The court was asked whether K, a 13-year-old girl, should attend the hearing of an application by her local authority to keep her in secure accommodation for three months. She wanted to be at the hearing, but the local authority opposed her attendance on welfare grounds.
Held: The child should be allowed to attend: ‘the evidence suggested that respecting K’s wish to attend court was not likely to lead to harm, and might do some good.’ Things had changed since the case of re W. The court should now consider the following factors: ‘(1) The age and level of understanding of the child. The claims of children of secondary school age will be stronger than those of primary school age, but what matters is whether the child has a sufficient level of understanding of the decision that the court has to make, and the way it will go about making it.
(2) The nature and strength of the child’s wishes. The court will need to consider whether a refusal to allow attendance will create or increase a sense of alienation in the child. A decision made in the child’s presence may be one that he or she will find easier to understand, and where necessary respect and obey.
(3) The child’s emotional and psychological state. If there is clear evidence, probably in the form of expert advice, that attendance is likely to lead to harmful or unpredictable consequences for the child’s emotional condition, the child’s wishes may have to be overruled.
(4) The effect of influence from others. The court will be on its guard against signs of manipulation of the child. Special pressure from any quarter may be magnified by attendance and make it inappropriate.
(5) The matters to be discussed. Rule 12.14 requires the court to have regard to these. In proceedings concerning separation from family or placement in secure accommodation, the matters for discussion are of such high importance to the child that an expectation of involvement may be no more than a natural response.
(6) The evidence to be given. Again, the rule also requires the court to have regard to this. In cases where the evidence is likely to be particularly difficult or distressing, or where it concerns matters that the child should be protected from hearing, attendance can be denied on the basis that it will be harmful. In other cases, the evidence will be no more than a rehearsal of what the child already knows.
(7) The child’s behaviour. In secure accommodation cases, the risk of fight or flight may be so high as to make attendance unwise. On the other hand, the fact that children in secure accommodation will inevitably have to be guarded cannot in itself be a reason for proceeding in their absence. As to the chance of disruption in court, the safety of other court users must be considered. Children who are in secure accommodation often find their way there after violence at home or at school, and in the secure unit itself. The fact that trouble at court cannot be ruled out will be a factor, but may not be a conclusive reason for refusing attendance. Criminal courts routinely accommodate people who pose a risk to the public, and family courts are used to dealing with situations of high emotion.
(8) Practical and logistical considerations. These will particularly come into play in secure accommodation cases. There are secure units throughout the country, and a child may be placed a great distance from the relevant court. The length of the journey, the amount of time the child will be out of placement, and the cost of attendance where supervision is required may also inform the decision. However, the court will be slow to refuse to allow a child to attend for such reasons alone, unless it has exhausted possible alternatives. The availability of a video link in or near the placement should at least be considered, consistent with the Public Law Proceedings Guide to Case Management (paragraph 24) which encourages the court to make full use of technology.
(9) The integrity of the proceedings. The court always retains the power to manage proceedings in a way that achieves overall fairness. Other considerations, such as the interests of other parties, may influence decisions about a child’s attendance.’
Peter Jackson J
[2011] EWHC 1082 (Fam), [2011] 2 FLR 803, [2011] 2 FLR 813
Bailii
Children Act 1989 25 95, Family Procedure Rules 2010 12.14
England and Wales
Citing:
Cited – In Re W (A Minor) (Secure Accommodation Order: Attendance At Court) FD 13-Jul-1994
A 10 year old child may be present in court on an application relating to him in exceptional circumstances.
Held: The child’s appeal was dismissed. Natural justice did not demand the child’s presence in court, and that the rules allowed the . .
Cited – Mabon v Mabon and others CA 26-May-2005
In the course of an action regarding their residence arrangements, the older children of the family sought an order to be allowed separate legal representation, and now appealed a refusal.
Held: The rights of freedom of expression and to . .
Cited – Re C (A Minor) (Care: Child’s Wishes) FD 1993
Waite J discussed the propriety of a 13 year old attending the family proceedings court in a care application, saying: ‘I think it would be a pity if the presence of children as young as this at the hearing of High Court appeals from magistrates in . .
Cited – In re W (Children) (Family proceedings: Evidence) (Abuse: Oral Evidence) SC 3-Mar-2010
The court considered the approach to be taken when considering whether to order a child’s attendance at court in care proceedings. It was argued that the starting point of assuming that a child should not attend, failed to respect the human right to . .
Cited – In Re M (A Minor) (Secure Accommodation Order) CA 15-Nov-1994
On making a secure accommodation order, the welfare of the child is a relevant but not the paramount consideration. The Court referred to the responsibility of reaching ‘so serious and Draconian a decision as the restriction upon the liberty of the . .
Cited – In Re AS (Secure Accommodation Order: Representation) 1999
Children aged 15 and 12 were present in court when a secure accomodation order was made. . .
Lists of cited by and citing cases may be incomplete.
Children, Litigation Practice, Human Rights
Updated: 11 November 2021; Ref: scu.439739