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Keeping Children In Their Proper Place

Keeping Children In Their Proper Place. Freda McKittrick Legal Aid Board Conference 22 nd September 2016. Introduction. The child the subject of a family law action – how best to hear his or her voice. The context.

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Keeping Children In Their Proper Place

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  1. Keeping Children In Their Proper Place Freda McKittrick Legal Aid Board Conference 22nd September 2016

  2. Introduction • The child the subject of a family law action – how best to hear his or her voice

  3. The context • Ireland has made significant strides in improving structural methods for children and youth participation • Have these been translated to individual opportunities?

  4. NATIONAL STRATEGY ONCHILDREN AND YOUNG PEOPLE’SPARTICIPATION IN DECISION-MAKING2015 – 2020

  5. Key Goals • 1. Children and young people will have a voice in decisions made in their local communities. • 2. Children and young people will have a voice in decision-making in early education, schools and the wider formal and non-formal education systems. • 3. Children and young people will have a voice in decisions that affect their health and well-being, including on the health and social services delivered to them. • 4. Children and young people will have a voice in the Courts and legal system.

  6. Developments • Comhairle na nÓg (local child and youth councils) in every Local Authority area of the country; • a vibrant national youth parliament (Dáil na nÓg); • a wide range of consultations with children and young people on issues of national importance • DCYA established the Children and Young People’s Participation Support Team

  7. Benefits to Participation • improved services, policies, research, active citizenship • improvements for children themselves and for society generally • inclusion of children and young people in decision making can promote children’s protection, improve their confidence, communication skills and ability to negotiate, network and make judgements

  8. Lundy Model of Participation

  9. 3 Children’s Participation Strategy Devise regulations setting standards with regard to the qualifications, role and performance of the experts provided for under the Children and Family Relationships Act 2015 to ascertain the views of the child in private family law proceedings.

  10. Children’s Participation Strategy • The DCYA will bring forward proposals to significantly reform the provisions in the Child Care Act 1991 relating to Guardians ad Litem.

  11. Children’s Participation Strategy • In reviewing its services, the Legal Aid Board’s External Consultative Panel will seek to improve its mechanisms for hearing the voice of children and young people in the context of examining the impact on children and young people of the Board’s policies and procedures.

  12. Guardian ad Litem • Best data suggest 50% of children in relevant care proceedings* • Area dependent: 18% - 82% • Not open to children in voluntary care • Judicial discretion *(source Coulter, Child Care Law Reporting Project)

  13. Problems • Ad Hoc entry • No regulation • Legal ambiguities • Seen as expensive • No child consultation

  14. Corrigan Study • In depth interviews with • 8 Children ages 8 - 16 • 9 District Court Judges • 22 Guardians ad Litem • Care Orders made in 2011

  15. Corrigan: Reasons to appoint • There is an emphasis on the appointment of Guardians in ‘complex’ cases and in particular those that are seen to present challenges to the judges.

  16. Problems in practice • Children not aware that they can have a Guardian ad Litem • No input into selection or appointment • No mechanism for child to apply • Child relies on adults if not happy with Guardian ad Litem • Children not aware of limits of confidentiality

  17. Complexity of the work -Voice in Adversity • ..children must ultimately be protected from harm but should also at least be afforded the opportunity to have their opinion heard and for due weight to be attached to this. This is of course limited in the context of the child’s age and understanding as determined by adults.

  18. Hearing children • Hearing and considering wishes and feelings of children in care is a complex and multi-layered task • Balances normative constructions with individual child’s circumstances • Child’s need for protection is foremost – not only from abuse, but from court process

  19. Welfare Vs Voice? • What weight is attributed to Voice when there are conflicting positions? • Is it possible to achieve reconciliation between views and wishes? • - It is likely that we are deciding between a range of options, each of which will meet some but not all of the child’s needs and some but not all of her wishes. (Schofield and Thoburn, 1996:18)

  20. Whose expectations? • Adults and children are following different agendas • Judges and GALs felt that by hearing the voice of the child better decisions are made in the child’s interests • For children, the value is in being heard, listened to and supported

  21. Benefits & Challenges • Identifying the inadequacies or absence of a care plan • Providing a mechanism by which the wishes and feelings of the child can be incorporated into decisions • Crowding, delay in appointments, long term cases, lack of skill, delay in proceedings

  22. The judges in the present study viewed having an advocate to articulate their wishes and feelings and having a relationship with someone that they trust as the two primary advantages for children of having a Guardian. • Other advantages perceived by the judges include allowing children to voice their views without parental interference, building the child’s confidence and promoting better outcomes for the child.

