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Every Child Matters – NOT. Pt 2

February 2, 2010

Something every child living in the UK (and everywhere) should have is the protection of fair laws and access to justice. In the 1990’s this seemed to have been achieved with the implementation of the 1989 Children Act, the creation of family courts, specialist Judges, guardians ad litem and accredited family and children’s solicitors. But now the judiciary must ‘come off the bench’ and speak out about the ‘parlous state of family law in 2009’, says Lord Justice Wall (no relation). Well, he certainly did so in his keynote address in November to the Association of Lawyers for Children:-

However, a more serious problem is the fact that guardians are not allocated when they should be, and that important decisions are made about children without the guardian’s input. I was shocked during the summer to learn both of the number of care cases in which a guardian had not been allocated, and the fact that insistence on the CAFCASS monopoly inevitably meant that guardians would simply not be timeously allocated. The President, in this year’s Hershman Levy Memorial Lecture ran into criticism when he announced a system of “duty” guardians to plug the deficiencies in the system. But who can blame him? He is doing what anyone in his position would do. That it is not acceptable is not his fault nor his responsibility. The failure to protect children through the sensible operation of the guardian system seems to me to be one symptom of a much wider malaise. …..

In the 2000’s there has been a long slow and continuing backsliding from the heady days following the 1989 Children Act. Civil (including Family) Legal Aid is being capped, Cafcass cannot cope, and there are too few specialist Judges, lawyers or guardians. Delays are growing and the government is now proposing reducing access to the courts for arguing parents and diverting them to (possibly compulsory!!) mediation. Ed Balls says:

More than 50,000 cases are referred to the Children and Family Courts Advisory Service every year involving parents who are fighting over access rights to their children. We want to look at how to get more of these cases out of court. They cost us £800 million a year on private law disputes about custody – that’s expensive. It takes a long time, it can be antagonistic and painful. It’s far better to get them out of the courts initially.

So, where do the children fit in this mediation process? How do they get their voice heard by a 40 hours trained mediator?

I think Ed Balls and Jack Straw need to re-read the Convention on the Rights of the Child particularly:-

Article 12

1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

2. 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.

I don’t see anything in the convention saying the rights of a child are subsidiary to cost considerations, in fact the convention in Article 3 says

In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

It seems to me that the UK is falling far short of the ringing words in the preamble to the Convention, at least as far as children are concerned:-

that … recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,

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