Ditch the 'soulless initials' and give children a voice
Judges hold the key to unlocking the potential of children in the family justice system, writes Matthew Rogers
Baroness Hale of Richmond has two ‘bees in her bonnet’. The first is legislation or reports that refer to children as ‘it’, which, she says, constitutes an ‘abuse of childhood in the English-speaking world’. The second buzzy bee are judgments that anonymise children with ‘soulless initials’.
In contrast to other judges, Lady Hale uses made-up names for the children that appear in her judgments and, speaking at Monday’s World Congress of Family Law and Children’s Rights in Dublin, she encouraged others judges to do the same. ‘Try and make it a plausible name, right gender, right ethnicity, but not their own, then the child really leaps off the page in a way they don’t if they are just an initial,’ she said.
Lady Hale’s bugbear with how a child is described in a judgment is just the tip of the iceberg when it comes to key changes she believes will ensure children are treated as people in their own right in court.
The Supreme Court’s only woman justice has been a vocal supporter for greater participation of children in family court proceedings and used Monday’s address to stress once more the importance of allowing them to give evidence. ‘If they can do it in the criminal courts, why can’t they do it in the family courts?’ she asked, adding that if a child was to give evidence, it should be done in a way that ‘gets the best out of the child, not the worst’.
‘Lawyers are sometimes wanting to get the worst out of the witness, aren’t they?’ she queried. ‘Some would say that’s what lawyers are for.’ But Lady Hale told delegates it would be a ‘good thing’ if, when talking to children in private for family proceedings, judges could see children as ‘real human beings’ and that the judge could explain what was going on to the child, which would be ‘completely unobjectionable’.
In his 16th View, the president of the family division, Sir James Munby, lamented the ‘much too slow’ progress being made by ministers and officials in accommodating the needs of vulnerable witnesses and children in the family justice system. ‘These are problems that can no longer wait,’ he wrote. ‘I do not want to have to start 2018 with a further call for action.’
In 2015, the final report of the vulnerable witnesses and children working group was published. Set up by Munby P and chaired by Mr Justice Hayden and Ms Justice Russell, the group concluded that directions enabling the criminal court to hear direct evidence of children could provide the basis for practice directions in family proceedings.
The report recommended changes to the Family Procedure Rules 2010 (FPR) to emphasise the importance of the role of the child in proceedings. While not carried through, the Family Procedure Rules Committee (FPRC) later recognised the need for greater participation of the child through a new draft rule Part 3A FPR and new draft practice direction 3AA.
At a FPRC meeting on 6 March this year, Her Honour Judge Raeside said it was ‘imperative’ that further progress was made and questioned whether there was a timetable for in place. A representative from the Ministry of Justice told her that the Prison and Courts Bill had taken priority due to ‘competing demands on their time’ and that a revised draft of the direction that took into account the available resources would now be required. Acting FPRC chair Mrs Justice Pauffey said the draft remained ‘a very high-priority item of work’ and ‘should be taken forward in the immediate future’.
All is not lost, however. Lady Hale is widely tipped to take over as president of the Supreme Court when Lord Neuberger retires later this year. Her influence, alongside that of Munby P, could prove critical in bringing about meaningful change to the family justice system. Only then will children be seen as ‘real human beings’.
Matthew Rogers is a legal reporter at Solicitors Journal
