It is Monday morning and the sun is shining; so we realise that sort of cancels out any possible feelings of extreme intensity either way, but on the bright side, we found this amazing and thought-provoking article which makes up the heart of our question for you this morning. (You might need a few chocolate covered digestives though – the milk chocolate variety – as the article is quite long and our ramblings below a bit, well, rambly)…..
Taken from the Family Law Week website and written last week, this article talks about the involvement of children in family law proceedings and is brilliant for lots of reasons. The first thing about the piece is that it gives a very simple and straightforward breakdown of the way the law perceives children’s rights in this context and very neatly compares and contrasts the traditional paternalistic perception with the emerging and more “modern” view of children and children’s rights.
We have placed the word “modern” in quotation marks because this is where the more layered and interesting aspects of the article start to work their way in. Modern seems to have two meanings in the context of this article about children getting involved in family proceedings like court hearings – it seems to touch on the idea that we are adopting a more modern view, which is that children today are more mature than the children that came before them and that society has become more enlightened about children in general. This article sways a little between the two, and on the one hand plays it safe by very subtly favouring the more traditional approach as it brands the modern view as potentially dangerous and fraught with difficulty for children and on the other, ensuring that lawyers do not become obsolete altogether, making a slightly disjointed observation that unless experienced professionals represent children in court, their rights are likely to slip away. (But please don’t take our word for it. It’s all in the last paragraph).
Once you get past the interesting but slightly irrelevant sales pitch, you can see something more fascinating: the struggle between what ought to be and what is. Again, there is a clue in the concluding paragraph which reads,
“In practice, the involvement of young people in court decisions will inevitably be influenced by the resources allocated to this issue. As Wall LJ said in Mabon v Mabon “The common law adversarial mode of trial which still forms the basis of our civil family law proceedings, although modified and in continuous development, makes it difficult for all but the most confident and competent children to participate effectively”.
Another startling distinction made in this article is one made by Baroness Hale in Re W (Children)(Family Proceedings: Evidence), where she goes on to say that the approach to children giving evidence should differ in private family law proceedings on the basis that,
“Allegations are not being made by a neutral and expert local authority which has nothing to gain by making them, but by a parent who is seeking to gain advantage in the battle against the other parent. This does not mean that they are false but it does increase the risk of misinterpretation, exaggeration or downright fabrication”.
With all humility, the reasoning here is flawed and does not reflect the need for there to be a universal approach across the board as the issues in private and public proceedings are fundamentally one and the same. It also displays a worrying lack of awareness about mirrored concerns in relation to public family law proceedings. We are a little disappointed, but in fairness to her, she does go on to say,
“On the other hand……There are also many more litigants in person in private proceedings [so] if the court does not reach the conclusion that justice cannot be done unless the child gives evidence, it will have to take very careful precautions to ensure that the child is not harmed by this.”
Once again, litigants in person are very much a new and increasing feature of public family law work and we are sure this trend is set to continue with the onset of legal aid cuts. And whilst it may be the case that one party in public family law proceedings has superb representation – the local authority – we hope very much that Baroness Hale acknowledges that in the ever persisting adversarial process, both parties must be equipped with equal support, otherwise the playing field is uneven which, of course, is where the real danger in the creation of an unjust outcome lies.
Whilst lawyers struggle with the reality of the family justice system, children struggle with muddled views about their own ability to understand and the very awkward nature of the court process, which lumbers on at a painfully slow pace. This article is filled with quite a few more paragraphs on things like judges talking to children and is well worth a read for its summation of the law and the writers’ own personal views on things.
So, what do you think….. should resources be blamed or is something else the root of the problem? Please don’t feel limited to our ramblings above; the article has lots of food for thought!
Possible answer: the system to our mind has enough resources to develop itself into a functional system, by firstly changing the culture inside the system, starting with its perception of children (who have been underestimated since the beginning of time). There is a wealth of informed and highly enlightened information out there on children and there is no excuse for a muddled approach, whether in relation to children or the eradication of the adversarial process.