Monday, 9 January 2012

Judges and children – AJ v. JJ and others [2011] EWCA Civ 1448

It sounds like a definition of people you should never work with. Animals are less of a problem!
Actually, I raise this as a topic because one of the oddities of Children Act proceedings is that judges very rarely meet with the children themselves. It seems strange that the person who has responsibility for deciding what is the best living arrangement for a child doesn't actually meet with that child face to face. I have known parents bring their child to court on the first occasion in the expectation that the judge will talk to him/her. It never happens that way.

Well why not? Even for adults, court hearings are traumatic and stressful events. Imagine the effect on children. They would come into an adult environment, burdened with the hopes and expectations of both parents and terrified of letting either one of them down. They would be afraid of the lash back from the disappointed parent once the court hearing was over. Given that the entire ethos of Children Act proceedings is to promote the welfare of the child, imposing stress and distress on the child would be to do the exact opposite of what the court is there for. So in general terms, children are spoken to by the Children and Family Reporter, who then reports back to the court what they had to say and what key information has been communicated by them.

However, the Court of Appeal has now suggested to judges that they may need to be rather more flexible. It arises from a case in which a mother had brought her children to England from Poland for a prearranged holiday. At the end of the holiday, she failed to return the children, despite the fact that the Polish court had ordered custody to the father years before. Shortly after withholding the children's return, she applied to the Polish court for a change of custody. The father, understandably, made an application under the Hague Convention for the immediate return of the children to Poland. The Polish court was seised of proceedings so there really seemed to be no defence to this.

At first instance, the High Court judge did indeed order their immediate return. The mother appealed. She argued that the judge had wrongly rejected an application for the children to be joined as parties on the basis of their objection to returning. The second limb of the appeal was that the judge should have taken the initiative and should have decided to see the children himself. This was because the children were being said to object very strongly to their return to Poland. 

The Court of Appeal decided that the second ground of appeal was made out. The judge should of his own initiative have decided to meet with these children. However, the clear guidance of the Court of Appeal was that the main purpose of the meeting was to enable the children to understand why the decision was being made and how their worries about returning had been taken into account. The judge would have the opportunity to see for himself whether the children objected in the way described to him. However, that was not the prime intention. 

Importantly, the court said, "The Judge's authority can be an influence for acceptance."
"These children understandably felt themselves to be vulnerable and lost in a complex legal landscape. They needed to understand that the proceedings in this jurisdiction were brought under an international instrument and were essentially summary in character. They needed to understand that they were habitually resident in Poland and that accordingly the Polish court had primary jurisdiction under Article 8 of Brussels 2 Revised. They needed to understand that any profound investigation of their future would be determined by the paramount consideration of their welfare and that the task of assessing that was for the Polish Judge. They needed to understand that their mother had initiated that process during the course of the summer holiday. They needed to understand that a summary return order might be a transient order dependent on the outcome of the mother's application for custody and relocation. They needed to be informed of the fundamental shift in their mother's case elicited by the Judge's questions."

In other words, the court didn't really question the merits of the decision itself but it was concerned that quite needlessly there might be serious disruption and distress for the children where, if someone took the trouble to explain to them just what was going on, that could all be avoided. Nightmare scenarios of protesting teenagers being bundled onto aeroplanes against their will could and should be foreseen and steps taken to prevent them happening. The court was saying that it was the judge who had the responsibility to make sure that this conversation happened. It's going to be extremely interesting to see what effect this may have on judges meeting children in the future.

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