  23. Guardians said.. • …for a child to be represented and to be given that sense of themselves, that’s huge for that child individually. Then as they go into adulthood and take their place in the world I think it’s important that they know their voice is being heard…

  24. What was important to children?

  25. Scaffolding • Guardians, through tailored interventions, assist the child to develop a deeper and more detailed understanding of their circumstances, their family experience, their wishes and feelings and the potential realities of achieving their desired outcome.

  26. …skilled adults, such as Guardians, have the capacity to assist children from one stage of development where they mirror adult opinions, to another where they are facilitated to form and express wishes of their own

  27. Corrigan Conclusions • What is the purpose of seeking child’s wishes and feelings and whose interests does it serve? • Why are some children excluded from participation? • What assumptions do we make about children and the particular child?

  28. Barnardos Core Principles • Information • Consultation • Advocacy • Representation

  29. Attending Court: Ambiguity • the Irish judiciary do not favour children being present in the court when decisions are made about their futures (Shannon, 2000). • Paradox between greater calls for hearing and listening to the voice of children and the practical and procedural conditions required for children to assert this right (Fitzgerald et al., 2010), as well as concerns regarding the potential harm that direct participation in court proceedings may do to the child (Donnelly, 2010).

  30. Children attending Court • 8: 1 met judge, 1 wanted to and didn’t, 3 didn’t know and 3 did not want to attend. • Child 6 (aged 14 years): Because if my Mam was there and she or my Dad was there and say, like if I said, yeah, there was a time when this happened and then if my Mam tries to deny it or something then I’d, like, be afraid of what might happen next.

  31. A B & C 2014 • Examined children’s attendance at court • Should they be called as witnesses to give evidence in respect of their experiences at home? • If not, was this inconsistent with the two older children’s wish to meet with the Judge?

  32. A B & C • Judge Ni Chúlachain found that the in the children’s specific circumstances, it would have detrimental effect to give evidence. • In relation to meeting the Judge she found as follows:

  33. 34. The purpose of a judge meeting with and seeing children in child care proceedings is not to gather evidence. I accept that it would be an unfair procedure if evidence were given privately to a judge with the respondent neither knowing of nor being afforded an opportunity to challenge the content.

  34. 35. Nor is the purpose of such a meeting to obtain the views of the children. The views and wishes of the children are given to the court in the evidence of the GAL who has been appointed for this purpose. • 36. The purpose of children meeting the judge is to benefit the children. I accept that it is in their interest to have a sense of involvement and connection to proceedings in which important decisions affecting their lives are made. It gives them an opportunity to know who is making decisions about them and to reassure themselves that they have been understood.

  35. CAFRA • Significant legislation – determining best interests S31 • Requiring the views of the child to be taken into account S32

  36. Child’s Views Expert • New role introduced under CAFRA • Not the same as a Welfare report • No provision for funding if parents do not have means • Does not address how children will be heard if no CVE

  37. Brave New World • What is the aim of reform of GAL? • To ensure effective participation of children? • To improve decision making about children? • To ensure consistency? • To give all children in care and in family proceedings a voice? • To save money? • How are children to be involved in the reform? • What other institutional reforms are required?

  38. Checklist for Participation

  39. Keeping children in their proper place • …that is, at the heart of a provision that upholds the participation rights of children and recognises their ability to significantly contribute to and challenge our understanding of what is in their best interests. (Corrigan 2014)

  40. References • CHILDREN’S VOICES, ADULTS’ CHOICES: THE VOICE OF THE CHILD THROUGH THE GUARDIAN AD LITEM IN CHILD CARE PROCEEDINGS IN THE IRISH DISTRICT COURTS 2014 CARMEL CORRIGAN, M.A. • NATIONAL STRATEGY ON CHILDREN AND YOUNG PEOPLE’S PARTICIPATION IN DECISION-MAKING 2015 – 2020 DCYA • Lundy, L. (2007) ‘Voice is not enough: Conceptualizing Article 12 of the UNCRC’, British Educational Research Journal, Vol. 33, No. 6, pp. 927-42. • Child and Family Agency and DE (Admissability Hearsay Statements – Abuse) Neutral Citation [2014] IEDC 13 In the Matter of A, B and C. 19th September 2014 • Coulter: Child Law Reporting Project

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