England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SWANSEA CIVIL JUSTICE CENTRE
HER HONOUR JUDGE ISABEL PARRY
SA10C01648

		Royal Courts of Justice Strand, London, WC2A 2LL
		21st March 2013

The Rt Hon. Sir Alan Ward:

1. The appellant, M, was barely 15 years old when, having earlier been joined as a party to the care proceedings brought by the Local Authority against his Mother for care orders in respect of himself and his younger half-brother, he applied through solicitors and counsel separately representing him for leave to attend court to give evidence in support his case to return to the care of his Mother because "he does not feel that the strength of his feelings [are] being sufficiently understood and wishes an opportunity to attend before the learned judge to express himself in person in his own words so that his case is fully advanced." On 21st November 2011 Her Honour Judge Parry sitting in the Swansea County Court dismissed that application. On 24th November 2011 she ordered that both boys be placed in care. M appeals against both orders with permission granted by Thorpe LJ.
2. Mr David Blake, counsel appearing on his behalf, both here and below, submits that "this case raises a novel point of principle as to whether a young person who has been afforded full independent party status should be heard orally as any other party would "fairly" expect to be and a general point of interest as to what is the right test for whether a child should be heard on questions of wishes, feelings and indeed future intentions when they are competent to express them." He goes further and submits that "M does have a 'right' to give evidence or there is at least a presumption in favour." In the appeal against the care order "the general point … is essentially should the elements of the welfare checklist be weighted with a rebuttable presumption in favour of wishes and feelings being complied with, where the young person is fast approaching majority?"

The background

3. M was born on [a date in] 1996 in Romania of Romanian parents. The detail of his early life is obscure. He and his Mother eventually settled in the Republic of Ireland and he has since been granted Irish citizenship. Little is known about his father who has played no part in the proceedings at all. When in Eire Mother met Mr S, a Nigerian citizen whose immigration status in Eire is a little uncertain. A was born of this relationship on [a date in] 2011. He too is an Irish citizen.
4. The Mother and her sons came to Wales in September 2009 in order, she said, to pursue a course of further education. Perhaps the family had already come to the attention of the Irish Social Services. The family was soon drawn to the attention of the Welsh Local Authority Social Services which did not please the Mother. On 28th May 2010, while the children were in school, the Mother attempted to leave Wales for Eire without having made proper arrangements for the care of the children. She was arrested and charged with neglect though eventually acquitted. The children were received into care and placed with foster parents. An application for a care order was issued on 24th June 2010 and a guardian duly appointed to both M and A. Contact broke down because the Mother refused to agree to the requirement of the Local Authority that she would not discuss the case with the children. She last saw them at the end of July 2010. Some days after that last contact M absconded and may have had unofficial contact with his Mother. He absconded again on 1st December 2010 and on that occasion was found in the Mother's company after the police forced entry into the Mother's home the following day. His initial placement with A broke down and he was moved to new foster parents where he appears to have settled well.
5. In July 2011 M met his guardian and her solicitor and made it clear he wanted separate representation and on 26th July 2011 the judge so ordered and appointed a solicitor to represent him. He has had the benefit of solicitor and counsel ever since. On 31st July a position statement settled by his solicitor set out his wishes and feelings in which he said, "I do not wish to remain where I am and I strongly desire to return home." He stated that he no longer wished to attend the final hearing or to give evidence as he had earlier but he did wish to meet with the judge to convey to her how he felt about matters. The Mother, on the other hand, pursued her application for both M and A to give oral evidence but that application was dismissed.
6. The final hearing commenced on 1st August 2011 with M represented by counsel who had every opportunity to cross-examine all witnesses on his behalf. At the conclusion of the court day on 2nd August 2011 HHJ Parry saw M in her room in the presence of his solicitor and the guardian. As the judge was to explain in her judgment of 21st November 2011:

"6. … I did not use it [meeting M] as an opportunity to ascertain what his wishes and feelings were because those wishes and feelings were already perfectly obvious from formal reports that the Court had received from the Guardian and the fact that he now wished to have separate representation.

7. I explained to him what the task of the Court is in trying to achieve a welfare outcome for children that reflects their wishes and feelings. I explained also that the Court has to look at the whole picture, all the evidence that is available about the child and about the people who are looking after him and who want to look after him. It was not appropriate for me to discuss any issues evidentially with him, such as the reasons why he does not see his mother and the reasons why he apparently absconded to her care in early December 2010.

