications for Access to (Family) Justice” in Mavis Maclean, John Eekelaar and Benoit Bastard, eds, Delivering Family Justice in the 21st Century (Hart Publishing, 2015); Greg Mantle et al., “Establishing Children’s Wishes and Feelings for Family Court Reports: The Significance Attached to the Age of the Child” 13 Childhood 499 (2006), at 500. 209 Jess Mant, “Neoliberalism, Family Law and the Cost of Access to Justice” 39 Journal of Social Welfare and Family Law 246 (2017). 210 Rosemary Hunter, “Inducing Demand for Family Mediation: Before and After laspo” 39 Journal of Social Welfare and Family Law 189 (2017). 211 See for example in the Swedish context Eva Ryrstedt, “Mediation Regarding Children: Is it Always in the Best Interest of the Child?” 26 International Journal of Law, Policy and the Family 220 (2012), at 229. There are some noteworthy attempts to include children in mediation, however. See for example Amy Holtzworth-Munroe et al., “Child Informed Mediation Study (cims): Incorporating the Children’s Perspective into Divorce Mediation in an American Pilot Study” 16 Journal of Family Studies 116 (2011) and Connie Healy, “The Collaborative Process, a ‘Mechanism’ to Hear the Voice of the Child?” 13 Irish Journal of Family Law 102 (2010). 212 Mantle et al. state that, in the context of England and Wales, although mediation can involve the participation of children, “consulting the child in mediation remains a r­ elatively

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there is less transparency in mediation as compared with the formal court process.213 Of course, Article 12 enshrines the right of children to be heard in all matters affecting them, therefore mediation should obviously be included in this. The absence of fair trial and human rights considerations in mediation, some of which is compulsory before or in place of access to court, is enormously problematic.214 For mediation to be acceptable from the perspective of the children’s autonomy principle, the mediator must have the skills and training to work with children;215 they should understand that the involvement of children is a right rather than an option; and children should still have an ‘autonomy support’ professional (someone other than the mediator) where they decide that they need it. There have been calls to make mediation more fit for purpose216 in the modern neo-liberal landscape of legal aid cuts.217 No matter what the system or approach, children’s autonomy should be to the forefront when best interest decisions are being made on their behalf.

Conclusions on Embedding the Children’s Autonomy Principle in Good Systems

It has been argued throughout this book that, instead of a right to be heard, the focus should be on children’s autonomy in proceedings determining their best interests. Yet it is accepted that legal systems are not well designed for such an approach. For many children, a presumption in favour of their wishes will suffice in order for them to enjoy a right to respect for autonomy. For other children however, this will not be enough – they will require assistance. As it has

213 214

215 216 217

undeveloped area of practice”, at 500. Mantle et al. cite e.g. Greg Mantle, ­“Involving ­Children in Court-Based Family Mediation” 14 Representing Children 187 (2001). See also Adrian James, “The Voice of the Child in Family Mediation: Norway and England” 18 International Journal on Children’s Rights 133 (2010). For analysis of the us and Irish context, see also ­Connie Healy, Resolution of Conflict in Family Law Matters: An Alternative and Child-­ Inclusive Approach (Unpublished Ph.D. Thesis, National University of Ireland Galway, 2014). In Chapter 5 it is outlined that the positioning and prioritising of children’s wishes by courts lacks transparency because there is little clarity on how to ‘weigh’ views. Lorna McGregor, “Alternative Dispute Resolution and Human Rights: Developing a Rights-Based Approach through the echr” 26 European Journal of International Law 607 (2015). See Birnbaum, Bala, and Boyd, note 183; and Kelly, note 194. Anne Barlow, “Rising to the Post-laspo Challenge: How Should Mediation Respond?” 39 Journal of Social Welfare and Family Law 203 (2017). Mant, note 209; Treloar note 208.

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been demonstrated to be so beneficial for children’s well-being in other areas, it is suggested here that ‘autonomy support’ should be available to children in order not just to uphold their wishes, but to assist them to form those wishes. It is important that professionals are mindful about undue intrusion into the life of a family when children are being provided with autonomy support. However, as highlighted throughout this book, children as individuals are often invisible in proceedings and their autonomy requires prioritisation in order to remedy this. Some level of ‘interference’ through inviting children to be involved is therefore justifiable and necessary. Parents should be expected to discuss matters with their children also. Undoubtedly, legislative change is needed in order to recognise equality for children, and particularly for a presumption in favour of their wishes in best interest decisions. Moreover, although there are many roles already in place at domestic level which have elements of autonomy support, designated professionals who are trained in autonomy support techniques should be made available to children when their interests are being determined in best interest proceedings. There are likely many acceptable ways of providing autonomy support to children to support them to make decisions and to adequately enjoy due process rights. The New Zealand children’s lawyer model, whereby both legal representation and support is provided to children,218 appears to be a particularly suitable one for the ‘autonomy support’ role, although the paternalism of the New Zealand model will likely have to be mitigated somewhat. Where legislative change is not forthcoming, practitioners can still take it upon themselves to engage the philosophy of the children’s autonomy principle in practice. Social workers, guardians, psychologists and others can implement ‘autonomy support’ techniques, and prioritise children’s wishes. Judges have much discretion as to whether to hear children, and even more when ‘weighing’ children’s wishes. There are various challenges for the adults working with children, such as intergenerational communication gaps, training needs, demanding workloads and timescales.219 This makes it understandable that adults may struggle to prioritise support for children’s autonomy. Yet it is up to adults – not children – to understand how children can be facilitated to enjoy their autonomy in proceedings concerning them to the extent ­possible. Many professionals are undoubtedly already autonomy supportive for ­children, but clearly some are not, as children sometimes feel judged and manipulated.220 There is much room, therefore, for improvement. 218 Fernando, note 52. 219 Bruce, note 128, at 523. 220 See for example European Union Fundamental Rights Agency, note 12.

