Jacqueline Matthews-Stroud looks at the philosophical, yet important practical, issue of how and when to hear from children themselves.
In 2007 a report by a sub-group of the Family Justice Council said: “There is an increasing body of research evidence that demonstrates that children want more involvement in the court process.” Children felt that the proceedings were happening to them but they were excluded, powerless to influence, contribute or even make their voice heard in the process. This paper was entitled ‘Starting the debate’.
The writers anticipated that some children would be content for a CAFCASS officer or social worker to represent their views, some would want to complete a wishes and feelings statement with the officer, write a letter to the judge, visit court, meet the judge or receive a copy of the judgment appropriately edited.
The paper indicated that, as a broad proposition, there were good reasons why judges should be less reluctant to see children than has hitherto been the case.
The practical issues surrounding a child seeing a judge were set out, but ‘the way ahead’ was seen as it being desirable for CAFCASS officers to ask all children over the age of 7 whether they would like to be involved in the court process and to prompt the child by suggesting the possibilities.
The “Guidelines for Judges Meeting Children who are Subject to Family Proceedings”  2 FLR 1872 were issued by the Family Justice Council and Sir Nicholas Wall, then President of the Family Division, in April 2010. The purpose of these guidelines being to encourage judges to enable children to feel more involved and connected with proceedings in which important decisions are made in their lives and to give them an opportunity to satisfy themselves that the judge has understood their wishes and feelings and understand the nature of the judge’s task.
It is important to remember that the purpose in seeing the child is not to gather evidence but to enable the child to gain an understanding of what is going on and to be reassured that the judge has understood him/her. In Re KP (A Child)  EWCA Civ 554, for instance, the Court of Appeal found that the judge at the conclusion of Hague Convention proceedings had crossed the line between simply meeting the child under the 2010 Guidelines and actually eliciting evidence from the child. Moore-Bick LJ, in giving reasons for the court’s judgment, also set out further guidance upon this issue at paragraph 56:
“i) During that part of any meeting between a young person and a judge in which the judge is listening to the child's point of view and hearing what they have to say, the judge's role should be largely that of a passive recipient of whatever communication the young person wishes to transmit.
ii) The purpose of the meeting is not to obtain evidence and the judge should not, therefore, probe or seek to test whatever it is that the child wishes to say. The meeting is primarily for the benefit of the child, rather than for the benefit of the forensic process by providing additional evidence to the judge. As the Guidelines state, the task of gathering evidence is for the specialist CAFCASS officers who have, as Mr Gupta submits, developed an expertise in this field.
iii) A meeting, such as in the present case, taking place prior to the judge deciding upon the central issues should be for the dual purposes of allowing the judge to hear what the young person may wish to volunteer and for the young person to hear the judge explain the nature of the court process. Whilst not wishing to be prescriptive, and whilst acknowledging that the encounter will proceed at the pace of the child, which will vary from case to case, it is difficult to envisage circumstances in which such a meeting would last for more than 20 minutes or so.
iv) If the child volunteers evidence that would or might be relevant to the outcome of the proceedings, the judge should report back to the parties and determine whether, and if so how, that evidence should be adduced.”
The judge, Parker J, was found to have adopted a process in which she sought to ‘probe’ K’s wishes and feelings over the course of more than an hour by asking some 87 questions. This, despite care self-direction, strayed significantly over the line and into the process of gathering evidence.
It would seem that this is now an area that will be the subject of further review.
One of their tasks will be to review the Family Justice Council’s April 2010 Guidelines for Judges Meeting Children who are Subject to Family Proceedings  2 FLR 1872, particularly in the light of the Court of Appeal’s recent decision in Re KP  EWCA Civ 554.
In the meantime, judges will continue to exercise their judicial discretion as to whether they should personally interview a child. ECHR Art 12 provides that a child should be heard in any judicial proceedings affecting him either directly or through a representative. However, this is simply an opportunity for the child to say whatever it is they wish to say to the judge who is to make an important decision affecting the child’s life.