8. I assessed M to be reasonably subdued during our meeting. …

9. M only became animated when talking about matters that are far removed from the heavy emotional baggage which must constitute his day-to-day life and his feelings about his brother and mother.

10. I endeavoured in our meeting to follow the guidelines that are given to judges in terms of meeting children so they have a full understanding of the process and how they are involved in it."

7. The hearing could not be concluded after 2 ½ days and was adjourned to 26th August to hear the guardian and for closing submissions to be made. On 26th August A's father attended court and in view of his albeit belated interest the matter was further adjourned to November.
8. On 16th November 2011 M made his application for permission to attend to give evidence by video link "so that the strength of my feelings can be made clear to everyone". He explained that he would be "extremely distressed if told that I was to be forced to remain in foster care and I would struggle greatly to accept this outcome." He also said that "I have had thoughts of running away as sometimes I have felt that people are not taking me seriously. These have occurred quite often, including quite recently, but in the last few weeks I have been a little more optimistic and hope that the court will grant my wishes. I would feel devastated if I were told I could not return." That application was heard on 21st November 2011, the Local Authority and guardian indicating that they did not wish to cross-examine M on the content of his statement, Mother indicated that the only question she would be seeking to ask him through her counsel would be about the likelihood of him voting with his feet and running away from the foster placement should a care order be made.
9. The judge dismissed the application as I have set out and continued to hear the care proceedings in which A's father offered himself as a carer for the children either jointly with Mother with whom he said he had been reconciled or in the further alternative by himself. The Mother seemed willing to care for the children jointly with the father but of course without the need for any Local Authority intervention. The Local Authority was successful in its application.

The judgment on M's giving evidence

10. The judge observed that the two authorities to which she had been referred, namely Re: W (Children) (Abuse: Oral Evidence) [2010] UKSC 12, [2010] 1 WLR 701 and A City Council v T, J and K [2011] EWHC 1082 (Fam), [2011] 2 FLR 803, dealt with radically different situations from the one with which the court was faced, the former concerning the giving of evidence to substantiate a complaint for the purpose of establishing the threshold and the latter dealing with an application for secure accommodation.
11. She made these findings:

"12. It is a relevant factor that the Mother has always displayed her own emotions quite openly in court whether represented or not. …

13. There remains, therefore, in my judgment a severe risk that if M is within the court precincts and available to Mother, as he would be by way of the video link, she will be unable to resist the temptation for an extreme emotional outburst in his presence which, based on her previous conduct in court, it would be impossible to control. That I regard as of real potential detriment to M in terms of his coming to give evidence."

12. She noted Mr Blake's suggestion that there is "value added" to his written statements through the court being able to assess M's subjective viewpoint and the strength of his feelings through his demeanour. But she held that it was inevitable that he would want to do what he thinks is right by his Mother and will want to put right by what he says matters over which he has no control and for which he is not responsible. Her conclusions were:

"37. It is likely, in my judgment, to be enormously harmful to M to assume a responsibility for the outcome of this case, which is exactly what he would do if he came to court to give evidence. … If [I may not be able to arrive at a conclusion which is consistent with his wishes] then he will feel that he has failed and moreover that there is a prospect that his relationship with those who would be responsible for his care and his own Guardian would be damaged. …

38. I question whether there is anything more that M can tell me or which I am going to be able to assess from his demeanour that is going to assist me with the determination of the relevant issues. …

39. I am prepared to accept, both for the purposes of this application and for tomorrow's hearing that M would like to return to the care of his Mother, and if that involves A's father to their joint care I am perfectly prepared to accept that he will be bitterly disappointed if he is not able to achieve that. I am also prepared to accept that there may be some short-term emotional harm to him as a result of a rejection of that case which is put on his behalf. But, as the advocates will be aware, there is rarely a perfect outcome to proceedings involving children, and this case is no exception.

40. The conclusion that I have arrived at is that the additional benefit to the determination of the relevant issues of M giving evidence is significantly outweighed by the very real potential detriment.

41. If there is really no evidential matter on which M's evidence can assist the Court, slow though I am to arrive at this conclusion, I have to question whether there is any need for him to be placed in the invidious position of giving evidence when the giving of that evidence may make matters significantly harder for him should the case go against his express wishes."

