Our proposal is the Law Commission should look in the light of various family law reforms that
have taken place since we first signed up to the UNCRC, to see how our domestic law is
now measuring against the requirements put down by the obligations internationally.
Now the idea for the proposal came from research that Jan and myself have been doing
where we have been looking at the way children’s voices are – or quite often are not – heard,
particularly in out of court dispute resolution processes when parents separate. Now
we then realised that these concerns about the lack of children’s voice have also been
echoed in the in-court context as well, so in the reports that have been done by the private family
law working group and presented to the President of the Family Division, both the family solutions
group report ‘What About Me?’ which has focused on out of court dispute resolutions, and the
so-called ‘Harm’ report which is looking at how children’s voices, particularly in the context of
abuse that’s ongoing within families and whether children who wish to refuse contact with a parent
are actually heard, have been put forward as something that really does need to look at it.
So our focus today is there on private family law disputes and whether in this context,
facilitating the rights of children may have got left behind, partly in the push to try and
encourage out of court settlement between parents so that the focus has very much been switched
to the adults rather than on the children. This of course then raises the question of what this means
for our international obligations under the UNCRC and we suggest that this situation raises not only
issues of access to justice for children but also of consideration of the effects of substantive law
developments and whether in the light of that, the way that children’s rights can be overlooked
when other aspects of family law or family justice reform, need to be better embedded in our family
justice system to ensure that we do not end up in breach of our international obligations.
And who better than the Law Commission to take on this important challenge.
So what does Article 12 of the UNCRC say, first of all? So as you can see on the slide, and I’m sure
most of you will know, that it assures a 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. And what that
means in practice, how that’s been interpreted, is that children should be both informed,
consulted and where necessary, represented. Of course in our domestic law the Children Act 1989
is the main means through which UNCRC rights have been given and indeed, both the UNCRC and
the Children Act of 1989 were introduced in 1991 and it was rather assumed at the time,
some 30 years ago now of course, that this was an Act, a really well-regarded Act that has
in many ways stood the test of time and is still heralded as an important way in
which we co-defined child law, whether this does still protect particularly the Article 12 rights.
So if we go to the next slide we can see how perhaps there are some question marks being
raised on how well this is done. Now the Children Act of course focuses on children’s welfare;
there’s not a mention of children’s rights in the Act and it’s the paramountcy principle which gives
protection to children where their best interests must prevail and that is concerning the upbringing
of a child. But of course Section 1(1) only applies in court proceedings and whilst in
the checklist in Section 1(3) of the Children Act, the ascertainable wishes and feelings of the child
are listed as a factor. It’s not a priority factor and it’s just one of a whole range of
matters that have to be taken into account in deciding how to apply the welfare principle.
Now I think that we probably wouldn’t want to argue that Article 3 of the UNCRC
which does indicate that children’s welfare must be taken into account is well safeguarded by
Section 1(1), but I’m far less sure that Article 12 is met in this context. And if you think back
to the era when this 1989 Act was passed, even Lady Hale who of course as a Law Commissioner
then led the Children Act reform, admitted in her 2019 Scarman lecture that looking back,
although we were aware of the European Convention on Human Rights, it played a remarkably small part
in our thinking. I think this underlines that at that time, human rights was
not embedded in the DNA if you like of family law domestically and I think that’s particularly true,
and probably still true today, with regard to the position of children’s rights.
Now the other problem if you like with the Children Act is that that has itself been reformed
and Section 2A there is of course the very recent introduction of a statutory presumption
of the benefits of both parents’ involvement in a child’s life after parental separation.
You might think that that would therefore require some sort of check with the child,
that this contact with both parents in any child arrangement’s order,
is something that the child themselves welcomes. After all, they should be informed and they should
be consulted and if necessary represented under Article 12. That really is not the position. If
the matter goes to court and a Section 7 report is ordered then the children’s views do get to the
courtroom Even in court proceedings, although safeguarding checks do happen, it’s not always
true to say – in fact the Harm report says that it’s not often enough the case
that children’s views do actually reach the court. You combine that situation post-LASPO
which of course withdrew legal aid from private family law proceedings for child arrangements,
you combine that with the fact that most cases are being encouraged to be head out of course through
mediation or direct negotiation between the parents and children are not necessarily informed
or consulted at all about the arrangements. Indeed the research that Jan and I have done in relation
to the mapping paths to family justice research and later research where we’ve been speaking to
children directly, indicates that whilst they very much welcome to be involved, they were often not
home and parents often say ‘well, we didn’t tell the children until the night before or the week
before I moved out what the arrangements were going to be’. But that of course then questions
what effect that sort of a shock might have on children in those types of circumstances.
So in previous times, Section 41 of the Matrimonial Causes Act also
required the court, whenever parents got divorced, to have oversight of whether the
arrangements made for children were satisfactory. That no longer applies so we don’t have any way
to really make sure that even the Children Act welfare threshold is being met by the
arrangements that are being discussed between the parents. There’s just an assumption
that the autonomy, the private ordering, will work in children’s best interests. And whilst in
the majority of cases that will probably be the case, the fact that children do not have a voice
in any of this, in a matter that so directly affects their lives, I think really begs the
question of how well our law is serving children and whether we ought to think
about recasting either through the Children Act or otherwise, an emphasis on children’s rights.
