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UN Convention on the Rights of the Child

I know that some of my commenters have been interested in this in the past, and in particular the curious half-way house that the UK finds itself in with the UN Convention.  We recognise it in our law, but don’t consider ourselves to be bound by it.  The Government has agreed to take it into account when formulating policy but there isn’t a cause of action that a person can take to Court to say “I think X has acted in breach of the UN Convention”

 

That came into very sharp focus in the Supreme Court’s decision as to whether the Government’s policy on a cap on welfare benefits was discriminatory and in contravention of the UN Convention on the Rights of the Child – since children of parents who were (a) on benefits and (b) had large families were going to find themselves poorer through no fault of their own.  Had the UN Convention been a formal part of English law, what was a knife-edge decision that the policy wasn’t discriminatory might easily have gone the other way.

 

[When I say knife-edge, I’m not kidding. It was 2-2, and the Judge who made the fifth judgment had gone the other way in his original decision, but changed his opinion when he saw the other draft judgments. It honestly could not have been closer]

 

See the excellent summary in UK Human Rights blog, which I couldn’t hope to match.

http://ukhumanrightsblog.com/2015/03/19/supreme-court-splits-the-baby-over-the-benefit-cap-mike-spencer/

 

And the other newsworthy item on the UN Convention is the Parliamentary report on the UK’s compliance with the UN Convention here :-

Click to access UK_s_compliance_with_the_UN_Convention_on_the_Rights_of_the_Child.pdf

summarised very well by the people at Jordan’s Family Law here

http://www.familylaw.co.uk/news_and_comment/uk-s-commitment-to-children-s-rights-doesn-t-go-far-enough#.VRFUtfmsUXw

 

The Report also points to areas, such as immigration, legal aid and children in custody, where some policy developments have actually worked against the best interests of children, despite the Government’s specific commitment to the United Nations Convention on the Rights of the Child (UNCRC) made in December 2010.

The Committee expresses its disappointment that, during the current period of austerity, children – particularly disadvantaged children – have in certain areas suffered disproportionately, and concludes that the Government’s statutory duty to eliminate child poverty by 2020 should be treated as a human rights issue.

The Committee also states that the Government should move to ratify the Optional Protocol to the UNCRC which would allow children in the UK the right to individual petition to the UN Committee on the Rights of the Child in the same way that applies under the UN Convention on the Elimination of Discrimination Against Women and the UN Convention on the Rights of Persons with Disabilities.

 

 

 

Does a child have a RIGHT to give evidence? Does anyone?

The Court of Appeal decision in Re P-S (Children) 2013

An interesting case. A child whose future was being determined by the Court had a different view to that of the Guardian representing him, and was competent to instruct his own solicitor. He did so. He met with the Judge, who obviously did not conduct that meeting as any form of forensic exercise.

 He later became distressed and unhappy and applied through his lawyer to give oral evidence, so that the Court could directly hear his views on the plans being considered and his strong opposition to those plans. The other parties made it plain that they would not cross-examine him, so his evidence would be instead a platform for his direct expression of his views.

 The Court refused that application and went on, in due course, to make the orders that the young person had been opposing.

 The appeal was therefore on the point of whether the child had a RIGHT to give evidence, if he was competent to do so, or whether it was a case management decision in the discretion of the Judge.

 And additionally, whether, when the child is of sufficient age and understanding, should the “wishes and feelings” portion of the Welfare Checklist, be weighted such that it is a rebuttable presumption in favour of their wishes being complied with.

 

On 16th November 2011 M made his application for permission to attend to give evidence by video link “so that the strength of my feelings can be made clear to everyone”. He explained that he would be “extremely distressed if told that I was to be forced to remain in foster care and I would struggle greatly to accept this outcome.” He also said that “I have had thoughts of running away as sometimes I have felt that people are not taking me seriously. These have occurred quite often, including quite recently, but in the last few weeks I have been a little more optimistic and hope that the court will grant my wishes. I would feel devastated if I were told I could not return.” That application was heard on 21st November 2011, the Local Authority and guardian indicating that they did not wish to cross-examine M on the content of his statement, Mother indicated that the only question she would be seeking to ask him through her counsel would be about the likelihood of him voting with his feet and running away from the foster placement should a care order be made.