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Adequately resourced systems will be crucial in order to embed respect for children’s autonomy. This may seem an unrealistic aspiration in a fraught legal aid context, where so many parents are going unsupported and unrepresented. Yet there are strong arguments in favour of adequately providing for autonomy support for children so that they can be as involved in proceedings as they wish to be. The first argument is moral – the rights that children are so r­ eadily denied in best interest proceedings are considered fundamental for adults. Laws concerning adults with cognitive impairment have improved significantly when it comes to recognising autonomy rights, and it is now well-accepted that this group is entitled to prioritisation of their wishes and support with their decision-making.221 Children should be entitled to the same treatment. Secondly, it is very likely that prioritising children’s autonomy will lead to fewer and shorter disputes. It will encourage parents to give greater consideration to the position of their children, as their children will genuinely be the most important individuals in proceedings. This is only fair, as the outcome is after all supposed to be that which is in the best interest of the child. Furthermore, disputes will be less likely to go to court if parents are advised that they are unlikely to be successful where the child is against the outcome sought by the parent. There are numerous matters on which further research is required. The way in which autonomy support methods can be adapted for legal proceedings must be fully examined. One important question is whether prioritisation of children’s autonomy ultimately requires broad changes to adversarial systems which focus on the positions of the parents and can be particularly unpleasant for children. Although a children’s autonomy principle may still be implemented in the adversarial system, it is far preferable to ensure that the resolution of children’s cases permit the level of negotiation and flexibility which children want and need. Finally, analysis is required around how and whether mediation can uphold children’s autonomy. It certainly has potential to facilitate children and adults to come together to resolve disputes in a less adversarial and less formal way. Yet, to date, children’s wishes have not been prominent in most mediation models. The argument in favour of prioritising children’s autonomy does not claim to resolve broader questions concerning the type of system needed in order to secure equitable family justice. It simply seeks to insist upon a prominent position for children in those systems and in those debates.

221 See Chapter 1, Section 7.

Conclusion 1

Recognising that Children Deserve More than a Right to be Heard

The central argument in this book is that instead of focusing on the crc ­Article 12 ‘right to be heard’ in best interest proceedings, we should focus on autonomy: The ideal that we should all have personal freedom in our lives to the extent possible. There is insufficient appreciation of the fact that best interest ­proceedings – proceedings which are determined in accordance with the best interest of the child (as the primary consideration) – take children’s choices from them. In liberal democracies freedom in our personal lives is the quality which is prioritised over all others. This is why those with cognitive impairment have extensive due process rights, and a right to supported decision-making; and why a high standard of harm must be reached before authorities override parental autonomy. It is very surprising that there has been such willingness to accept a text that proposes a mere ‘right to be heard’ for children in similar circumstances. Instead of a right to be heard, then, it is argued in this book that we should explicitly aim to facilitate children to exercise autonomy to the highest degree possible, through a children’s autonomy principle. It is reasoned that such a principle should, in legal decisions in which the best interest of the child is the primary consideration, give children a right to choose – if they wish – how they are involved (process autonomy) and the outcome (outcome autonomy) unless it is likely that significant harm will arise from their wishes. In spite of some potential and in spite of the efforts of the Committee on the Rights of the Child the vague, unambitious ‘right to be heard’ has not delivered what one would have hoped in best interest proceedings. In fact it may have compounded the treatment of children in these contexts by leading adults to believe that ‘hearing’ children sufficiently accounts for denying children autonomy. It does not account for it – it has been outlined in this book that children are regularly excluded from proceedings affecting them. It has distracted from due process rights for children, and their involvement has consequently not been seen as a ‘right’. What has perhaps been most particularly lacking is an impartial person to advocate for children’s wishes. Importantly, systems have simply not been properly resourced to ensure that children always have an opportunity to be involved, nor to ensure the support they may need.1 Most strikingly, the “due weight” element of crc Article 12 has facilitated adults to downplay, override and dismiss children’s wishes with ease. Even 1 See Chapter 4.

© koninklijke brill nv, leiden, ���� | doi 10.1163/9789004355828_010

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where decision-makers do take the time and effort to consider what terms and concepts such as ‘competence’, ‘manipulation’ or ‘weight’ might mean (they usually do not), it is all too easy to decide that those concepts mean whatever is convenient to justify the outcome of the case.2 Children tend to have great weight attached to their views only in cases where judges are inclined to decide in that direction anyway;3 which appears to render weighing views a pointless exercise. It seems that children’s views get accorded the least weight in cases where they need it the most – that is, cases where judges disagree with them. Where judges uphold children’s wishes, it is because they think those children are ‘right’, not because they believe that autonomy is important. Children are not permitted to be ‘wrong’ no matter how slight the potential harm from the perceived mistake. Children are routinely denied due process in proceedings concerning their own legal interests and ordered by courts into relationships they do not want. In many cases, the wishes of the children are not even featured,4 highlighting the toothlessness of a ‘right’ which can so easily be ignored. Urging a movement towards respect for autonomy will likely improve the situation of children. Autonomy is a useful and important concept not because it is about always getting what one wants. It is instead about insisting that we respect others – their lived experiences, their values, their beliefs; none of which a separate individual can ever truly understand.5 Autonomy should be as much about the obligations of adults to respect children as individuals, and to treat their choices as important, as it is about children’s rights claims. It is also a more simple term to understand, denoting as it does the individual with rights to personal choices. The useful concept of ‘autonomy support’ from the discipline of psychology can further assist in emphasising the positive obligations adults have to support children in this regard rather than abandoning them to a lonely process or decision.

2 See for example consideration in Chapter 5, Section 1.3.1 of the inexplicable conclusion that “strong” views are “mature” views in T. (Children) (Abduction: Child’s Objections to Return) [2000] 2 flr 192. 3 See for example G. (A Child: Intractable Contact) [2013] ewhc B16, para. 85 and Re G. (Abduction: Children’s Objections) [2010] ewca Civ 1232, para. 21. 4 See for example M. (Children) [2013] ewca Civ 1147 and practice in Ireland family law considered in Chapter 4. 5 James Childress, “The Place of Autonomy in Bioethics” 20 Hastings Center Report 12 (1990), at 12–3.

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Conclusion

Prioritising Children’s Autonomy in the Courts: Moving Beyond a Right to be Heard

A new approach is needed in best interest proceedings therefore; whereby autonomy becomes more central to what we think about children. The redrafted, ‘ideal’ crc Article 12(2) is suggested in this book, which enshrines a children’s autonomy principle as well as other important elements of children’s involvement in proceedings such as the right to equality before the law and the right to appeal. This critical examination of the legitimacy and real-world ­application of ­Article 12 comes at a time when theorists are challenging the d­ ominant, c­ rcbased paradigm as lacking real-world contextualisation or an ­appreciation of the social, economic and historical factors which affect ­children’s rights.6 Vandenhole et al., have noted “something seems to be going on in c­ hildren’s rights scholarship.”7 Challenges to the crc framework8 include Liebel’s ­“children’s rights from below” – a more context-specific u ­ nderstanding of rights mindful of daily experiences,9 and Hanson’s and Niuwenhuys’ ­invocation of ­“living rights” – claims children make in their lived realities.10 These works aim to better contextualise children’s rights and think beyond the narrow crc context which has to date been accepted rather uncritically. This book provides a critique of our dependence to date on Article 12 as our source of children’s rights in proceedings, and urges that we push beyond it in ­response to the challenges raised when children’s best interests fall to courts to determine. It must be appreciated that the drafting process for the crc was long and difficult,11 and indeed that instrument has achieved much progress for the ­status of children across many arenas – at the level of government policy, for example. Yet it is important to acknowledge where standards have not been sufficient. These areas have included children as participants in armed conflict, exploitation of children, and access to international justice for children, and we now have three Optional Protocols to the crc to recognise this. It would 6

Wouter Vandenhole et al., Routledge International Handbook of Children’s Rights Studies (Routledge International Handbooks, 2015), at 2. 7 Ibid. 8 Ibid, at 1. 9 Manfred Liebel et al., Children’s Rights from Below: Cross-Cultural Perspectives (Palgrave Macmillan, 2012). 10 2013. 11 See further Geraldine Van Bueren, The International Law on the Rights of the Child ­(Martinus Nijhoff, 1995).