The judgment on the care application

13. The judge accepted the evidence she heard relating to the Mother's inadequate parenting and neglect. She accepted that A was found in a local park after dark inadequately dressed and with a broken arm, about all of which the Mother displayed low levels of concern. Her view was that A was old enough to be independent and to go where he wished. At the time A was just short of 8 year and a half years old. There were also concerns about M's late attendance at school often without money for school dinners. There was evidence of the children being left alone. The picture was of a lack of direct supervision and parenting which the children were receiving from their mother.
14. Then there was her abandonment of the children when she attempted to return to Ireland. Asked whether she had made a mistake in doing so "in common with much of the rest of Mother's evidence, her answer was evasive". Thus the judge concluded:

"45. It is clear from the available evidence at 28th May Mother had decided that she needed to prioritise her own personal issues above the welfare of the children, that she behaved in a somewhat high-handed if not arrogant fashion with the Local Authority, that they were left with the impression that there was no certainty as to when she would be returning to resume the care of the children. I am satisfied that that degree of uncertainty was deliberate on the part of the Mother. I am also satisfied that as the Local Authority has conceded, if she had dealt with them openly and honestly and shared proper information with them, the situation that has arisen in respect of the children may not have."

The judge was therefore satisfied that the threshold criteria were met.

15. Dealing with the Mother's case, the judge held:

"56. I have to arrive at the conclusion that there is simply no material which allows me to arrive at a conclusion that the children could be safe in the care of their Mother and which would avoid a repetition of the uncertain living arrangements, financial arrangements and neglect which the evidence that the court has accepted was the feature of the children's lives until 28th May."

16. As for the father she concluded:

"77. In my judgment, the available evidence suggests that the father has no real understanding of the difficulties that affect Mother's parenting and has not been prepared to gain that insight during the period that he had been involved in the proceedings."

There were, therefore, "irredeemable flaws in the plan of the parents to care as joint carers."

17. As for the father's case to be sole carer, the judge said:

"84. I have been given no evidence which allows me to arrive at the conclusion that there is any real possibility that father will act independently of the Mother or that he has the sort of commitment to these children that will prevent him from returning the children immediately to her care should the family relocate in Ireland. There is a total absence of evidence that allows me to arrive at the conclusion that he has any real commitment to the welfare interests of his son and step-son, and therefore further assessment is pointless."

18. Turning to the important part of her judgment for the purpose of this appeal, she dealt with M's wishes and feelings in this way. She accepted that "M has strong feelings". She accepted that he felt that the professionals misunderstood him and were misled by the fact he appeared to be compliant with the arrangements currently made for his welfare. He had thought of running away. The judge accepted that what he had written is what he wanted to hear of his wishes and feelings.
19. She concluded:

"87. However, the court's duty is to assess and interpret his wishes and feelings in the light of other welfare concerns. For the reasons that I have explored in detail in this judgment, I cannot conclude that Mother, father or the parents jointly offer any plan which has the remotest prospect of meeting M's global welfare needs.

88. … Dr Street [a clinical and counselling psychologist] indicated that when M was anxious about himself, it translates into an anxiety about his Mother because that was the role he had played in the family. It was not Dr Street's view that M would vote with his feet and leave foster care if his wishes were not acted upon. He felt that in the current foster placements (as opposed to the foster placement in December 2010) there was a degree of containment and flexibility around that degree of containment which allowed M to continue to feel safe in the foster placement, albeit that he would necessarily retain a concern about his Mother."

20. The judge's conclusion was:

"91. … looking at the Guardian's evidence also and the relationship she has formed with M, and the evidence of Dr Street … these may well be the wishes and feelings that M wishes the court to know about. However they are the product of his anxiety about his situation and his anxiety about his mother. As there is a genuine risk to his psychological adjustment as an adolescent and young adult in returning to the care of his Mother, I have to take the risk that Mr Blake invites me to, which is that he may act of his own volition, but the court would have to deal with that situation, as would the Local Authority, because to return him to the care of his Mother, which is what he wishes, would be detrimental to his well-being."

21. After the judge had concluded her ex tempore judgment Mr Blake addressed further submissions to the judge and asked her to amplify her reasons for refusing to adopt M's wishes about his long term care. She went on to explain:

"97. I accept there needs to be a balance between the expressed wishes and feelings of the child in question and circumstances likely to prevail if the child's wishes are acted upon or not acted upon. In my judgment, it is unnecessary to place any gloss on the s.1(3) 'checklist' in terms of elevating the risk of harm to any particular degree. It should be apparent from the analysis I have given of the parents' claims but I make it plain if it is not, that I consider that the risk of harm from Mother is overwhelming in its likelihood for these reasons. The court is satisfied that there are real question marks over her ability to separate off her own psychological needs from the needs of her children. … There are many comments made by the Mother, one of which I have referred to, which is: "My children need me but I don't need them" which are indicative of such a state of mind [that the Mother is simply unable to recognise what are the psychological and parenting needs of her children].

