Helen Stalford, Kathryn Hollingsworth and Stephen Gilmore (eds), Rewriting children’s rights judgments: from academic vision to new practice (Hart publishing, 2017)
Reviewed by David Burrows
Judgments from a children’s perspective
The authors describe their aim in Rewriting children’s rights judgments as of revisiting existing case law and redrafting judgements from a children’s rights perspective. In doing this the editors – Helen Stalford, Kathryn Hollingsworth and Stephen Gilmore – have written a lengthy and carefully argued introduction, explaining the legal background to children’s rights. This is followed by their variety of co-authors reviewing cases and then re-writing the judgments in each case. Cases come from different parts of the world.
Each case looks at children’s rights from points of view and in legal contexts which are often well removed from conventional children law. Subjects include children and medical decision-making; public authorities; criminal justice and international movement. The authors make it clear that children’s interests may be directly concerned in administrative (eg planning) decisions (and see UN Convention references below).
The book’s main objects are to stress the need to incorporate into judicial decision-making a legal voice for children, denied to them in other contexts (private and civic); and to focus on children as “central legal subjects” in the process of decision-making. In so doing the authors have tried to “produce authentic alternatives that could pass muster” as the original judgments. Even though children’s interests are treated by the court as separate, it is still often the case, the authors feel, that priority is not given to those interests in the decision.
So why rights’ judgements? The discipline of rewriting judgments in this context emphasises the importance of rights, say the editors; and it recalls that children’s rights “still struggles to gain traction in political discourse and in legal practice”. The judge’s role remains critical in advancing children’s rights and in keeping the executive and legislature up to the mark in developing those rights. The authors consider the extent to which judge’s properly take account of children’s “best interests” as a distinct right in the proceedings (and see reference to UN Convention Art 3 below). Do judges, the authors ask, obscure this assessment of rights by the “narrower paternalistic interpretation” and “lazier” judicial approach – as they see it – of a children’s welfare assessment?
A selection of cases
RCB as Litigation Guardian of EKV, CEV, CIV and LRV v The Honourable Justice Colin James Forrest  HCA 47; 247 CLR 304 (High Court of Australia) is considered under “Children’s Rights and International Movement”. Separate representation for children in cases under the Hague Convention on Civil Aspects of International Child Abduction (1980) arose, in this Australian case. Representation in court proceedings is regarded as a fundamental right (though for adults it is increasing whittled away under successive legal aid legislation since 1999); and the authors stress this fundamental point. For children this will vary according to jurisdiction; and in England and Wales it is normally – though not invariably – by court welfare officer. In RCB no mention is made of the UN Convention on the Rights of the Child 1989; and the court seems to take the view that no legal right of a child is involved in the decision. In contrast the rewritten judgment takes on directly the extent of children’s rights and of the impact of the UN Convention on the Rights of the Child 1989 (“UN Convention”; see especially Art 12 cited below).
The role of the child’s independent lawyer in abduction proceedings is considered. To what extent must a lawyer act on the child’s instructions? The judge holds – based on Australian state legislation – that the lawyer is not required formally to represent the child; but to “represent the interests of the child” (para 19 of the judgment): a position which is formally in contrast to the position in English care proceedings (Family Procedure Rules 2010 r 16.29(2)) though for doubts on this point, see Re W (A Child) (Care Proceedings: Child’s Representation)  EWCA Civ 1051,  1 WLR 1027).
Re P-S (Children) (Care proceedings: Right to give evidence)  EWCA Civ 223,  1 WLR 3831 is an English Court of Appeal case where a 15-year-old was refused permission to give evidence via video link. The decision contrasts with the view of the Supreme Court as to children giving evidence (see per Lady Hale in Re W (Children) (Abuse: Oral Evidence) UKSC 12,  1 WLR 701 and more recently Re E (A Child) (Evidence)  EWCA Civ 473,  4 WLR 105,  1 FLR 1675). The re-written judgement contrasts from the original, “leading to a more young person centred outcome” and with the child being given permission to give evidence. His rights are given more respect.
Collins v Secretary of State for Communities and Local Government  EWCA Civ 1193;  PTSR 1594 recalls that UN Convention Art 3.1 states:
“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”
Further, it is worth reflecting that UN Convention Art 12 requires that children “have the opportunity to be heard in … administrative proceedings”. Collins concerned an extended family of Irish Travellers, which included 39 children. It was their appeal – ultimately, but after long legal proceedings – against refusal of a planning application to remain on land they lived on. As the commentary points out, the case established that the best interests criterion (Art 3.1 and ZH (Tanzania) v Secretary of State for the Home Department  UKSC 4,  2 AC 166) applies to planning decisions where children – as will so often be the case – are involved (as the judgment stresses at para 9).
The right to express views
UN Convention Art 12 says, in full:
“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.”
As this book shows, “in matters affecting the child” – and especially in “administrative proceedings affecting the child” – English law has a long way to go. There is no clear basis in the Children Act 1989 (only s 41 deals with children representation at all; and that mostly by childrens’ guardians in care proceedings); and Family Procedure Rules 2010 Pt 16 – which deals with “Representation of children…”.
A starting point for law reformers surely must surely be to be clear with children of “age and maturity” how they are to know when they have rights; when they are entitled to express their views to the court or public body, and by what means they do so. That question could surely be a starting point for those bodies – planners, courts, health authorities – who are expected to consider children’s views in their decision-making?