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be possible to introduce a fourth in which a higher standard of autonomy in proceedings could be enshrined. It is not unreasonable to take the crc – an instrument drafted decades ago and with no input from children – as a “starting point”12 and to demand more for children’s rights. 3

Reframing the Best Interest Principle to Explicitly Include Autonomy

It must be accepted that best interest decisions are substitute decisions on behalf of children. Just as with adults with cognitive impairment, overriding children’s wishes should be taken very seriously, and efforts should be made to support and assist children with such decisions. The notion of autonomy should be at the heart of such efforts. Although the best interest principle is a positive tool for focusing the attention of adults on the interests of children rather than others, unfettered it is simply a tool for imposing societal biases, such as ‘contact at all costs’. In attempting to deal with the riddle of childhood the pendulum has swung so far in favour of paternalism that the integrity of the best interest principle itself must be called into question. The minority/ majority divide is a simplistic answer to a complicated question – the question as to how much protection versus choice children should have. In the context of best interest proceedings, it seems justifiable to retain that divide only if an assumption is introduced that children should have the choices adults have, until it is proven that they need protection. There is extensive evidence that autonomy is crucial for well-being and that children are harmed from autonomy denial in best interest cases.13 It seems like the only potential harm which the courts refuse to allow to children is that which arises from options which children choose themselves. Courts regularly accept harm to children where parents or even courts themselves are imposing it; leaving children in inadequate families rather than taking them into care;14 and enforcing unwanted living arrangements on children.15 And yet the courts will override children’s wishes, often without even making reference to any perceived harm, instead just deciding that the overriding of the child’s wishes 12

Lars-Göran Sund and Marie Vackermo, “The Interest Theory, Children’s Rights and Social Authorities” 23 International Journal of Children’s Rights 752 (2015), at 753. 13 See Chapter 6, Section 2.1. 14 Re L. (Care: Threshold Criteria) [2007] 1 flr 2050, at para. 50. 15 See M. v B. [2016] ewhc 1657, at para. 23; Re E. (Children) [2011] uksc 27, at 34; and Irish case I.P. v T.P. [2012] 1 ir 666.

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is in the child’s ‘best interests’. There is little if any consideration of the fact that overriding autonomy is inherently harmful. Ironically it is in extreme cases in which life and death issues are at play that children’s wishes are taken most seriously. The framework of medical law insists on great respect for autonomy; and when children’s interests are considered within this framework, in spite of the absence of autonomy in other areas of the law, they attract a deferential approach to their autonomy similar to that enjoyed by adults.16 They find it more difficult to have their wishes upheld than adults where they refuse to consent, yet courts at least take time considering children’s ‘competence’, motivations, and so on in such cases. If in these most extreme cases courts are willing to engage in taking children’s wishes seriously, both in process and outcomes, then why not all cases? The disparity in the treatment of autonomy between different types of cases is illogical and unfair. A process or model for courts and others applying the children’s autonomy principle is suggested in Chapter 6 (Section 6). It should be asked: “Is the outcome being determined by what is in the child’s best interests? Does the child have a wish as to the outcome? Does the child want this wish to prevail? Is the best interest question free of legitimate obstacles to children’s wishes? Is significant harm unlikely to result from following the wishes of the child?” If the answer to all questions is ‘yes’, then the outcome should be in favour of the wishes of the child. The appeal for respect for autonomy posed in this book does not claim to be a panacea for all challenges faced by children. It is a proposal for a change of approach in one area, with the aim of shifting the framework for children; changing entrenched assumptions about their abilities, motivations and their status. It may not be as suited to contexts outside liberal democracies where the focus on the individual and on autonomy is not as strong. It may not necessarily transfer well outside of the ‘official’ context of best interest proceedings to schools or families. It may still, as with the current protection versus participation approach, sometimes require value judgments by decision-makers (albeit with a more finite threshold of ‘significant harm’). It may have to be framed as an ‘interpretation’ of crc Article 12 unless there is an explicit change to the text of that provision, a claim which may not be received well by courts. It may have to be applied more as an ideological value than a legal principle. But it is hoped that it can build on the discourse sparked by the Article 12 right to be heard to encourage a more transparent and concrete approach to children in proceedings when their interests are being determined by adults. 16

See for example Re J.S. (Disposal of Body) [2016] ewch 2849; X. (A Child) [2014] ewhc 1871; An nhs Foundation Trust v A. [2014] ewcop 920 and Re M. (A Child) (Refusal of ­Medical Treatment) [1999] 2 flr 1097.

Conclusion

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439

Respecting Families and Supporting Autonomy

It is crucial of course that families are respected in all aspects of proceedings, and that whilst we insist on the utmost respect for children’s wishes, we ­simultaneously accept a relational understanding of autonomy. Choudhry and Herring state that “[f]amily life is marked by give and take, sacrifice and mutual support, rather than individualist concepts of rights.”17 The child’s context – their family, their values – all must be part of how professionals approach children’s autonomy in proceedings. Children have the same desire for acceptance and respect, the same desire to understand, to be involved, and to have input into decisions about themselves and their families. Children have been excluded from best interest decision-making because of the assumption that the adult is the measure of all human beings, although when held to scrutiny this assumption of the rational, sensible adult does not stand up to scrutiny.18 The approach to autonomy for adults is increasingly recognised as being ­overly-deferent, in that it may leave vulnerable persons at risk. For this reason it is justifiable to focus on the potential need for paternalism for children, rather than insisting on the prioritisation of ‘competence’ or ‘capacity’ – flawed, contentious and divisive concepts – in the way that occurs in medical law. 5

