The Voice of the Child in Legal Proceedings

1. The Voice of the Child in Legal Proceedings PILA/PILS Conference Fri 11th November 2011 Kathryn Stevenson Head of Legal Services (CLC)

2. The Children's Law Centre 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 2Non-DiscriminationArticle 3Best Interests of the ChildArticle 12 The Child’s Opinion

3. The Children's Law Centre seeking to.. • 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 Centre • Make a reality of children’s rights

4. The Children's Law Centre doing this through..... • 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

5. 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

6. 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

7. 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.

8. 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

9. 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”

10. 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”.

11. 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

12. 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.

13. 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

14. 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?

15. Carla’s story in her own words • http://www.bbc.co.uk/northernireland/community/aac/appeals/childrens_law_centre.shtml

16. The Children's Law Centre • FREE PHONE: 0808 808 5678 • FREE-POST: chalky, Bel3837, Belfast, BT15 1BR • E-MAIL: chalky@childrenslawcentre.org Children’s Law Centre Help and Advice Line for Kids and Young people CHALKY