In a characteristically clear and colourful speech, entitled ‘Are we nearly there yet?’ the deputy president of the Supreme Court has called for the family courts to listen to children.
Addressing the Association of Lawyers for Children at their annual conference in Manchester, she looked back to a speech she had given to the same group twelve years previously: in 2003, Baroness Hale had put forward her arguments for listening to children as firsthand witnesses. She observed that there had been a range of reactions to the idea of involving children more closely, and that the family courts had been reluctant to do so. She also acknowledged that there were a variety of ways in which children could have their voices heard and that it was unclear how best to go about it.
During her speech, Baroness Hale addressed the disparity between the family courts and the criminal courts; in the latter there are tens of thousands of child witnesses in criminal cases (the statistic she gave is 33,000 cases from 2012) whereas the figures for child witnesses in the family courts is unknown.
The criminal courts have been forced, she asserted, to find ways to accommodate children and other vulnerable witnesses because the injustice of such vulnerable members of society suffering abuse with no legal redress was too great to tolerate.
The criminal courts have introduced ‘special measures’ for enabling children to give evidence, such as via video link. Why, she asked, should the family courts not do the same?
She finished her talk on an open-ended note, somewhat unsure of where the family courts might be heading in this regard, due to the variety of opinion on the matter – even among her colleagues in the Supreme Court. But she emphasised the important point that listening to children and taking into account their wishes and feelings does not mean that their wishes will dictate the eventual outcome.
Baroness Hale issued a compelling argument for change, while detailing some of the complex reasons why others in the family division have reservations. It is clear where she stands.
As she succinctly noted:
“I am old enough to remember care proceedings under the Children and Young Persons Act 1969. The child had physically to be brought before the court, unless he or she was five or under. Children of course are present at children’s hearings in Scotland. We know from cases in the European Court of Human Rights that it is standard practice for them to be present at least some of the time in children’s cases in Germany. If all these courts can cope, why can’t we?”
Baroness Hale’s speech can be read in full here.
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