98. … The situation therefore must be that there is little or no prospect of Mother improving the standard of parenting that she has delivered to the children which the court has found to be deficient in terms of meeting the children's welfare interests … Her concept of parenting is inappropriate."

Discussion on the issue of M giving evidence

22. If an important decision was to be taken on the way you had to live your life, would you regard it as a rank injustice if you could not put your views before the person who has to take that decision? Of course you would. Would it make any difference if you were a child of sufficient maturity and understanding? I expect you would answer, "Such a child should have the same right to be heard". Would you feel the same sense of injustice if your views were adequately placed before the decision-maker but you are not allowed to give evidence on oath, be examined and cross-examined as necessary? I imagine you would say, "It all depends on the particular circumstances". That, in essence, is what Judge Parry said. The question for us is whether that instinctive answer is justified on the present state of the law.
23. It is an odd feature of the law relating to children that under that most paternalistic of all jurisdictions, wardship, the judge in wardship frequently saw his ward, or at least I did as often as I could. Then when wardship effectively disappeared following the Children Act 1989, the practice of seeing children seems to have been actively discouraged. Now the pendulum is swinging back.
24. At about the time the Children Act 1989 was passed, the Convention on the Rights of the Child was being adopted in 1989 by the United Nations. Article 12 of the Convention provides:

"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 have added the emphasis)

States Parties reaffirmed their commitment to the realisation of Article 12 at the twenty-seventh session of the General Assembly on Children in 2002. But still children were marginalised. So, in 2006 the Committee on the Rights of the Child held a day of general discussion on the right of the child to be heard in order to explore the meaning and significance of Article 12. That led to the publication of General Comment Number 12 (2009).

25. In the General Comment on the right to be heard in any judicial and administrative proceedings affecting the child this advice is given:

"34. A child cannot be heard effectively where the environment is intimidating, hostile, insensitive or inappropriate for her or his age. …

35. After the child has decided to be heard, he or she will have to decide how to be heard: "either directly, or through a representative or appropriate body." The Committee recommends that, wherever possible, the child must be given the opportunity to be directly heard in any proceedings. …

38. The opportunity for representation must be "in a manner consistent with the procedural rules of national law". This clause should not be interpreted as permitting the use of procedural legislation which restricts or prevents enjoyment of this fundamental right. On the contrary, States parties are encouraged to comply with the basic rules of fair proceedings, such as the right to a defence and the right to access one's own files. …

42. The context in which a child exercises her or his right to be heard has to be enabling and encouraging, so that the child can be sure that the adult who is responsible for the hearing is willing to listen and seriously consider what the child has decided to communicate. The person who will hear the views of the child can be … a decision maker in an institution (e.g. a director, administrator or judge), …

43. Experience indicates that the situation should have the format of a talk rather than a one-sided examination. Preferably, a child should not be heard in open court, but under conditions of confidentiality. …

45. Since the child enjoys the right that her or his views are given due weight, the decision maker has to inform the child of the outcome of the process and explain how her or his views were considered. The feedback is a guarantee that the views of the child are not only heard as a formality, but are taken seriously."

26. How successful have we been in implementing Article 12? First, the child is automatically a party to the care proceedings by virtue of FPR 12.3(1). Secondly, there is provision for the representation of the child, s.41 of the Children Act requiring the appointment of an officer of the service or a Welsh family proceedings officer for the child concerned unless satisfied that it is not necessary to do so in order to safeguard his interest. The court may appoint a solicitor to represent him. The so-called "tandem" model for the representation of children who are parties to family proceedings, namely by a guardian with social working qualifications and a specialist family solicitor meets our obligations to comply with Article 12: see Mabon v Mabon [2005] EWCA Civ 634, [2005] Fam 366, per Thorpe LJ at [26] who went on to conclude his judgment saying:

"32. … this case provides a timely opportunity to recognise the growing acknowledgement of the autonomy and consequential rights of children, both nationally and internationally. The Rules are sufficiently robustly drawn to accommodate that shift."

If the circumstances of the case demands it, as they did in this case, the child will be afforded separate legal representation by solicitors and counsel.