So if you click through to the different quotes here,
the position in and out of court is I think encapsulated quite well by some
of the quotes here. So Sir James Munby, a former President of the Family Division,
talks in the top left hand corner there of how ‘by and large, children are completely invisible
in court’, which I think is a real indictment that despite their welfare being paramount,
they really don’t have a voice. Similarly the Harm report indicates that there’s a ‘lack of
consultation and children are muted in various ways with the pro-contact culture’ – introduced
by Section 2A of the Act – ‘means that children are only heard when they express a wish to
have contact’, not when they don’t wish to have contact. Helen Stalford and Katherine
Hollingsworth’ quote there really indicates how children are represented by ‘proxy, adult-filtered
accounts’ and is that good enough when they have rights under Article 12 of the UNCRC?
And as mentioned, our own research has found that ‘despite lip service being paid to the
importance of being child-focused in out of court processes, it was difficult to retain that focus’.
Now the quotes here are from a recent and ongoing project about child-inclusive
mediation and the good news is that we do have agreement, both between young people
and relationship experts, that if we were to reform the law to give children greater voice,
it would definitely serve the interests of children well in terms of their health and
wellbeing, and perhaps particularly their mental health. Jonny, a young person that we interviewed
in our project, said ‘it’s their family too, they should have a right to make the decisions
about how it’s going to move forward’, echoing the right to express their views in Article 12,
the right to be informed and consulted. And Kay Eagles, a relationship expert
really just talks of the benefits to young people of going down this route.
So whilst we didn’t try and get children – I mean these quotes typify our findings
amongst a wider pool of people and the vast majority of children, I think we only had
two children from the same family where a father had not listened at all to their view,
felt that child inclusive mediation had been pretty much a waste of time. But generally the
positives felt by children, just by being able to express their views, came through loud and clear.
It went far beyond the simple settling of the dispute at hand.
Children don’t categorise this in terms of their rights and they don’t really have any awareness
that they have any rights and this is clearly a well-kept adult secret. But on principle
and without its action, they felt children should have the right to be involved when they wished to.
So if we went down this route, what would we achieve? Well I think it would certainly
improve things for children and if you go beyond the period of separation, often things agreed are
set in stone and children have very limited ways of challenging the arrangements that the parents
have agreed. Under Section 10 of the Children Act you theoretically can apply for an order if
they get leave of the court but there are enormous practical barriers to doing this. So we suggest a
duty to consult on arrangements could be enshrined in the Children Act, whether arrangements
were being agreed in or out of court, and that would be a simple way of changing the dynamics.
The Harm report also indicates that if you hear from children this can actually lead to
the facilitation of agreements, so I think it could act to reduce conflict in that way
as well. It unpicks whether allegations made between the parents do or don’t have
merit from the child’s point of view. It would also help us meet our international obligations
where the UK does have to report on measures being undertaken to bring domestic legislation
in line with the UNCRC with the next report being due
I think it’s March next year. So this would be a great opportunity. Jan, could we have the slides.
So we think the Law Commission could scope this out, see how well current law protects
children’s welfare in child arrangements both in and out of court, and consider
whether we could amend the Children Act itself to perhaps go beyond court proceedings to include
any attempt to make arrangements for children out of court where mediation is, for example,
legally aided and to ensure that there is a reality that ascertaining children’s
wishes and feelings about arrangements affecting them, to check whether there’s
a need for a welfare threshold so that although parents are free to agree arrangements,
the lack of oversight means that in essence nobody’s checking on that unless they
end up in public law proceedings as a result of significant harm suffered by a child. Why
not within the Act give the child the right to be informed, consulted and if necessary, represented.
We think this is timely because we have moved everything out of court as far as possible but
that should not be to a situation where children have little or no agency without the law taking
stock of the implications of this. We do need to ensure that we’re not pushing children, in effect,
into public law proceedings where they are exposed to significant harm because we are
not checking that the arrangements for them made between parents are satisfactory. And
there is a move, including Wales and Scotland, to promote the rights of children by including
UNCRC rights within domestic law and indeed, we are due to report through
the four children’s commissioners of the UK as to how we are measuring up to that and we think
it would be a very good idea if in England where no developments have yet taken place,
we are at least scoping out how well the current law does measure up to Article 12 requirements.
Otherwise, there is a move as a I say in Scotland and already in Wales
towards adopting a children’s rights framework in other parts of the
UK and do we really want to leave the children of England, and indeed Northern Ireland,
behind? So I think it’s an absolutely critical moment to think about this now.
So as I say, a good moment, the Law Commission is entirely ideally placed to do this and
I have focused here with Jan on what the private law situation is but there would be no reason why
perhaps we shouldn’t look at this from a public law point of view
as well. I think there is research …[background interference]… Lundy and others have indicated
that actually if you do go as far as incorporating the UNCRC into domestic law,
the signs are that it provides a platform from which other legal measures that
give children enfranchisement if you like and positive consequences do follow automatically.
So thank you for listening and that’s our proposal.