 

 

The judgment on M’s giving evidence

10. The judge observed that the two authorities to which she had been referred, namely Re: W (Children) (Abuse: Oral Evidence) [2010] UKSC 12, [2010] 1 WLR 701 and A City Council v T, J and K [2011] EWHC 1082 (Fam), [2011] 2 FLR 803, dealt with radically different situations from the one with which the court was faced, the former concerning the giving of evidence to substantiate a complaint for the purpose of establishing the threshold and the latter dealing with an application for secure accommodation.

11. She made these findings:

“12. It is a relevant factor that the Mother has always displayed her own emotions quite openly in court whether represented or not. …

13. There remains, therefore, in my judgment a severe risk that if M is within the court precincts and available to Mother, as he would be by way of the video link, she will be unable to resist the temptation for an extreme emotional outburst in his presence which, based on her previous conduct in court, it would be impossible to control. That I regard as of real potential detriment to M in terms of his coming to give evidence.”

12. She noted Mr Blakes suggestion that there is “value added” to his written statements through the court being able to assess Ms subjective viewpoint and the strength of his feelings through his demeanour. But she held that it was inevitable that he would want to do what he thinks is right by his Mother and will want to put right by what he Judgment Approved by the court for handing down. P-S (Children)

says matters over which he has no control and for which he is not responsible. Her conclusions were:

“37. It is likely, in my judgment, to be enormously harmful to M to assume a responsibility for the outcome of this case, which is exactly what he would do if he came to court to give evidence. … If [I may not be able to arrive at a conclusion which is consistent with his wishes] then he will feel that he has failed and moreover that there is a prospect that his relationship with those who would be responsible for his care and his own Guardian would be damaged. …

38. I question whether there is anything more that M can tell me or which I am going to be able to assess from his demeanour that is going to assist me with the determination of the relevant issues. …

39. I am prepared to accept, both for the purposes of this application and for tomorrows hearing that M would like to return to the care of his Mother, and if that involves As father to their joint care I am perfectly prepared to accept that he will be bitterly disappointed if he is not able to achieve that. I am also prepared to accept that there may be some short-term emotional harm to him as a result of a rejection of that case which is put on his behalf. But, as the advocates will be aware, there is rarely a perfect outcome to proceedings involving children, and this case is no exception.

40. The conclusion that I have arrived at is that the additional benefit to the determination of the relevant issues of M giving evidence is significantly outweighed by the very real potential detriment.

41. If there is really no evidential matter on which Ms evidence can assist the Court, slow though I am to arrive at this conclusion, I have to question whether there is any need for him to be placed in the invidious position of giving evidence when the giving of that evidence may make matters significantly harder for him should the case go against his express wishes.”

 

 

The Appeal considered the UN Convention on the Rights of the Child, particularly Article 12

 Article 12 of the Convention provides:

“1. States 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.

 

2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.” (I have added the emphasis)

 

How successful have we been in implementing Article 12? First, the child is automatically a party to the care proceedings by virtue of FPR 12.3(1). Secondly, there is provision for the representation of the child, s.41 of the Children Act requiring the appointment of an officer of the service or a Welsh family proceedings officer for the child concerned unless satisfied that it is not necessary to do so in order to safeguard his interest. The court may appoint a solicitor to represent him. The so-called “tandem” model for the representation of children who are parties to family proceedings, namely by a guardian with social working qualifications and a specialist family solicitor meets our obligations to comply with Article 12: see Mabon v Mabon [2005] EWCA Civ 634, [2005] Fam 366, per Thorpe LJ at [26] who went on to conclude his judgment saying:

“32. … this case provides a timely opportunity to recognise the growing acknowledgement of the autonomy and consequential rights of children, both nationally and internationally. The Rules are sufficiently robustly drawn to accommodate that shift.”

If the circumstances of the case demands it, as they did in this case, the child will be afforded separate legal representation by solicitors and counsel.

27. Thirdly, there is provision for attendance. Under s. 95 of the Children Act the court may order the child concerned to attend as prescribed by rules of court. FPR 12.14 provides that any party must attend the proceedings but the proceedings or any part of them may take place in the absence of a child pursuant to FPR 12.14(3) if the court considers it in the interests of the child having regard to the matters to be discussed or the evidence likely to be given and the child is represented by a guardian or solicitor.