Reframing Systems for Best Interest Proceedings

Many children will require ‘autonomy support’ in the context of best interest proceedings – non-controlling, impartial information and support to form and/ or express views and decisions about a best interest matter. It has been outlined that explicit research is needed to determine how autonomy support, proven to elicit such positive outcomes in education and other areas, can be adapted to provide support to children in the context of best interest proceedings. The techniques of accepting children’s views, providing them with structure, helping them with problem-solving – all will undoubtedly be of enormous assistance to many children. Autonomy support is a clear solution to many of the challenges faced in the matter of how to involve children in best interest 17 18

Shazia Choudhry and Jonathan Herring, European Human Rights and Family Law (Hart, 2010), at 134. Cordero Arce asks, “why should a child have to be the same as an adult to get what the adult gets simply because of being one?” Matias Cordero Arce, “Maturing Children’s Rights Theory” 23 The International Journal of Children’s Rights 283 (2015), at 313; paraphrasing Catharine Mackinnon, “Difference and Dominance: On Sex Discrimination” in Katherine Bartlett and Rosanne Kennedy, eds, Feminist Legal Theory (Westview Press, 1991), at 85.

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­proceedings. Though many professionals will already be working in an autonomy supportive way with children, it should be made an explicit part of the experience of children about whom best interest decisions are being made. All professionals working with children in this context should be trained in children’s rights, autonomy and development. There is extensive preoccupation with the “age and maturity” of children – a phrase from crc Article 12 – when it comes to the extent of involvement which children might have in proceedings. Yet it is the abilities of adults to support children which will be most important to how and whether children are involved, and whether a presumption in favour of their wishes is possible. Legislative change is needed in order to recognise equality for children, and particularly for a presumption in favour of their wishes in best interest decisions. Yet even without this, practitioners can still take it upon themselves to engage the philosophy of the children’s autonomy principle in practice. ­Social workers, children’s guardians, psychologists and others can implement ‘autonomy support’ techniques. Judges have much discretion as to whether to hear children, and even more when ‘weighing’ children’s wishes – judges can legitimately prioritise those wishes when deciding whether to involve children in proceedings, and when determining best interest outcomes. The major benefit of discretion is that judges can interpret crc Article 12 to mean that children’s autonomy must be upheld unless there are very compelling reasons not to do so. There is a significant role to be played, therefore, through progressive judging.19 Children’s involvement in proceedings is not generally seen as a right at present. If children’s involvement in proceedings concerning them is framed more as a due process right, rather than some discretionary facility only for particular cases, then it is more likely that the structures necessary for hearing children will be put in place. In a climate of legal aid cuts it may seem unlikely to secure greater resources for children’s involvement. Nevertheless it should be argued strongly that there will likely be economic benefits to adequate support for children in proceedings about their best interests, as such support will likely also make for more e­ fficient proceedings. Prioritising children’s autonomy may ultimately lead to disputes being resolved more quickly as parents with entrenched positions are more likely to be forced to prioritise their child’s experience rather than their own. Systems often seem difficult, perhaps impossible, to influence and change on a broad level. Yet there is much to be done in the immediate future in order 19

See Helen Stalford, Kathryn Hollingsworth and Stephen Gilmore, Children’s Rights Judgments: From Academic Vision to New Practice (Hart, forthcoming 2017).

Conclusion

441

to embed respect for children’s autonomy in best interest proceedings. Inspiration can be sought from other areas where autonomy support is more evolved, for example mental health, in order to apply it to services involving children.20 There are some innovative practices, such as those in the tale project,21 which are at present being used in order to progress children’s involvement in proceedings, and practitioners can draw upon these. Advocates should take cases under Article 6 and/or Article 8 of the European Convention of Human Rights to argue that support is necessary at a structural level in order for children to have any possibility of enjoying due process rights, particularly in private law proceedings in which children are regularly left unheard. The question of how legal systems can or should be fundamentally changed to facilitate children’s autonomy should be researched; in particular the matter of how greater levels of shared decision-making (between adults and children) could be achieved in children’s cases.22 There is a perception that the legal system is an objective forum in which the state facilitates the dispassionate resolution of the disputes of its citizens. However there must be an acceptance that the legal system creates as well as reflects meanings and societal attitudes. Courts create perceptions of children and understandings of childhood. The ways in which courts treat children’s autonomy will affect how this is understood in society more broadly. A focus on autonomy when best interest decisions are being made about children will ensure that children are genuinely held as the most important individuals in proceedings. It will lend transparency and consistency to the approach to paternalism for children. It will ensure a less discriminatory attitude to children in proceedings, as children should only be treated differently when it is genuinely necessary. But to achieve this, adults must try to accept that the adult agenda may sometimes be flawed,23 and there must be a willingness to consider alternative possibilities for our approaches to children, as challenging as this may be. 20

21 22 23

Cora Bartelink, Tom van Yperen and Ingrid ten Berge, “Deciding on Child Maltreatment: A Literature Review on Methods that Improve Decision-Making” 49 Child Abuse and Neglect 142 (2015). See the tale project website at http://www.project-tale.org/ (last accessed 23 Mar. 2017). Gary Melton, “Parents and Children: Legal Reform to Facilitate Children’s Participation” 54 American Psychologist 935 (1999). Alison McLeod, “Whose Agenda? Issues of Power and Relationship when Listening to Looked-After Young People” 12 Child and Family Social Work 278 (2007).

Index Access 1n, 319, 324, 328, 335, 339 Accessing courts 59n, 263, 264, 265, 431 Access rights 109, 232n Access to information 60, 221–222, 255, 273 Access to justice 16, 29, 29n, 66, 68, 69, 195–199, 208, 217, 262, 396 Access to legal representatives (see also: children’s legal representation) 235, 245n Access to support 229 Adolescence 5n, 17, 20n, 92, 93, 145n, 176n, 183–184, 185, 187, 188, 243, 269, 270, 288, 318, 320, 324, 411n Adult/child dichotomy 12, 32, 34, 77, 97, 145, 155, 166, 185, 190, 192, 292, 393, 398, 417 Africa African Charter on Human and People’s Rights 59n African Charter on the Rights and Welfare of the Child 20 South Africa 229, 405, 407 South African Constitution 229n Age Age at which children will be heard 212, 213, 215, 379 Age at which children’s autonomy principle should be applied 379 Age limit 31, 46, 47, 48n, 143, 144, 162, 164, 212, 213, 265, 321, 379 Age of criminal responsibility 143, 301 Age of majority 18, 22, 31, 35, 122, 143, 144, 162, 183, 437 Age of reason 43, 46, 182 Chronological age 178n, 299, 352 Minimum ages 48, 116, 125n, 142–145, 186, 379, 380 America American Bar Association (aba) Model Act Governing the Representation of ­Children in Abuse, Neglect and Dependency ­Proceedings 247, 401 American Convention on Human Rights 58n American Psychological Association 182n

