This series of four posts started at the end of March and concludes with this post and with the related subjects of courts listening to children and judges writing to children about their case. For earlier posts, see:

  1. Can the Supreme Court depart from its previous decisions?
  2. Participation of children in cases which affect them
  3. What is binding in law, and what ‘citable’?

Development of the law on listening to children is recalled in a recent substack post, Gillick and Scarman (14 August 2025), where Joshua Rozenberg explains his part in some of the history which lead to the final speeches in the House of Lords in Gillick v West Norfolk and Wisbech AHA [1985] UKHL 7, [1986] 1 AC 112, [1986] 1 FLR 224 (17 October 1985), almost exactly forty years ago.

A narrow – perhaps technical – view of Gillick is that it established no more than the right of a child (ie a person under the age of 18) of age and understanding to give a valid consent to medical treatment decided nearly forty years ago. A wider view can be said to have been developed since 1985 by the common law and convention law.

Lord Scarman’s decision-making in Gillick, in which he was joined by two fellow law lords which then formed the majority of that five-judge court, laid the ground for child law reforms through the later 1980s. And it echoes still today. Gillick informed much of the thinking behind the Butler-Sloss Cleveland Report (1987) and the Children Act 1989. The later 1980s was heady times for children lawyers.

A note of caution on Gillick was sounded by Sir Andrew McFarlane P in the recent Re S (Wardship: Removal to Ghana) [2025] EWCA Civ 1011 (29 July 2025) – where S warded himself, having been ‘tricked’ by his parents into going to live in Ghana – when Sir Andrew explained the narrow view of Gillick:

[45] … The [case] is limited to the ability of a young person to give autonomous valid consent to medical treatment … for the benefit of medical practitioners who require valid consent for a proposed procedure. Lord Scarman was plain in limiting the context of the principle: ‘I would hold that as a matter of law the parental right to determine whether or not their minor child below the age of 16 will have medical treatment terminates if and when the child achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed. It will be a question of fact whether a child seeking advice has sufficient understanding of what is involved to give a consent valid in law.’

‘Parental right yields to the child’s right to make his own decisions’

In Gillick Lords Fraser and Scarman, who gave the main speeches explained the development of a mature child’s understanding. Lord Scarman’s opinion includes (at [1986] 1 AC 112 at 186):

“The underlying principle of the law … is that parental right yields to the child’s right to make his own decisions when he reaches a sufficient understanding and intelligence to be capable of making up his own mind on the matter requiring decision….”

Sir Andrew’s assertion deals with an example, arising from the Gillick case, which Lord Scarman gives as to medical treatment. It may be correct on a narrow interpretation. But the decision of their lordships goes much wider as the quote from Lord Scarman immediately above shows; and as history has shown since 1985. Gillick confirmed at the highest level that “the horrendous Agar-Ellis decisions (below) … of the late 19th century asserting the power of the father over his child were rightly remaindered to the history books” (at 183) in 1970. As Lord Scarman explained at 186:

“Lord Denning MR captured the spirit and principle of the law when he said in Hewer v Bryant [1970] 1 QB 357 at 369: ‘I would get rid of the rule in Re Agar-Ellis 24 ChD 317 and of the suggested exceptions to it. That case was decided in the year 1883. It reflects the attitude of a Victorian parent towards his children. He expected unquestioning obedience to his commands. If a son disobeyed, his father would cut him off with a shilling. If a daughter had an illegitimate child, he would turn her out of the house. His power only ceased when the child became 21. I decline to accept a view so much out of date. The common law can, and should, keep pace with the times…'”

Lords Denning and Scarman were advocates for the need of the common law to move with society and with the times, save where statute said otherwise. And so it must be with child development. Thus in 1989 two child law developments – one statutory in Children Act 1989 (CA 1989), one in convention law (United Nations Convention on the Rights of the Child 1989: still not formally given the force of law in the United Kingdom) – fully reflected the spirit of Gillick.

Children Act 1989 and the broccoli boy

First was the Children Act 1989 which, on this subject, included that where a court was required to make a decision on the welfare of a child (C) it must (CA 1989 s 1(3)(a)) –

“… have regard in particular to (a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding) …”

CA 1989 provided a menu of “section 8” orders to be made in private (as opposed to local authority proceedings): where C was to live, with whom C should have contact and when, orders to deal with specific questions (“specific issue orders”) and orders to prevent certain steps (“prohibited steps orders”). And the Act contemplated that C might make application. In such a case CA 1989 s 10(8) said:

“(8) Where the person applying for leave [nowadays called “permission”] to make an application for a section 8 order is [C], the court may only grant [permission] if it is satisfied that [C] has sufficient understanding to make the proposed application…”

Thus did, and still does, CA 1989 recall that it is a child’s understanding – Lord Scarman’s “sufficient understanding and intelligence” (see quote above) – which dictates the first stage in a process which may lead to what C is asking the court to do. In CT’s case (see below) it was to move from her adoptive family in the west of England back to her natural family in Wales.

