The Voice of the Child in Legal Proceedings

PILA/PILS ConferenceFri 11th November 2011

Kathryn Stevenson Head of Legal Services (CLC)

The work of the Centre is informed by the articles of the United Nations Convention on the Rights of the Child with

specific reference to:

Article 2Article 2 Non-DiscriminationNon-Discrimination

Article 3Article 3 Best Interests of the ChildBest Interests of the Child

Article 12Article 12 The Child’s Opinion The Child’s Opinion

Promote awareness among children of their rights

Encourage the use of the law to promote children’s rights

Increase public understanding of children’s rights

Advocate for child friendly legislation Involve children in the development of the

CentreMake a reality of children’s rights

Education and training Advice and information on children’s legal rights Research on and monitoring of children’s rights Commenting on policy and legislation Strategic Casework Service Third Party Interventions Facilitating the voices of young people Involvement in inter agency work e.g. COAC , Mental

Health Review, DHSS PS Steering Groups

Children and Access to Justice Quantifying unmet legal needs Young people’s perception of the law Lack of knowledge of rights and legal entitlements Lack of awareness of legal processes and redress Susceptibility to ‘clusters’ of legal problems which

can have a cascading effect on their lives Need for publically funded education Need for child friendly and accessible legal

services Specialist skills based approach to working with

children

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Status of the UNCRC Not currently binding in Northern Ireland Courts Used as an ‘interpretative tool’ when examining

compliance with ECHR rights Smith v The Sec of State for Work and Pensions

[2006] UKHL 35 – domestic legislation has to be construed so far as possible so as to comply with international treaty obligations

Re E [2008] UKHL 66 – UNCRC should be properly be taken into account by the State in determining it’s actions

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Article 12 of the UNCRC

State 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.

For this purpose, the child shall in particular be provided with the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly or through a representative or appropriate body, in a manner consistent with the procedural rules of national law.

UN Committee’s General Comment No 12 (2009) – The right of the child to be heard

Article 12 ensures the right to be heard to every child ‘capable of forming his own views’

State obligation to assess the capacity of the child to form an autonomous opinion

Starting point is a presumption of capacity No age limit on the right to be heard –

children’s understanding is not uniformly linked to their biological age

Assessment of a child’s level of understanding is on a case-by-case basis

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Participation of children in legal proceedings Sahin v Germany; Somerfeld v Germany - right

to procedural fairness under Arts 6 & 8 ECHR Mabon v Mabon [2005] EWCA Civ 634 – separate

representation granted in residence order proceedings on the basis of expert opinion & Art 12 UNCRC

RE D (A Child)(Abduction: Foreign Custody Rights) (2006) UKHL 51 – Baroness Hale – “Those who do listen to children understand that they often have a point of view which is quite distinct from the person looking after them. They are quite capable of being moral actors in their own right”

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Participation of children in legal proceedings Re W (2010) UKSC 12 – Consideration of Art 6 ECHR in

the context of child witnesses – There is a need to strike a balance between determining the truth and the damage that it may do to this or any other child.

ZH v Secretary of State for the Home Department [2011] UKSC 4 – Immigration authorities must be prepared at least to consider hearing directly from a child – “Children can sometimes surprise one”

E(Voice of the Child)[2005] NI Fam 12 – 12 year old child separately represented by Official Solicitor - Residence Order granted in accordance with her wishes. – Article 12 is “one “important yardstick against which the family justice system in Northern Ireland must be evaluated”.

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Mechanisms to ascertain views of the child Expert reports Guardian Ad Litem Court Children’s Officer Oral testimony (having due regard to child’s

welfare) Written statement by child Meeting with Judge in Chambers Separate representation DONA (a pseudonym)(No.7)(Application to

discharge care order) [2011] NI Fam 8

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Committee on the Rights of the Child – Day of General Discussion on the Right of the Child to be Heard (29/09/06) Key recommendations: All children involved in judicial and administrative

proceedings must be informed in a child friendly manner about their right to be heard

Mandatory training should be provided on the implications of Article 12 of the UNCRC

Judges and other decision makers should as a rule, explicitly state and explain the outcome of proceedings, especially if the views of the child could not be accommodated

States Parties establish specialised legal aid support systems in order to provide children involved in administrative and judicial proceedings with qualified support and assistance.

The Committee urges States Parties to examine all existing laws and regulations with a view to ensuring that Article 12 is adequately integrated.

Education Case Law The NI Courts have been willing to recognise the

child as an autonomous rights holder in challenging procedural fairness in school suspensions and in determining suitable educational provision for children with special educational needs:

M (a Minor)Re application for Judicial Review [2004] NICA 34 – School suspension procedurally flawed

JN(a Minor) v SEELB [2005] NIQB - Failure to give individualised consideration to the provision of funding for home based learning for a child with Autism –Child’s Art 2 Protocol rights were engaged

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Lessons from Practice – Getting it Right? Carla’s Story Special Educational Needs and Disability

Tribunal proceedings Carla is 12 years of age and attends Grammar

School She has cerebral palsy and uses a wheelchair Dispute with ELB – provision of physiotherapy in

school and her need for physical activity throughout the day

How was the voice of the child heard in this case?

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Carla’s story in her own words

http://www.bbc.co.uk/northernireland/community/aac/appeals/childrens_law_centre.shtml

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FREE PHONE: 0808 808 5678FREE-POST: chalky, Bel3837, Belfast, BT15 1BR E-MAIL: chalky@childrenslawcentre.org

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