Neither seen nor heard: why the voice of the child is still not loud enough in family proceedings following the missed opportunity of Re W
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I’m a 22 year-old Kurdish-Turkish-Brit living near Halifax, West Yorkshire. I decided to pursue the topic of the child’s voice in family proceedings after I attended a mini-pupillage in my first year of Undergraduate and witnessed a child meeting a judge in court. It became strikingly apparent that care proceedings centre completely around the child and their best interests, yet children are rarely present in proceedings, and rarely aware that there are a group of adults determining their future.
After researching on Re W, the case which removed the rebuttable presumption against children providing evidence in family proceedings, it was clear that case law since Re W had not followed the aspirations which Re W sought to achieve. Later case law indicate that the best interests of the child are actually often what the judiciary believe are the best interests for that child, creating a disconnect between the views of the child and society’s perspective towards hearing the child’s voice.
Although there are promising cases which indicate Re W resulted in a positive change regarding the attitudes towards the child’s voice in proceedings, it is difficult to remain optimistic. I currently paralegal for a solicitors firm which solely practises in family public law and care proceedings. Though I do see Re W regularly discussed in proceedings, these discussions rarely advocate for the child to be both seen and heard.
-Celine D. Kart, Author
Introduction
My Dissertation, entitled 'Neither seen nor heard, why the voice of the child is still not loud enough in family proceedings following the missed opportunity of Re W' focuses specifically on hearing the voice of the child in the legal arena, both physically in court and in wider society. It assesses the inadequacies of Child Law and the incompatibility of the English and Welsh position of the child in court with international human rights obligations, using Re W [2011] as its focus.
Before Re W, there was a rebuttable presumption against the child's participation in court. Re W supposedly removed the presumption against hearing the child in court, though, in reality, and through inspection of later case law, little has changed and the judiciary are reluctant to allow the child's participation in proceedings which directly concern them. Despite the removal of the presumption, I argue the child remains unheard, both in court and in society, and thus the Supreme Court should have prompted Parliamentary reform of the Children Act; ensuring the child would be heard whilst removing domestic and international incompatibility.
Chapter one considers the justifications, legal and philosophical, for involving the child in proceedings. It also focuses upon the Children Act's ethos concerning the Welfare Principle, using pre-Re W case law as a backdrop. Chapter two considers the facts and judgment of Re W and latter commentary and case law, concluding that the child remains unheard. The final chapter proposes three reform options which the Supreme Court could have initiated in Re W, or since, but did not, and thus the child ultimately remains unheard.