Such was the novelty of s 10(8), called by journalists “divorcing a child’s parents” in 1993 that when my 1993 client, Claire T went to the Court of Appeal in Re T (A Minor) (Child: Representation) [1994] Fam 49, [1993] 3 WLR 602, (sub nom Re CT (A Minor) (Wardship: Representation) [1993] 2 FLR 278) she was the subject of press reports, an article in Marie Claire and a leading article in The Guardian. The Court of Appeal reversed a High Court judge’s decision that Claire must be made a ward and be represented by the Official Solicitor (ie not by me).

At that time I was teaching the new law. My then eleven-year-old son asked me what I was teaching. I told him it was about that a child could tell a judge what they wanted. He brightened. His response was immediate: “I can say I don’t want broccoli…”

United Nations Convention on the Rights of the Child 1989

None of this says that it is the child’s views which determine any outcome, only that their views must be “given weight” in accordance with their “age and maturity”. A similar approach to Gillick therefore runs though the parallel to CA 1989, United Nations Convention on the Rights of the Child 1989. Its Art 12.1 says:

“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.”

Unlike European Convention on Human Rights 1950 and the Hague Convention (Convention on the Civil Aspects of International Child Abduction) – respectively by Human Rights Act 1998 and Child Abduction and Custody Act 1985 – the 1989 UN Convention has not statutorily been given force of UK law; and the common law has been remarkably slow to catch up.

In many ways the high point of the Convention was Re D (A Child) (International Recognition) [2016] EWCA Civ 12, [2016] 1 WLR 2469, [2016] 2 FLR 347 (27 January 2016) where the Court of Appeal considered the right of a child “to express [his] views freely”.

An opportunity to be heard

In Re D Ryder LJ considered the extent to which Art 12.1 could be said to be representative of “a fundamental principle” of English and Welsh law in the context of an EU provision equivalent to Art 12.1. In Romania a seven-year-old had not been given the opportunity to be heard by the court before it made a decision as to his future. CA 1989 s 1(3)(a) (cited above) alongside Art 12.1 was, said, Ryder LJ, “a fundamental principle” on which a court’s discretion is founded and which no “parent can seek to avoid” (at [38]).

Section 1(3)(a) goes further than “a check-list factor”. It is “an example of domestic jurisdiction giving force to a fundamental principle of procedure” (at [40]):

“[41] … In every case, the court is required to ensure that the child is given the opportunity to be heard. That means asking the questions, “whether and if so how is the child to be heard”. There are a range of answers, many of which were foreshadowed in Re D (Abduction: Rights of Custody) [2006] UKHL 51, [2007] 1 AC 619, [2007] 1 FLR 961 (16 November 2006). It is not the answer that is key to the question before this court but the fact that the question must be asked…. Furthermore, the provisions of Art 24 of the Charter of Fundamental Rights and Freedoms of the European Union are directly applicable (see above) with the consequence that the court is required to ask the question I have identified.”

The child’s right to an opportunity to be heard is a “child-centred issue” said the judge. It “ensures that the child is engaged in the process and is accorded due respect in that process” (at [43]).

“[44]   That is rightly an acceptance that the rule of law in England and Wales includes the right of the child to participate in the process that is about him or her. That is the fundamental principle that is reflected in our legislation, our rules and practice directions and our jurisprudence. At its most basic level it involves asking at an early stage in family proceedings whether and how that child is going to be given the opportunity to be heard. The qualification in s 1(3)(a) of the CA 1989 like that in Art 12(1) of the UNCRC 1989 relates to the weight to be put upon a child’s wishes and feelings, not their participation” (italics added).

Judges writing to children

So much for judges listening to children. What of judges communicating their decisions to the children involved in proceedings? Writing to children – A toolkit for judges (February 2025) is published by the Family Justice Young People’s Board and the President of the Family Division. The Board commend the “toolkit” with the following words:

“The decisions the family courts make are a big deal. They can last forever. Even if the decision made seems routine to a judge, our whole life and future is affected by it. These letters give judges a chance to explain the reasoning behind their decisions and show they care.”

