This talk, by chilren's rights expert Kate Makepeace Grieve, concerns the rules governing the assessment of children's best interests in the Family Court and how this compares with the approach in immigration law. A central theme is the importance of 'child voice' and the myriad of ways in which the Family Courts incorporate input from children affected by their decisions.

1. Voice of the child: obtaining
children’s views and best
interests decisions in the family
courts
Kate Makepeace Grieve
36 Family

2. Picture 1 here

3. Children Act 1989
Welfare of the child.
(1) When a court determines any question with respect
to—
(a) the upbringing of a child; or
(b)the administration of a child’s property or the
application of any income arising from it,
the child’s welfare shall be the court’s paramount
consideration.

4. ECHR
ARTICLE 8
Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his
home and his correspondence.
2. There shall be no interference by a public authority with the
exercise of this right except such as is in accordance with the law
and is necessary in a democratic society in the interests of national
security, public safety or the economic well-being of the country, for
the prevention of disorder or crime, for the protection of health or
morals, or for the protection of the rights and freedoms of others.

5. Borders Citizen Immigration Act
2009
55 Duty regarding the welfare of children
(1) The Secretary of State must make arrangements for ensuring
that—
(a)the functions mentioned in subsection (2) are discharged
having regard to the need to safeguard and promote the welfare
of children who are in the United Kingdom, and
(b) any services provided by another person pursuant to
arrangements which are made by the Secretary of State and
relate to the discharge of a function mentioned in subsection (2)
are provided having regard to that need.

6. December 2010 commitment by UK to give
“due regard” to the UNCRC when making
new policy or legislation

8. UN Convention
on the Rights of the Child
Article 12 (Respect for the views of the child): When adults
are making decisions that affect children, children have the right
to say what they think should happen and have their opinions
taken into account…
For this purpose, the child shall in particular be provided the
opportunity to be heard in any judicial and administrative
proceedings affecting the child, either directly, or through a
representative or an appropriate body, in a manner consistent
with the procedural rules of national law

9. Zoumbas v Secretary of SSHD
[2013] 1 WLR 3690 (SC)
Lord Hodge considered the ‘interplay
between the best interests of the child
and Article 8 ECHR’, devising a code
comprising seven principles:

10. (1) The best interests of a child are an integral part of the proportionality assessment
under Article 8 ECHR;
(2) In making that assessment, the best interests of a child must be a primary
consideration, although not always the only primary consideration; and the child's best
interests do not of themselves have the status of the paramount consideration;
(3) Although the best interests of a child can be outweighed by the cumulative effect of
other considerations, no other consideration can be treated as inherently more
significant;
(4) While different judges might approach the question of the best interests of a child in
different ways, it is important to ask oneself the right questions in an orderly manner
in order to avoid the risk that the best interests of a child might be undervalued when
other important considerations were in play;

11. (1) It is important to have a clear idea of a child's circumstances and
of what is in a child's best interests before one asks oneself
whether those interests are outweighed by the force of other
considerations;
(2) To that end there is no substitute for a careful examination of all
relevant factors when the interests of a child are involved in an
Article 8 assessment; and
(3) A child must not be blamed for matters for which he or she is not
responsible, such as the conduct of a parent.

12. Baroness Hale ZH (Tanzania) 2011 UKSC 4
“Consulting the Children”
Acknowledging that the best interests of the
child must be a primary consideration in these
cases immediately raises the question of how
they are to be discovered. An important part of
this is discovering the child’s own views.

13. Baroness Hale is a Family Judge -
High Court, Family Division 1994-99
Lord justice of appeal 1999-2003
House of Lords – only family judge 2004

14. JO and Others (section 55 duty)
Nigeria [2014] UKUT 00517 (IAC)
The duty imposed by section 55 of the Borders Citizenship and
Immigration Act 2009 requires the decision-maker to be properly
informed of the position of a child affected by the discharge of an
immigration etc function. Thus equipped, the decision maker must
conduct a careful examination of all relevant information and factors.
Being adequately informed and conducting a scrupulous analysis are
elementary prerequisites to the inter-related tasks of identifying the
child’s best interests and then balancing them with other material
considerations. - IN YOUR PACKS

15. Family Courts
Decisions made in the family courts are divided
into two main categories:
(1) financial remedies (division of assess upon
breakdown of marriage, civil partnership, or
cohabitating couples) where children are a
primary consideration (MCA 1973) but not the
paramount consideration; and

16. (2) decisions as to the welfare of children.
This falls into two parts:
(a)Private law (arguments between parents)
(b)Public law (state intervention)
Focus will be on state intervention

17. Welfare of children
In family proceedings involving children, the
Courts must consider the welfare of a child as
of paramount concern. The child’s welfare is
their priority.
Wishes and feelings of a child are not
determinative.

18. Welfare Checklist
When the family court is making a decision on
matters that will affect a child, the courts are
required to look at the welfare of the child as
the paramount consideration. The welfare
checklist consists of seven statutory criteria that
the courts must consider under the Children Act
1989 when reaching its decision in cases
involving children.

19. The seven criteria set out in the welfare checklist under s1(3)
Children Act 1989 are:
- The ascertainable wishes and feelings of the child concerned
- The child’s physical, emotional and educational needs
- The likely effect on the child if circumstances changed as a
result of the court’s decision
- The child’s age, sex, backgrounds and any other
characteristics which will be relevant to the court’s decision
- Any harm the child has suffered or maybe at risk of suffering
- Capability of the child’s parents (or any other person the
courts find relevant) at meeting the child’s needs
- The powers available to the court in the given proceedings

20. Applying the checklist
The weight of the s1(3) checklist factors will
very from case to case. What is important
for the judge to demonstrate is that s/he had
the relevant factors in mind and approach is
compatible with the law

21. The children are parties to proceedings with
separate representation.
Representation

22. Guardians
The child or sibling group is always legally
represented by a solicitor who receives
instructions from the child directly if
competent. More often it is through a court
appointed Guardian. Guardians work for
CAFCASS

24. The CAFCASS website has a section for children who are subject to proceedings to read.
It is important for children to understand the decisions made for them
How Cafcass helps
The court will ask a Cafcass worker (sometimes called a 'Children's Guardian')
to help them decide what is best for you.
They will do this by
- looking at what the social worker is planning for you and telling the court
what they think needs to happen next
- make sure you have a special legal adviser, called a solicitor
- in most cases, talking with you to find out what you think and how you feel
about everything
- in most cases, speaking to other people who care about you, like your
parents, family and sometimes your teachers and social worker
- telling the court what they think will help you be kept safe and well

25. The court may be assisted in making best
interests decisions by a report from an
independent and jointly instructed expert.

26. Independent expert
Child and adolescent psychologist
Child and adolescent psychiatrist
Paediatrician or other medical expert
Independent Social Worker
provides a report to the court and attend to give evidence
Costs shared between the parties: LA, parents, child
through Guardian. Court must find it ‘necessary’

27. Visit the judge
Older children can visit the judge with their
solicitor or Children’s Guardian. This is not
an exercise in evidence gathering.

28. Give evidence
There is no presumption against children
giving evidence. It must be in their best
interests. The court can put any measures in
place to ensure the child can give his/her
best evidence.
See - Family Justice Council Guidelines in relation to children giving
evidence in family proceedings (2011)

29. These decisions must be made within 26
weeks of issuing proceedings. The time to
conclude a case has reduced substantially
as a result of the President’s Guidance 2014
enshrined in a Practice Direction 12A –
Guide to Case Management

30. Differences?
Statutory aim
Paramount consideration
Guardian
Experts
Funding
Time

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