Seen and Heard

I’ve just read an interesting article by District Judge Paul Carr who sits at Watford County Court on ‘The Voice of the Child’ published in [2009] Fam Law 290 (1 Apr 09) in which he sets out his views about Judges seeing children involved in proceedings and how that should be handled. I’ve posted on the topic of participation of children before.

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Since my last post on the topic I’ve dealt with and been made aware of further cases where the judge has seen the children in the case, and although I am positive about the benefits of children meeting with the judge in the right case and if handled properly, I am anxious that, as the debate about the pros of seeing children progresses, different judges appear to be developing different and inconsistent practices. So, for example District Judge Carr suggests in his article that the lawyers in the case should always be present when the judge meets with the child, and a record always made. However, in my experience lawyers have deliberately been excluded, although in one instance a female member of staff from the court office was present (quite what her role or qualifications were I’m not sure), and no written record or summary has ever been made available to the parties (and it is unclear if the tape is running).

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I’m not wanting to say which approach is right or wrong, but I do think that everyone involved – Judges, parties and their legal representatives – would be assisted by clear guidance on when it is right to see a child and how this can be smoothly incorporated into court procedure. In another case the parties had attended with the children, but because the children were still present at court any further negotiation in respect of contact based on their wishes as expressed to the judge was hampered by the fact that the children could hear everything said and there was no effective means of having any private negotiation. Such situations can be resolved easily enough by having a system of separate or staggered appointments for the hearing of children’s views by the judge and the listing of any review hearing shortly thereafter, but it does require a system to be in place and operational in the court in question, and that staff are familiar with it.

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In another case I dealt with the local court building was so small that it was impossible for the children to come to court without passing in very close proximity to their father, when one of the issues in the case was his inability to refrain from putting inappropriate pressure on the children to see him. Again, this type of issue requires careful thought and prior planning and would be simply solved by seeing the children on a separate occasion from the subsequent review and directions hearing.

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And in another case a parent acting in person sought to rely upon her recollection of what the judge who had seen the children had reported in making submissions about the children’s wishes and feelings before a different judge. Nobody had a written record of what the children had actually said. Again, easily solved if appropriate systems are in place.

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It is particularly difficult for advocates to explain to anxious parents who are asked to bring their children to court what is going to happen when practice varies so widely and where there is no established best practice or consensus about how matters should proceed. It is right for the voice of the child to be more often heard by means of direct meeting with the judge, and the movement towards this becoming more common practice is gathering pace, albeit with considerable local variation. Guidance in the form of a Practice Direction is now urgently required.

One thought on “Seen and Heard

  1. Provincial Solicitor

    There certainly needs to be some formal guidance on this topic. My view is that any discussion needs to be taped or an official note taken by the Clerk to be authorised later by the Judge or Magistrates. Having said that, in many cases the Child’s Solicitor or Guardian should be able to deal with many of the issues that arise. However I know that exceptions crop up from time to time.
    Also of interest might be Sir Mark Potter’s speech “The Voice of the Child: Children’s “Rights” in Family Proceedings”:-
    http://www.judiciary.gov.uk/docs/speeches/pfd_voice_of_the_child_israel_040508.pdf

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