One Board member (at p 6) commented:

“I think a letter [from the judge] would have completely changed my life. If I’d been given the proper information I would have been able to make decisions. Having that piece of paper can finalise so many things. Even if you don’t want to look at it then, you can go back and look at it later.”

Pages 7 to 12 of the “Toolkit” contain a short series of aspects to include in most letters. Does the child know what a judge is and what his or her job is? What is the judge’s role to be in the child’s life. For example, says the toolkit; eg at p 8:

“Explain the purpose of the letter – are you writing to explain the final decision, or to provide an update on the case? Is the letter meant for the child or young person now, or is it something they may want to read later (e.g. in cases involving very young children)?”

Or (at p 12):

“Think carefully about the language you choose, especially when describing people’s feelings – try to use factual rather than value-laden language and avoid making assumptions about how a child or adult might feel about the decision. It is also important that issues are explained in a way that does not leave a child feeling blamed or responsible for adults’ emotions.”

Adopt a language of facts

I have started trying to write about law for school-children. I learned some valuable advice from the toolkit (eg at p 13) for a non-judicial context, especially as to short paragraphs, short sentences and clear writing:

“Keep [any letter] short – short sentences and very short paragraphs can help make text more digestible. However, sometimes you might need to use more words to explain something clearly, rather than, relying on a shorter but less accessible word or phrase (such as ‘position’, ‘secure’ or ‘placement’ for example).”

Newcastle CC v JK (Care Proceedings: International Abduction: Evidence from Abroad) [2025] EWHC 1767 (Fam) (11 July 2025) provides a recent example of a letter from Poole J to one of three brothers who are now in local authority (LA) care. Each child is placed separately. LA seeks care orders. Their mother wanted return of the children. The children’s guardian supported LA even though the children said they want to return home to live with her. At their request the judge met the two older boys individually during the course of the hearing. The judge’s letter to the oldest boy – a little austere, perhaps? – included:

“I have decided that you should not return to live with your mother. It would not be safe for you or any of your brothers. It would not be in your best interests. I have decided that it is best for you to live with long term foster carers. Each of your brothers will also live with long term foster carers. Your younger brothers will live separately from you but social workers will try to help you live together with [name of brother] although you have fought in the past. You will be able to spend time together as a group of brothers once a month, and you will each be able to spend time with your Mum once a month. Your father will be able to write to you and maybe, over time, you can get to know him again.”

In Writing to children: new guidance (in Family Law, July 2025, at p 885) Maria Henty and Victoria Ellis make the point, so important from the child’s point of view (at p 888) that:

“When set against the backdrop of parental conflict and/or extensive professional involvement and/or protracted proceedings, the significance of feeling listened to for a child should not be underestimated.”

Weight to be given to a child’s views

The law in 2025 by no means stops at Sir Andrew’s statement in Re S (Wardship: Removal to Ghana) [2025] EWCA Civ 1011 at [45] (quoted above) as he goes on to affirm:

“[47] … The wishes and feelings of a young person who is so regarded are likely to attract more weight, and, depending on the issue in question and the circumstances of the case, in some cases significantly more weight, than that attaching to the wishes and feelings of a younger or less mature child. But, as a matter of law, it is wrong to assert [as it had been for S in that case] that the wishes and feelings of a Gillick competent young person can only be overridden if the court finds clear and compelling reasons for doing so. As with each of the other elements [in CA 1989 s 1(3)] in any holistic welfare balance, all will turn on the weight that is attributed to each of the relevant factors.”

Sir Andrew stresses the importance of, and the weight to be given to, a child’s views. Gradually the law is moving in that direction, perhaps. In Re S, as Sir Andrew put it, the judge below was conducting an audit of S’s parents’ discharge of their parental responsibility; but in so doing, said Sir Andrew, the judge conflated that audit with the welfare of S.

Re S was a wardship case, but Sir Andrew’s comment applies to any children proceedings:

“[35] … Whilst the views of a ward’s parents may be part of the evidence in the case, and may be relevant to the welfare exercise, as a matter of law they cannot have any impact upon the judge’s task in determining the outcome in accordance with CA 1989, s 1. There is only room for one principle in this context, and that principle is that the child’s welfare must be afforded paramount consideration. There is no parallel or competing principle that the wardship court may only intervene if the parents have in some manner exceeded the ambit of their parental responsibility, or have come to a decision which the court holds to be wrong.”

And so the very recent Re S clearly recalls the opinion of Lord Scarman, and of the majority in the House of Lords in Gillick. The importance of the welfare principle in dealing with a child of “intelligence and understanding” is paramount.

Featured image: Photo by Andrey K on Unsplash