Inter-American Court of Human Rights 52n, 95n Asylum 82n, 83, 107n Attitude barrier 410 Australia 92n, 169, 196n, 223, 236n, 249, 275, 285, 293, 309n, 321, 327, 343, 367 Family Law Act 1975 15n, 80n, 397n Children and Young People Act 2008 367 Autonomy As a ‘liberal ideal’ 9, 16, 21, 71, 97, 115–191, 434 Autonomy deficit 93 Autonomy denial 12, 33, 45, 116, 142, 145, 161, 191, 312, 341, 352, 356n, 370, 380, 389, 437 Autonomy in medical law 115–118, 121–122, 146–171, 352, 354–355, 390, 391, 438 Autonomy repression 355–359 Autonomy support 10, 11, 31, 51n, 52, 53, 68n, 69, 131, 135–138, 174, 175, 190, 333, 374, 375, 392, 393–433, 435, 438–439, 440 Professionals 69, 394, 402, 415–417, 423, 432, 440 Techniques 398, 418, 432, 440 Legal autonomy 2, 9, 22, 31, 45, 118, 123, 124–126, 138, 145, 185 Option least intrusive to autonomy 172, 174 Outcome autonomy 10, 17, 30, 68, 69, 115, 282, 349, 387, 398, 434 Personal autonomy 8, 9, 21, 117, 119, 121, 124, 155, 157, 391 Primacy of autonomy 161 Process autonomy 10, 11, 17, 30, 68, 69, 115, 193, 387, 398, 434 Process of the children’s autonomy principle 387–390 Relational autonomy 4, 129–131, 190, 406, 439 Best interests ‘Balance sheet’ approach 100–102, 113 Best interest decisions 7, 12, 13n, 15, 16, 23–25, 26, 29, 33, 49, 60, 72, 79, 92, 98,

444 Best interests (cont.) 100–102, 105, 111, 114, 115, 116, 117, 122, 129, 132, 141, 142, 146, 147, 162, 163n, 174, 175, 200, 220, 223, 225, 245, 246, 262, 281, 282, 288, 291, 303, 306, 317, 319, 323, 324, 327, 330, 332, 346, 347, 348, 354, 355–359, 363, 369, 378, 379, 384, 394, 395, 396, 403, 411, 431, 432, 437, 440, 441 Best interest principle 7, 8, 12, 13, 14, 24n, 25n, 26, 42, 43, 53, 62n, 68, 70, 71–114, 138, 170, 191, 200, 219, 338, 355, 362, 381, 383, 389, 399, 437–438 Best interest proceedings (see also: right to testify in best interest proceedings) 1–8, 9,  10, 14, 15, 16, 19, 21, 23, 25–30, 31, 33, 35, 36, 37, 41, 44, 45, 49, 56, 58, 60, 61, 62, 66, 67, 68, 70, 72, 79, 86, 90, 91, 93, 96, 97, 102, 112, 113, 194–207, 439–441 Best interest outcomes 400, 440 Best medical interests 95 Child’s best interest 6, 72 Child’s best interests 94, 98, 105, 106, 108, 246, 250, 255, 275, 293n, 328, 387, 397 As a primary consideration 23n, 43, 69, 72, 81n, 82, 83, 91n, 103, 104, 105, 107, 108, 113 As the primary consideration 12, 13n, 17, 23, 30, 68, 69, 72, 81n, 83, 91n, 102, 103, 104, 105, 106, 107, 108, 111, 112, 113, 292n, 387, 393, 434 Dichotomy between ‘best interests’ and ‘wishes’ 429 Factors to consider 84, 98–100, 107–108, 323, 397 Long-term best interests 293, 327 Rights-based approach 112 Under Criminal Law 7, 72, 81n, 91n, 103, 105–108, 113 Under Immigration Law 7, 72, 81n, 91n, 103, 105–108, 113 Bioethics 130, 131 cafcass 61n, 210, 221, 241, 242, 256, 260n, 274, 275, 401n, 402, 409n Canada 163, 196n, 231n, 234, 343 Views of the Child Report 234n, 238, 425 Capacity Adults lacking capacity 64, 142, 160

Index Capacity assessment 149–155, 164, 172n, 300n Beauchamp and Childress’s seven levels of incapacity 151 MacArthur Competence Assessment Tool for Treatment (MacCAT-T) 152, 172 MacArthur Competence Assessment Tool for Clinical Research (MacCAT-CR) 172 Capacity to consent to medical treatment 9, 148n, 150, 154, 162, 167, 168,  171–175, 190, 300, 354, 379 Capacity/incapacity dichotomy 91, 93, 155, 160, 291 Children’s capacity to testify 302 Evolving capacities 5n, 143, 165, 177, 420n Legal capacity 5, 16, 22n, 24, 63, 65, 84, 118n, 126, 139, 143, 148, 149, 163n, 378 Mental capacity 15, 29, 63, 64, 66, 67, 92, 116, 123, 125, 126, 139, 140, 141, 146, 147, 148n, 150, 172n, 182, 290, 306n, 367n, 416 Mental Capacity Act 2005 66, 126n, 148n, 151, 154, 160, 163n, 164n, 166, 171, 173n, 174 Section 1(3) 151n, 420n Section 2 147n, 156n Section 3 151n, 300n Child abuse 239, 249, 343, 372, 382 Child arrangement order 1n, 222n, 330, 339 Child protection 3, 7, 11n, 13, 14, 18, 60, 85, 89, 177, 178, 196, 200, 202, 206, 209, 210, 217, 218, 220, 223, 229n, 231, 232n, 247, 251, 262, 266, 267, 275, 276, 286, 287, 299, 310n, 311, 312, 321, 323, 332, 342n, 365, 366, 368, 369, 370, 373, 375, 382, 383, 388, 389, 391, 401, 411, 414 Child protection hearings 203, 369 Child protection proceedings 60, 61, 62, 83, 195, 196n, 197, 231, 232, 234, 239n, 240, 245, 246, 248, 253, 272, 273, 286, 296, 423 Child protection representatives 217, 245, 246 ‘Risk sensible’ vs ‘risk adverse’ approach 370 Child removal 372