28. Fourthly, as for evidence, s. 96 of the Children Act provides that a childs evidence may be heard by the court if, in its opinion he understands that it is duty to speak the truth and he has sufficient understanding to justify his evidence being heard. S. 96 also provides for the admissibility of evidence which would otherwise be inadmissible under any rule of law relating to hearsay. FPR 22.1 gives the court power to control evidence by giving directions as to the issues on which it requires evidence, the nature of that evidence and the way in which the evidence is to be placed before the court. The general rule is that any fact which needs to be proved by the evidence of witnesses is to be proved at the final hearing by the oral evidence.

 

 Of course, section 96 is providing the POWER to hear from a child, in those circumstances, and not providing a RIGHT for the child to hear evidence. And the Court of Appeal here draw the distinction between hearing from a witness to PROVE a fact, and hearing from them as to their views.

 (The case of Re W, of course, the lead authority on children giving evidence, was primarily dealing with cases where the child was s96 competent to give evidence AND was a witness of fact. Here, the issue was not a factual dispute to be unpicked, but as so often in care cases, a dispute as to how the case should be properly disposed of, given the facts that were available)

 The lead judgment in Re P-S grappled with the issue of whether a child has a RIGHT to give evidence and reached this conclusion  [underlining is mine]

 

That being the jurisprudence, is it enough for us to say that a child has a right not only to be heard in proceedings affecting him but also, and more relevantly for the appeal, a right to give evidence in those proceedings? The U.N. Convention on the Rights of the Child has not been made a part of English law but the duty of the court is nonetheless to have to it when considering matters relating to it. The position may now be different in Wales because the United Nations Convention on the Rights of the Child has become part of Welsh legislation by reason of the Rights of Children and Young Persons Measure (Wales) 2011 which came into force in May 2012. The Measure will shape all future policy decisions taken by Welsh ministers.

36. Nevertheless, in my judgment, it should now be declared that the child does have the former important but limited right, that is to say, a right to be heard in the proceedings. It is apparent from the foregoing that the right to be heard does not specify how the child is to be heard for the Convention expressly recognises that the voice of the child may be conveyed “either directly, or through a representative or appropriate body”. Indeed the guidance at [43] prefers the child being heard under

conditions of confidentiality, not in open court. It may be enough that a social worker, i.e. the CAFCASS officer or guardian hears the views of the child and it does not seem essential that it has to be the judge who hears directly from the child. So, whilst the child must be listened to, there is nothing in the Convention which entitles the child to give evidence to the judge. In my judgment a child has no right to give evidence.

 

 

 

The Court of Appeal then went on, and this is what makes the case particularly interesting, to a law geek like myself

 

In my judgment no-one has a right to give evidence. A trial may nonetheless be fair if the court exercises fair and reasonable powers to control the evidence as is provided for by FPR 22. Once there is undisputed evidence of a fact which may, for example, be a fact admitted on the pleadings, there is no need for further oral evidence to prove that fact. Evidence may be led to dispute a fact but the court will not tolerate a parade of witnesses all saying the same thing. An adult would not be allowed to give that evidence any more than a child should be.

 

[I think until the Court of Appeal ruled on that, MOST professionals would have suspected and said confidently that a party had a right to give evidence in care proceedings – yes, that that doesn’t mean they can pontificate for hours on end, or that they can call a string of character witnesses, but that if they want to get into the box and speak directly they have the right to do so.]

I have had many cases, and am sure that other lawyers and professionals would say the same, where the parents have wanted to have their say in giving evidence to the Court, although the evidence is not being heard to resolve a factual dispute  (did X or Y event happen) but rather as part of disposal (given that X or Y happened, what should happen now?)

 I have often made it plain, in those circumstances, that I would not cross-examine the parents, who want to have their say – their view and beliefs are legitimately held, and the experience of care proceedings is bad enough for a parent without my cross-examining them (unless there is a factual dispute).

This authority suggests that a parent does not have a RIGHT to take to the stand and be heard from, in the absence of a factual dispute.

 Of course, the reality is that this evidence takes little time, gives the Court a feel for the parents presentation and is perhaps part of the cathartic process for the parents in feeling that they had their say – as opposed to leaving Court feeling like they have not been heard.  I suspect that most Courts will continue to hear from parents in those circumstances, but as they say in Game of Thrones, “Winter is Coming” and who knows how circumscribed our hearings might become in our brave new world of 26 weeks?

