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 court to take the course that it had done. The court had an inherent power to control its own proceedings. The fact that the child would have to be physically restrained in court provided sufficient grounds to refuse to allow him to attend.
Ewbank J said: ‘On behalf of the Official Solicitor it is said that in general terms the presence of children in court is harmful to children, that children in care proceedings, and more particularly in secure accommodation proceedings, are amongst the most damaged and disadvantaged children in our community, and that it will be of no benefit to them to sit through to the end. Moreover, it is likely to increase their sense of responsibility for what is being decided, and to cause anxiety and distress. It is said that the court should be satisfied that the interests of the child indicate that the child should be in court if there is a suggestion that the child wishes to come.
It is said in behalf of the child that the liberty of the child is being curtailed, that this is equivalent to a custodial order in a criminal court, and natural justice demands that the child should be allowed to be in court before an order is made which will have that effect. For my part I cannot see any analogy between orders made in this Division and orders made by the criminal court. The purpose of the criminal court is to deal with criminal offences committed by people or children, and one of the aims at any rate of the criminal court is to punish the perpetrators.
This jurisdiction is entirely different. It is, as the Official Solicitor said, a benign jurisdiction. It is to protect the child, sometimes from others and sometimes from itself, and in some cases it is necessary in order to protect the child and to act as a good parent would act to curtail the child’s liberty for a time. The statute which provides for this is limited in its scope; not only the court but also the Secretary of State in the case of young children has to be satisfied that secure accommodation is necessary. I am told that there are probably some thousand children a year put into secure accommodation, so that the numbers of orders made are quite substantial.
In addition to the considerations of the interests of the child, which override any other considerations, there is also the inherent power of the court to control its own proceedings, and that is relevant in this particular case at the particular time that the district judge heard the case. It was his view on the evidence he heard or the reports he had read that the child would have to be physically ‘shackled’, as he put it, in court in order to control him. This in itself would be sufficient ground in the inherent jurisdiction of the court to refuse to allow the child to be in court. One can see that the prospect of disturbance or unruliness in court, or the possibility of the child being educationally subnormal, or the child being much younger than this child, would be examples of cases where the court would not allow the child to be in court for the hearing.
The local authority, as I mentioned, has had interim care orders since the early part of this year. Accordingly the mother and the local authority both have parental responsibility for this child. Both of them take the view that this child, at that stage, ought not to have been allowed to come to court. If either of them had taken a different view, that would have been a matter which the district judge ought to have taken into account.’
Ewbank J concluded: ‘In my judgment the court in dealing with an application for secure accommodation, and probably in dealing with an application for a care order, can allow the child to be in court, but the court must always bear in mind that attendance in court is likely to be harmful to the child, and the court should only allow the child to attend if it is satisfied that attendance is in the interests of the child. Certainly where the court is of the view on the material before it that the child is likely to be unruly, the court in its inherent jurisdiction can refuse to allow the child into the court.’
Judges:
Ewbank J
Citations:
Times 13-Jul-1994, [1994] 2 FLR 1092
Jurisdiction:
England and Wales
Citing:
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 by:
Cited – In re K (A Child) FD 16-May-2011
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 . .
Lists of cited by and citing cases may be incomplete.
Children
Updated: 28 April 2022; Ref: scu.82283