Index Child-friendly Environment 51n, 216, 272, 394n Information 221 Justice 20, 52n, 216, 295, 414n Proceedings 51, 69, 193, 216, 221, 279 Processes 14, 69 Support 51 Childhood ‘Liberation’ of children 75, 76 Human beings v human becomings 76 New sociology of childhood 76 Children Act 1989 24, 80, 100n, 222n, 330 Section 1 15n, 80n, 397n Section 1(3) 98n, 292n, 293n, 323 Section 2 84n Section 7 report 236n Section 8 orders 263 Section 31 Section 31(2) 366n Section 31(10) 367n Section 41 49n, 240n, 273n Children as rights-holders 50, 51, 69, 88, 89, 91, 122, 208, 211, 215, 234, 252 Children in care 39, 41–42, 137, 262, 264, 272, 285, 286, 287, 334, 335, 346, 358, 359, 369n, 412, 415 Children’s Abilities (see also: decision-making abilities) 20, 23, 48, 63n, 143, 149, 215, 249,  290, 295, 417, 438 Age and maturity 5, 29, 45, 110, 163, 176, 177, 200n, 204, 212n, 214, 215, 288, 289, 290, 294, 296, 299, 314, 326n, 354, 378, 379, 380, 392, 396, 440 Agency 28, 76, 143 Attendance at proceedings 265–273 Capacity (see also: capacity to consent to medical treatment) 117, 151, 170, 171–175 Capacities 121, 144, 179, 185 Capability to form views 47, 48, 49, 180, 212n, 215, 290 Competence 15n, 26, 29, 45, 58, 63, 116, 135, 147, 148, 164, 169, 188n, 241n, 289n, 293, 295, 296, 299, 300, 301, 302, 317, 318, 327, 346, 347, 350–392, 412, 414, 417, 438, 439 Gillick competence 91, 116, 117, 148n, 158, 161n, 162, 163n, 164, 165, 167–171, 176, 296, 300, 353, 354

445 Competence/capacity to stand trial 183, 301n Support for competence 419 Decision-making abilities 29, 33, 67, 117, 118, 139, 149, 155, 164, 172, 173, 174, 175–187, 188, 189, 212, 289, 322, 378, 410, 416 Determinative say 16, 28, 36, 37, 39–42, 285, 303, 345, 356, 392 Early development 86 Freedom rights 22, 27, 78, 79n Involvement in proceedings (see also: exclusion from proceedings) 6, 10,  17–20, 42, 46n, 47, 52, 53, 68, 112, 193, 199n, 201, 203, 207, 211, 216, 217, 225, 228, 232, 234, 251, 272, 277, 278, 279, 282, 375, 393, 394, 395, 396, 402, 403, 404, 405–407, 408, 409, 413, 423, 426, 428, 429, 436, 440, 441 Legal representation 6, 29, 35, 60n, 61, 69n, 176, 197, 200, 211, 223, 226, 229, 232, 235, 240, 242, 244–252, 263, 264, 273, 275, 402, 405, 427, 432 Maturity (see also: age and maturity) 22, 29n, 177, 182, 185, 255, 271, 288n, 290, 293, 294–302, 307, 311, 314, 317, 327, 346, 350, 352, 378, 391 Needs 24n, 51, 52, 90, 96, 98, 99, 107n, 135, 136, 203, 206, 216, 241, 243, 266, 268, 269, 272, 292n, 323, 367, 394, 395, 397n, 402, 413, 429, 430 Online freedoms 79n Participation 26, 27, 28n, 37, 42, 46, 54, 90, 107, 149, 194, 196, 197n, 206, 207, 218n, 284n, 287, 317, 320, 412, 422, 430n, 438 Perceptions 76, 217, 224 Preferences 8, 11, 17, 22, 23, 32, 35, 40, 54, 55, 58, 92, 93, 96, 97, 112, 126, 128, 137, 193, 236, 243, 282, 288, 306, 334, 349, 351, 373, 382, 385, 387 Private choices 79 Right to equality 69, 88, 396–400, 432, 436 Right to information 221–225, 405 Right to testify in best interest proceedings 275–277 Self-determination 26, 135, 418–421

446 Children’s (cont.) Understanding 149n, 164, 167, 173, 176, 177, 179, 183, 224, 241, 271, 293, 294n, 296n, 297, 323, 350, 353n, 354, 394, 410, 422 Upbringing (decisions regarding) 18, 19n, 23, 24, 60, 100, 105, 263, 264, 355, 390, 397n Voice 26, 28, 36, 149, 201, 231, 241, 242, 252, 276, 279, 372 Welfare 7n, 24, 42, 72, 80, 84n, 85, 86, 97, 98, 100, 106, 111, 206, 211, 232n, 239n, 244, 271, 279, 291, 294n, 311, 315, 323, 324, 337, 356, 386, 387, 397n Children’s Rights training 216–220, 402, 416, 416 Childwatch International Research ­Network 196, 197 Cognitive impairment 23n, 24, 32, 63–67, 79, 93, 120, 129, 147, 172, 173n, 215, 291, 295, 378, 379, 383n, 397, 398n, 404, 420, 433, 434, 437 Communication 42, 218n, 219, 225, 236, 243, 253, 412, 414, 415–417, 421 Intergenerational communication gaps 432 Consent Children’s consent to medical treatment 7, 9, 22, 29, 121, 125n, 126, 143, 148n,  150, 162–165, 167, 168, 171, 173, 182, 190, 291n, 300, 353, 354, 379 Children’s refusal to consent to medical treatment 121, 122, 144, 168n, 281, 356n,  438 Consent for sex 126, 143, 145 Contact Contact arrangements 1, 18, 25, 48, 56, 262, 285, 357, 384 Contact at all costs (see: presumption of contact) 11, 283, 336–342, 345, 437 Contact dispute 233n, 388, 393 Contact orders 7n, 306, 323, 330, 331, 344 Contact visits 11, 13, 99, 331, 332, 344, 348, 358, 370 Forced contact 40, 309, 315, 319, 328, 358, 359n Limited contact 40, 335 Supervised contact 383 Cost/benefit analysis 424