 The last point of the appeal was whether the welfare checklist was, in effect, weighted once a child neared their majority so that their wishes and feelings had greater force than the other elements, or was perhaps even a rebuttable presumption that they should be adhered to.

Is there a rebuttable presumption that the mature child’s wishes should prevail?

43. In my judgment the answer is certainly not. The checklist sets out a range of factors to be taken into account, only one of which is the wishes and feelings of the child having regard to his age and understanding. The weight to be given to that factor will vary from case to case. It may be a very weighty factor, it may even be the determinative factor in a particular case but s. 1(3) simply cannot be construed so as to read into it some hierarchy of weight or presumptions of precedence over other factors. Each case is fact sensitive. Judge Parry dismissed this argument for reasons with which I totally agree.

“Two thirds of children who died of abuse in 2012 could have been saved”

An examination of this very shocking claim from the Children’s Rights Alliance for England report, and discussion of the report itself.

This is a very interesting report, with very weighty contributors. The report is scathing and coruscating of the way that Children’s Rights and issues affecting children is dealt with in the UK, particularly by the Government. I found the tone a bit polemical and overtly political, but there is no doubt that the authors care passionately about children’s welfare and are extremely angry and fearful about the failings they identify.

If you are worried about where we are currently going as a nation, or care passionately about the nation’s children, this report is a must-read. (I did find it too overtly Tory-bashing, but it is still for all of its political slants a meaningful and strong document)

The report is here:- http://www.crae.org.uk/assets/files/s%20Rights%202012.pdf

Here are some of the headline points they open with, and they are shocking.

• Forty-eight children died as a result of ‘deliberately inflicted injury, abuse or neglect’ in 2011-12. Sixty-five per cent of these deaths were ‘modifiable’ – there were factors involved in the death indicating that achievable steps could be taken to reduce the risk of future deaths.

• Between April 2009 and April 2010, Tasers were used on under-18s a total of 144 times. In the previous 12 month period Tasers were used on children 102 times – an increase of 41%.

• Thirty-three children have died in custody in England and Wales since 1990. In January 2012, two children died within a week.

• Official statistics published in November 2012 reported that the number of children going missing from foster care had increased by 19% in the previous year.

• More than 3,000 foster children are estimated to have gone missing in the year up to March 2012. As of 31 March 2012 there were a reported 1% still missing from care.

• In 2011 only 13.9% of children in care achieved good GCSE grades (A* to C) in both English and mathematics, compared to 58.6% of their peers. The attainment gap has risen from 37.2 in 2007 to 44.7 in 2011.

• When they visit a looked after child, social workers are required to speak to the child in private, but only 39% of children say that this happens on every visit, and 5% of children said that this never happens.

• Official figures published in November 2012 revealed that of 6,610 care leavers aged 19, 36% (2,390) were not in education, employment or training. This percentage is at its highest since 2008 (when it was 24%).

Action for Children’s analysis of the impact of Government spending decisions on vulnerable children and families found that family support services have been significantly affected by cuts to local authority spending. Out of 48 family support managers questioned:

• 13% of managers had seen a decrease in the number of hours that staff were able to spend with families and children in the last 12 months;

• More than a quarter of managers (27%) reported a decrease in funding. 4% of services reported a budget increase;

 • 44% of managers reported that the number of new referrals is rising, compared to the previous six months;

• According to almost two-thirds (62%) of the managers, families are facing increasingly severe problems

I was staggered to read here that this country is Tasering children. I knew that the number of children who die from abuse each year is roughly one a week, so 48 is obviously tragic and shocking though not surprising to me. The claim that 65% were ‘modifiable’ is probably what is going to be reported in the papers in lines with the headline I have used for this piece.

Let’s have a look at the specific bits in the report on this:-

Statutory guidance sets out the procedures to be followed when a child dies.

Two processes are conducted to review child deaths.

A rapid response by key professionals is undertaken to investigate each individual unexpected death of a child.

A Child Death Overview Panel will also conduct an overview of all child deaths in the area covered by the Local Safeguarding Children Board (LSCB). Either of these processes can trigger a Serious Case Review.

Child death review processes became mandatory in April 2008, though LSCBs have been able to implement these functions since April 2006.

There were 4,012 child death reviews in the year ending 31 March 2012. This is slightly lower than the number of reviews carried out in the previous year.