27. Thirdly, there is provision for attendance. Under s. 95 of the Children Act the court may order the child concerned to attend as prescribed by rules of court. FPR 12.14 provides that any party must attend the proceedings but the proceedings or any part of them may take place in the absence of a child pursuant to FPR 12.14(3) if the court considers it in the interests of the child having regard to the matters to be discussed or the evidence likely to be given and the child is represented by a guardian or solicitor.
28. Fourthly, as for evidence, s. 96 of the Children Act provides that a child's evidence may be heard by the court if, in its opinion he understands that it is duty to speak the truth and he has sufficient understanding to justify his evidence being heard. S. 96 also provides for the admissibility of evidence which would otherwise be inadmissible under any rule of law relating to hearsay. FPR 22.1 gives the court power to control evidence by giving directions as to the issues on which it requires evidence, the nature of that evidence and the way in which the evidence is to be placed before the court. The general rule is that any fact which needs to be proved by the evidence of witnesses is to be proved at the final hearing by the oral evidence.
29. That is the legislative framework. As for its application, the leading authority is ON v W (Children) (Family Proceedings: Evidence) [2010] UKSC 12, [2010] 1 WLR 701. It is pertinent to observe the facts were very different. There a fourteen year old girl was being called to give evidence against her step-father in care proceedings in respect of her and her half-sisters. Baroness Hale expressed these conclusions in principle:

"23. The object of the proceedings is to achieve a fair trial in the determination of the rights of all the people involved. Children are harmed if they are taken away from their families for no good reason. Children are harmed if they are left in abusive families. This means that the court must admit all the evidence which bears upon the relevant questions: whether the threshold criteria justifying state intervention have been proved; if they have, what action if any will be in the best interests of the child? The court cannot ignore relevant evidence just because other evidence might have been better. It will have to do the best it can on what it has.

24. When the court is considering whether a particular child should be called as a witness, the court will have to weigh two considerations: the advantages that that will bring to the determination of the truth and the damage it may do to the welfare of this or any other child. A fair trial is a trial which is fair in the light of the issues which have to be decided. Mr Geekie accepts that the welfare of the child is also a relevant consideration, albeit not the paramount consideration in this respect. He is right to do so, because the object of the proceedings is to promote the welfare of this and other children. The hearing cannot be fair to them unless their interests are given great weight.

25. In weighing the advantages that calling the child to give evidence may bring to the fair and accurate determination of the case, the court will have to look at several factors. One will be the issues it has to decide in order properly to determine the case. Sometimes it may be possible to decide the case without making findings on particular allegations. Another will be the quality of the evidence it already has. Sometimes there may be enough evidence to make the findings needed whether or not the child is cross-examined. Sometimes there will be nothing useful to be gained from the child's oral evidence. …

26. The age and maturity of the child, along with the length of time since the events in question, will also be relevant to the second part of the inquiry, which is the risk of harm to the child. Further specific factors may be … the child's own wishes and feelings about giving evidence … However, the court is entitled to have regard to the general evidence of the harm which giving evidence may do to children, as well as to any features which are particular to this child and this case. That risk of harm is an ever-present feature to which, on the present evidence, the court must give great weight. The risk, and therefore the weight, may vary from case to case, but the court must always take it into account and does not need expert evidence in order to do so.

…

29. In principle, the approach in private family proceedings between parents should be the same as the approach in care proceedings. …

30. … The essential test is whether justice can be done to all the parties without further questioning of the child. Our prediction is that, if the court is called upon to do it, the consequence of the balancing exercise will usually be that the additional benefits to the court's task in calling the child do not outweigh the additional harm that it will do to the child. A wise parent with his child's interests truly at heart will understand that too."

30. I would not myself have dared say this of Baroness Hale of Richmond but Thorpe LJ boldly remarked in Re: H (Abuse: Oral Evidence) [2011] EWCA Civ 741, [2012] 1 FLR 186 at [8]:

"The guidance that the Supreme Court gives in Re: W (Children) (Abuse: Oral Evidence) does not turn the world on its head; it still requires a measured balance between the demands of justice and the needs of child welfare …".

