The court’s dilemma in child cases
THE APPROACH of our courts to handling family law cases is influenced to a great extent by English common law, and the name of one judge features prominently in many of the judgments we often cite – Lady Hale. Lady Hale, who is viewed as an expert in family law, has been appointed as the first female president of the United Kingdom Supreme Court (formerly the House of Lords) and her appointment will take effect on October 2, 2017.
I have read with interest not only judgments written by Lady Hale, but some of her papers and presentations. Of interest, in family law, is the speech she delivered at the Association of Lawyers for Children Annual Conference in 2015.
She then noted that, in a 2003 speech, she considered the relative advantages of ensuring that children are heard in cases that affect their futures and referred to a paper prepared by Dr David Jones to say that children: Want to communicate. Have a right to know what is going on around them and to understand important matters about themselves.
Need protection from present or likely harm, so they need to be able to tell people about this, and people need to be able to pick up on the signs and ask them about it.
Need protection from the harm which may come to them in the future if they are kept in ignorance of, or are unable to talk about important matters in their lives.
Judicial opinion on several aspects of this debate are split. In particular, questions as to how old a child must be before he or she is allowed to give evidence at court, whether that child should communicate with the judge in private or should only do so through a legal representative specifically appointed to represent him or her are not settled.
Lady Hale referred to five advantages she identified in having judges see the children who are the subject of the cases they are considering:
The judge will then see the child as a real person, rather than as the object of other people’s disputes or concerns.
The court may learn more about the child’s wishes and feelings than is possible at second or third hand.
The child will feel respected, valued and involved, as long as the child is not coerced or obliged to make choices that he or she does not wish to make.
It presents an opportunity to help the child understand the rules [of court].
Parents, too, may be reassured that the court has been actively involved rather than simply rubber-stamping the professionals’ opinions.
FASCINATING PERSPECTIVE
The case law related to the court’s perspective on this issue is quite fascinating and makes for interesting reading, and the disadvantages of having children speak directly to judges are also real. On Lady Hale’s analysis, the need for special rules and the lack of resources to assist vulnerable parties are two of the prevailing challenges to establishing any structure in this area – and that is also true about Jamaica.
In Jamaica, there is guidance as to how children are to be treated when they interface with the criminal courts, whether they are offenders or victims, but the same is not true for the family court, and legal aid is not provided in family-law matters.
Although not offering a solution to this dilemma, Lady Hale’s comments should encourage us to take active steps to formulate rules and procedures so that there can be some certainty as to what to expect when dealing with child cases in the family courts. As said by Lady Hale, there is “. . . increasing recognition of children as people with a part to play in their own lives, rather than as passive recipients of their parents’ decisions”.