Index Council of Europe Guidelines on ChildFriendly Justice 20, 52n, 216n, 217n Custody 1, 81, 95, 99, 231, 264, 364n Custody evaluation 220, 236 Custody experts 288n, 340, 389 Custody of Infants Act 1839 74n, 85n Custody rights 109, 270 Decision-making 8, 16, 25, 31, 33, 37, 80, 82, 101, 106, 116, 126, 130, 147, 154, 190, 257, 286, 287, 290, 294, 304, 307, 325, 326, 348, 355, 356, 371, 376, 397, 410n, 412, 420 Assistance (or support) with decisionmaking 65, 66, 401, 402, 416, 421, 433, 434 Children’s decision-making 18n, 22, 26, 27, 37, 67, 78, 117, 118, 143, 164, 173, 174, 175–189, 214, 219, 248n, 249, 280, 284, 301, 378, 396, 407, 410, 413, 439 Decision-making abilities 29, 33, 34, 67, 139, 148, 149, 150, 152, 153, 154, 155, 163, 172, 289n, 322 Joint (or shared) decision-making 42, 411, 441 Parental decision-making 88, 334, 354 Substitute decision-making 23, 79, 420n Dignity 2, 9, 11, 37, 80, 86, 89, 119, 120n, 123, 130, 131, 139, 140, 189, 190, 208, 216, 278 Disability Disability groups 149 People with disability 63, 65, 66, 67, 420 un Convention on the Rights of Persons with Disabilities 16n, 20, 23n, 65, 66, 67,  118n, 147n, 149, 397, 420 Doli incapax 301 Domestic violence 141, 261n, 263, 284n, 340, 342, 343, 344n, 345, 362n, 377, 383n Violent parents 99, 214, 283, 338, 342–345, 346, 348, 365, 383 Due process 2, 32, 65n, 194, 261–279, 435 Due process rights (see also: fair trial rights) 26, 44, 52, 55, 58–62, 65, 67, 75n,  79, 192, 193, 194, 197, 202, 233, 234, 251, 345, 398n, 426, 427, 432, 434, 440, 441 Due weight for children’s views 5, 6, 21, 28, 45, 55–58, 177, 352, 378, 434 Giving children’s views no weight 57, 308, 313–315, 317

447

Index ‘Weighing’ children’s views/wishes 8, 10, 16, 22, 29, 101, 102, 106, 117, 166n, 179, 219, 220, 280–349, 350, 353, 354, 375, 389, 399, 431n, 432, 435, 440 Equality 63, 66, 88, 131n, 142, 338n, 396–400, 432, 440 Equality before the law 66, 69, 436 Equality deficit 67 Equality of arms 59n, 61, 233 Equality of opportunity 333n Ethic of care 131 eu Charter of Fundamental Rights 20, 59n European Convention on Human Rights (echr) 59, 84, 426 Article 6 61, 210, 441 Article 8 210, 441 Exclusion from proceedings 36, 53, 67, 270, 356n Fair trial rights (see also: right to a fair hearing) 58–62, 79, 426, 427, 431 Right to appeal decisions 59, 61 Right to counsel or other representation 60 Right to give evidence 275–277 Right to have party status 29, 43, 44, 60, 61, 68, 69, 208, 211, 231, 232, 240, 244, 246, 249, 251, 252, 262, 273–275, 279, 285n, 427 Right to initiate proceedings 59, 198, 222, 261, 264, 265 Family Birth parents/families 85, 86, 96, 97n, 265, 334, 335, 346, 369n Carers 81n, 86, 263, 357, 369 De facto parents 86 Family court 54n, 207, 218, 257, 266, 277n, 344, 384n, 390, 409 Family disputes 279, 395 Family relationships 36, 40, 101, 160, 406 Non-resident parent 14, 18, 283, 308, 331, 332, 336, 337, 340, 341, 342, 348, 366, 368, 391 Nuclear family 81 Primary carer 85n, 99, 110, 205, 283, 328, 330n, 337, 340, 343, 360, 361, 362n, 388, 389 Siblings 45, 212, 262, 381, 382, 383, 385

Finland 48, 62, 92n, 253n, 320, 341, 368n, 407, 414 Gatekeeper 168n, 233, 254 Guardians Ad litem 194, 197, 198, 199, 200, 202, 209, 212, 228, 229, 231, 233, 238, 239, 240, 243, 244, 246, 247, 248, 249, 260, 262, 264, 270, 274, 278, 335, 375, 401, 421 Appointment of guardians 200, 210, 231, 232, 233, 239n, 244, 264 Hague Convention on International Child ­Abduction 13n, 20n, 23n, 104, 109–112 Harm Future harm 10, 39, 368, 371, 392 Significant harm 10, 11, 14, 17, 30, 39, 42, 53, 55, 68, 69, 70, 72, 102, 115, 117, 124, 159, 171, 174, 193, 207, 261, 282, 349, 350–392, 393, 398n, 434, 438 Physical harm 39, 357, 362 Potential harm 14, 347, 357, 391 Psychological harm 357, 362 Risk of harm 98, 109, 110, 114, 277, 292n, 354, 367, 372, 395, 397n Hearing children At home 12, 26, 134 At school 12, 26, 134 In the political arena 1, 26 In proceedings concerning them 44, 45, 193 Process of hearing children 6, 11, 14, 192 Immigration 13, 24, 72, 81, 83, 91, 103, 105–108, 131 India 196n Indian Child Welfare Act 1978 86n International Covenant on Civil and Political Rights (iccpr) 59 Ireland 48, 86, 196n, 209, 231, 233, 238, 240, 241, 244, 268, 303, 315n, 322, 325, 339, 343, 367 Child Care Act 1991 15n, 49n, 80n, 264n, 397n Judicial Separation and Family Law Reform Act 1989 216n Israel 196n, 202, 206, 207, 225, 234, 254, 256, 257, 258, 278, 284n, 286, 287, 394n, 406

448 Judicial Decision-making 82, 100, 284n, 326 Interviews 197n, 203, 253, 254, 255, 258–262, Meeting 233, 253, 254–258, 259, 260, 287 Parent 329, 333 Legal Aid 193, 197, 208, 229, 230, 231, 233n, 245n, 246, 253, 264, 273, 395n, 423, 424, 425, 426, 430, 431, 433, 440 Capacity 5, 16, 22n, 24, 63, 65, 84, 118n, 126, 139, 143, 148, 149, 163n, 378 Coercion 9, 33, 282, 357 Incapacity 22, 33, 66, 75, 122, 151, 156, 166, 169, 173n, 248, 300n Personhood 29, 120n, 131, 406 Representation (see: children’s legal representation) Representative 197, 216n, 223, 226, 229, 232, 233, 235, 242, 244–252, 264, 275, 300, 323, 402, 405n Standing 16, 29, 71, 193n, 194, 265, 279, 289 Legal systems Adversarial 61, 69n, 202, 245, 246, 252, 362, 395, 411, 427, 433 Inquisitorial 428 Liberal Democracy 2, 16, 29, 30, 96, 97, 115, 118–120, 138, 189, 333 Ideal 9, 16, 21, 29, 71, 115–191, 333 Legalism 21 Paternalism 6, 90n Liberty 15, 91, 364 Deprivation of liberty 65n, 165n, 300, 301 John Stuart Mill 17n, 138 Manipulation 130, 318, 392, 435 Of children 132, 142, 172, 302, 307, 308, 311, 340n, 351, 370, 374–377, 380, 389, 391, 392, 421 Mediation 168, 205, 284, 429, 430, 431, 433 Mental health 36, 172n, 189, 308, 348, 357n, 361, 378, 380, 411, 441 New Zealand 98, 130, 164n, 196n, 202, 231, 244, 249, 250, 251, 254, 256, 258, 259, 278, 284, 307, 401, 402, 432

