But What About the Children? Hearing the Voice of Children and Young People in court proceedings

On Monday 9th March 2017 I attended the Nagalro Autumn Conference which examined how children’s voices are heard in court proceedings about them. Nagalro is the Professional Association for children’s guardians, family court advisors and independent social workers and works to ensure children’s voices are heard.

• See tweets from the day by searching for #whataboutthechild
• For a more general overview about the current state of the law regarding children’s participation in court proceedings, see this post from the Child Protection Resource.

The President of the Family Division, Sir James Munby gave the opening remarks, commenting on the sad lack of visibility of children within the system, which was ostensibly dedicated to promoting their welfare.

It was an interesting event for me as it was clear from a number of shocked audience reactions at various times that they were hearing things that they had not known and which surprised and troubled them.

Of particular interest for me was the discussion by Amy Harrison of Triangle about how even very young children could be supported to give credible and reliable accounts of what had happened to them.

Of particular interest to The Transparency Project were the views of the Family Justice Young People’s Board. about further opening up of the family courts – a majority of their members were against it. This is something we need to explore further – what were the objections? Is there anyway we can mitigate these concerns?

Speakers and Topics

Rodney Noon (‘Children’s Involvement in Court Proceedings: Surveying the Landscape’) and Debbie Singleton of NYAS (‘The role of NYAS in Representing Children in Private Law Proceedings and Advocating for Them in the Decision Making Process’) looked at the legal framework which attempts to ensure that children’s voices are heard, reminding us that of course it is the child more than anyone else who will have to live with the decisions of the court.

It is therefore incumbent upon us to consider the child’s participation at the earliest stage

With regard to children giving evidence in court , although McFarlane LJ’s 2016 criticism of the failure of the family court to abide by the principles of the 2010 decision re W, had clearly had some impact in that ‘Re W assessments’ were on the increase, it did not seem that this was translating into more children actually giving evidence in court.

Debbie Singleton in particular was worried about how promoting children’s rights could easily become a casualty of a climate of austerity, increasing workloads and stress:

Amy Harrison of the intermediary service Triangle then examined how children’s evidence is being heard and tested in family proceedings. Her discussion of a real life case and showing the video interview of a nearly 3 year old (permitted by the police to be shown as a training video) provoked the first audible shock amongst the audience.

The child had given a pretty clear recorded account of her daddy ‘hurting her mitty’ (the child’s name for her vulva) but no further action was taken. The parents separated and the father was granted overnight contact in the family court. The child repeated her allegations at 5 years and 11 months and this time there was a criminal trial and her father was convicted. The first video interview became evidence in that criminal trial – as to her credibility and her father’s propensities.

Amy reminded us of a point that I think is often overlooked – it is the adult’s duty to create an environment where the child feels safe to talk and is able to talk

Listening to children as early as possible can save time, money and trauma. The youngest child so far assisted by Triangle to be successfully interviewed was only 20 months old.

Speakers from the Family Justice Young People’s Board also provoked some audience reaction, but this time one of happy surprise.

The young people emphasised that what was needed was TIME – to build up a relationship with the child. They agreed emphatically with both Rodney Noon and Debbie Singleton that the child should ALWAYS be seen by the adult purporting to represent them. They also agreed that it was very much appreciated when a judge took the time and trouble to write to a child.

Of particular concern was the dilapidated state of court buildings (a concern echoed by the President) which increased their feelings of alienation – physical environments matter. What message does this give to those using the courts that their environments are so poor?

There is also a need for adult assessors to focus more on the importance of sibling relationships even when the siblings didn’t live together.

The President praised the participation of the FJYPB, commenting that his meetings with them were among his most challenging – they say it as they see it, a refreshing quality which many adults lose.

Conclusion

I left the conference feeling particularly sobered by what Amy Harrison had discussed – only a week before I had considered an advice where I commented that the ABE interview of a 4 year old was unlikely to be persuasive given her age. But it seems that we cannot so easily discount what children say on the basis of their young age and apparent lack of understanding. We need to provide an environment where they can be encouraged and supported to talk – not just with a legal framework that in theory allows access to the court, but with an entire system that in actuality makes this possible.

The President made the point that the family justice system continues to lag shamefully behind the criminal justice system in its ability to protect vulnerable witnesses. And he is sadly pessimistic about the possibility of change any time soon.