Official data shows that there were 784 ‘modifiable’ deaths in England in 2011-12. A modifiable death is the official term given to a death where one or more factors could be modified (changed) to reduce the risk of future child deaths. (This is the same proportion as the previous year – 20% of the total number of child deaths reviewed)

The age breakdown of the 784 ‘modifiable’ deaths is as follows:

• Newborns under the age of 27 days accounted for 45% of modifiable child deaths (an increase of 12% on the previous year)

• Infants aged between 28 and 364 days accounted for 21% of modifiable child deaths

• Children aged between 1 and 4 years accounted for 12% of modifiable child deaths

• Children aged between 15 and 17 years accounted for 9% of modifiable child deaths

• Children aged between 10 and 14 accounted for 7% of modifiable child deaths

• Children aged between 5 and 9 years accounted for 6% of modifiable child deaths.

Older children who died aged 15-17 years were more likely to have modifiable factors identified in their deaths, with 32% of this age group having modifiable factors identified, compared to 18% of children aged under one-year.

Of the 43 children that died in England in 2011-12 as a result of deliberately inflicted injury, abuse or neglect over half (28) were deemed to have modifiable factors.

Six per cent (45) of the 784 children who died where modifiable factors were identified were, or had been, subject to a child protection plan at the time of death; and 50 of the 784 children were or had been subject to a statutory order at the time of death.

The EHRC’s Human Rights Review states that local authority mechanisms for investigating and learning from serious cases of ill-treatment may be ‘insufficient’. The Review reiterates the concerns expressed in the Munro Review that serious case reviews are failing to identify the core issues that prevent child protection professionals from protecting children. In addition, the EHRC concludes that agencies often fail to work together effectively to prevent the ill-treatment of children.

The report notes that in child protection cases there is often a blurring of boundaries between different agencies. This lack of communication means that at-risk children can fall through the gaps.

So the 781 child deaths that were reviewed covered a wide range of causes, and it is the 48 who died from abuse that the report is focussing on. I see no reason to dispute that the figures about whether the deaths were ‘modifiable’ are accurate figures and that the decision as to whether they were ‘modifiable’ (or preventable, in plain English) are accurately taken from the investigation into those deaths.

That is a shocking figure. Not least given that we have all been working under the shadow of Baby P for over four years now, with numbers of care proceedings having gone up nearly 50% over that time.

There is an argument that somewhere along the line since Baby P, perhaps explicitly, perhaps in an underlying and unconscious trend, that the nation has moved in child protection terms quite far along the “child rescue” side of the scale rather than “family preservation” and that underpinning that is the understandable desire amongst social workers, and maybe even Courts not to have another tragedy like Baby P, and that perhaps, buried deep under that is the notion that separating more families is a price worth paying to avoid that.

But we don’t seem to have reduced the numbers of child deaths caused by abuse (at least not appreciably) and this report is decent evidence to suggest that even in the most hyper aware culture of ‘child rescue’ we have had in this country, 28 children died of abuse where this could have been avoided.

If there has been a lurch down the ‘child rescue’ side of the scale, as some commentators suggest, has that actually had any positive benefits for the children of the UK compared to the negative aspects of the system not properly balancing ‘family preservation’?

As I was recently suggesting in my post about Baby P, unless you become as a society so risk averse that any sniff of risk results in removal of children, you can’t necessarily tell which children who are at risk will fall into that dreadful bracket.

It all seems terribly inevitable, when you do what the Press does and work backwards from the death to look at the history.

I’d suggest that this is a media fallacy – yes, if you start from the death and look at all of the concerns the outcome seems terribly inevitable, just as if you only interview people who have WON the national lottery you would establish that buying a lottery ticket inevitably leads to winning the lottery.

You need to be aware of how many people buy tickets and don’t have any life-changing event, to have any idea as to whether buying a lottery ticket is likely to lead to you winning the lottery.

Unless you look at the pool of children who have those sorts of pattern of concerns and bruises and worries who end up being able to be safely managed at home, which of course nobody ever does, you don’t get an accurate picture of what risks, if any, do inevitably lead to child deaths, and which are just professionals weighing up the interest of keeping a family together and managing risk against ‘safety first’ and breaking up a family, and who with the magical benefit of hindsight maybe got that balance wrong with tragic consequences.

A thought-provoking report. Worth a read.