Index Care of Children Act 2004 16n, 80n, 98n, 250n, 397n Nigeria 200 Child Rights Act 200 Non-discrimination 31, 81n Non-verbal Children 47, 48, 49, 50, 69, 215, 216, 236, 273 Communication 48, 49, 215, 273 Norway 61, 92n, 107n, 201, 204, 205, 213, 214, 218, 220, 265, 266, 272, 273, 279, 286, 287, 297, 299, 303, 305, 310, 319, 321, 335, 343, 344, 357n, 367n, 379 Parental Alienation 249, 308, 309, 328 Authority 73, 366–368 Control 75, 366n Estrangement 309n Power 84, 88, 143, 345 Presumption 363–366 Rights 84, 85n, 255n, 268, 363n Responsibility 20, 84, 111n, 245n Paternalism 10, 25, 32–36, 42, 66, 72, 79, 87, 89, 90, 91, 93, 103, 112, 121, 132, 141n, 142, 160, 171, 189, 190, 191, 192, 248, 282, 295, 332, 341, 353, 370, 390, 413, 437, 439 Presumption Against children giving evidence 54n, 277n In favour of capacity 144, 147, 163, 171, 172, 173, 174 In favour of children’s wishes 117, 145, 171, 207, 321, 345, 371, 377, 378, 379, 381, 383, 384, 385 In favour of return 13n, 23n, 104n, 110, 112, 205, 292n, 362 In favour of the wishes of adults who lack capacity 321n Of contact 96, 100, 283, 327, 343, 345 On mental capacity 15, 66, 126, 140 That parents will act in their children’s best interests (see: parental presumption) Psychology Child development 52, 177, 178, 179n, 182, 226, 239, 243, 244, 402 Developmental psychology 47n, 75, 118, 175–188, 295, 302, 417 Piaget’s ‘stage theory’ 179, 180, 182, 183

449

Index Neuropsychology 133 Psychological needs 134, 135, 394 Rationality 120, 128, 139, 140, 144, 203, 297n, 300, 303, 307, 311, 327, 347, 352 Irrational 118, 120, 122, 128, 155–159, 161, 178, 181, 190, 291n, 294n, 338, 347 Rational 21, 29, 118, 127, 128, 129, 138–140, 141, 151, 154, 178, 183, 188, 189, 203, 260, 293, 297, 304–306, 347, 350, 391, 439 Representing Children Worldwide 195, 197, 198, 199n, 200n, 201n, 212n, 213n, 217n, 229n, 321 Residence 1, 10, 18, 25n, 48, 103, 106, 107, 108, 109, 262, 280n, 285, 294n, 315n, 328, 329n, 331, 340, 359n, 361n, 362, 370, 384, 408, 415 Resources 36, 51, 193, 198, 202, 210, 211, 225, 229–234, 240, 263, 269, 278, 289, 304, 380–385, 389, 396, 403, 413, 423–427, 440 Right to a fair hearing (see also: fair trial rights) 58n, 59 Scotland 196n, 203, 204, 205, 206, 214, 231, 269, 279, 284n, 286n, 295n, 299, 303, 304, 307, 310, 328, 343, 359n, 407, 408, 421, 429n Age of Legal Capacity Act 1991 163n, Children’s Hearings (Scotland) Act 2011  206n, 218n, 226n Children (Scotland) Act 1995 16n, 80n, 204n, 397n Scottish Children’s Hearings 41, 199n, 206, 218, 219n, 224, 225, 226, 227, 239, 261, 267, 268n, 269, 284, 285, 409, 428 Self-determination theory 134–135, 394, 419 Social report 49, 50, 69, 205n, 211, 215, 230, 233, 235–238, 239, 251, 252, 325 Social worker 12, 42, 96, 126, 140, 177, 179, 202, 207, 214, 217, 225, 226, 227, 233, 236, 238–244, 276, 278, 286, 288, 311, 326n, 332, 359, 375, 383, 386, 398, 400n, 402, 406n, 411, 414, 416, 424n, 432, 440 Sweden 61n, 92n, 107n, 209, 217, 232, 246, 320, 368n tale project 426, 441

Tunisia 200, 201, 217, 265 Child Protection Code 200 un Committee on the Rights of the Child General Comment on Article 3 60n General Comment No. 5 5n, 81n General Comment No. 12 46, 47n, 48n, 49n, 50n, 51n, 52n, 54, 57n, 60n, 136n, 193n, 195n, 212n, 213n, 215n, 216n, 221n, 223n, 236n, 253n, 275n, 276–277, 289, 290, 295, 313n, 394n, 420n General Comment No. 14 49n, 82, 94n, 103, 105, 239n, 245, 273n General Comment No. 20 21n, 30n, 48n, 93n un Convention on the Rights of the Child Article 3 23n, 43, 44, 45, 80n, 82, 103 Article 5 5n, 84n, 143, 177, 420n Article 12 1, 3, 4n, 5, 6, 8, 9, 10, 12, 14, 15–70, 73, 78, 79, 87, 93, 102n, 177, 192, 193n, 199, 201, 209, 212, 216, 219, 233, 238, 273, 276, 277, 279, 280, 281, 288, 289, 294, 295, 299, 313, 317, 318, 345, 346, 347, 348, 352, 393, 394, 396, 399, 405, 416, 431, 434, 436, 438, 440 Article 37 65n Article 40 65n General principles 81, 199 Ideal Article 12 68–70, 107n, 193, 208, 211, 215, 216, 221, 226, 234, 252, 265, 273, 282, 394, 396n, 397, 398n, 402, 407, 436 Optional protocols 68, 436 Travaux préparatoires 43n, 44n, 46n, 47n, 56n United States Child Abuse Prevention and Treatment Act (capta) 1974 239n, 247n, 367n, 401n Vulnerability 377–380 Children’s vulnerability 71, 124, 140–142, 143, 353, 410 Vulnerable adults 8, 13n, 23, 64, 132, 150, 159–161 Vulnerable individual 141 Safeguarding Vulnerable Groups Act 2006 64n, 159n Welfare checklist 323