31. As Thorpe LJ observed at [33] in Re: W (Leave to Remove) [2008] EWCA Civ 538, [2008] 2 FLR 1170 the participation of children in private law Children Act proceedings had become a matter of particular topical concern leading to the creation of a sub-committee of the Family Justice Council, "The Voice of the Child", to advise on the way forward. He was able to predict that the Committee would be strongly in favour of judges seeing children much more frequently than had been the convention. Interestingly, he considered that the minimum entitlement was to be heard but that that could be achieved in three ways, separate representation, discussion with the judge or through a CAFCASS intermediary. He did not have the child giving evidence in mind.
32. Guidelines for judges meeting children who are subject to family proceedings were eventually given by the Family Justice Council in April 2010. The purpose of the guidelines was said to be:

"to encourage judges to enable children to feel more involved and connected with proceedings in which important decisions are made in their lives and to give them an opportunity to satisfy themselves that the Judge has understood their wishes and feelings and to understand the nature of the Judge's task."

I note that the purpose was to satisfy the children that the judge had understood their wishes, not to satisfy the judge that, if he saw them, he would be better able to understand what their wishes were. Thus the guidance went on to say:

"It cannot be stressed too often that the child's meeting with the judge is not for the purpose of gathering evidence. That is the responsibility of the Cafcass officer. The purpose is to enable the child to gain some understanding of what is going on, and to be reassured that the judge has understood him/her."

The problem that has arisen in this appeal was not one which appears to have been contemplated by the Committee.

33. The Court of Appeal in Re: W had invited the President of the Family Division to consider the issue of children giving evidence in family proceedings and Lord Justice Thorpe's working party of the Family Justice Council produced their Guidelines in December 2011. That set out these legal considerations:

"8. In the light of Re: W in deciding whether a child should give evidence, the court's principle objective should be achieving a fair trial.

9. With that objective the court should carry out a balancing exercise between the following primary considerations:

i) the possible advantages that the child being called will bring to the determination of truth, balanced against;

ii) the possible damage to the child's welfare from giving evidence i.e. the risk of harm to the child from giving evidence;

having regard to [a number of factors]."

Those factors include many which have relevance only to a child giving evidence to support a threshold allegation of whether or not some harm had been done to the child or children, see in particular d, e, f, i, j, n, and u. That said, the Guidance is helpful in dealing with the issue of whether the child should give evidence at the disposal stage to the care proceedings when the real question is what the welfare of the child demands.

34. The most recent authority is Re: A (Fact-Finding Hearing: Judge meeting with Child) [2012] EWCA Civ 185, [2012] 2 FLR 369. It was an unusual case. Following the close of evidence and submissions but before the judge had delivered his reserved judgment, the oldest child expressed his wish to meet with the judge and duly did so. During that meeting the child confirmed the allegations and expressed his annoyance at the family's denial of the abuse. In the final judgment the judge emphasised that what he had been told by the child had not been determinative and that he had simply taken it into account as something which accorded with his preliminary view that the children were telling the truth. He stated, "It will be clear from this judgment that importantly I listened to [the child] but, unlike his mother, I believe him." The parents appealed the decision on the grounds that they were denied the opportunity to make representations as to the proposed meeting and that the judge had used the meeting to gather evidence as to what the child had experienced within family life. They submitted that the judge had failed to comply with the April 2010 Guidelines. The appeal was dismissed. Thorpe LJ referred to the December 2011 Guidelines and said:

"51. So there is a useful distinction between these two levels of participation and involvement of children. If an application governed by the December 2011 guidelines results in a direction for oral evidence, the risk of contamination of the proceedings is no greater than with the involvement of any other witness.

52. However, if the application is governed by the guidelines of April 2010, and results in a decision from meeting between judge and child, then the risk of contamination is obviously increased. So in all these cases there are a range of distinctions that need to be drawn. The judge needs to consider what are the objectives of the proceedings. Are the objectives of the trial to establish what has happened in the past or are the objectives of the trial to establish what should happen in the future?

53. Equally important, it seems to me, is to consider what stage have the proceedings reached? Are they continuing proceedings? Are they concluded as far as evidence and submissions are concerned but the judgment is still reserved, or are the proceedings at the post-judgment stage?

54. Here of course we are concerned with a case in which the objective of the proceedings was to establish what had happened and the proceedings were at a stage where evidence was concluded but judgment reserved. It seems to me that that is the most dangerous situation in which a judge is likely to meet a child.

55. Much safer is the ground when the issue is what should happen in the future and the judge is anxious to ascertain for himself the strength of the child's wishes and feelings and perhaps what has contributed to the formation of those wishes and feelings."

35. That being the jurisprudence, is it enough for us to say that a child has a right not only to be heard in proceedings affecting him but also, and more relevantly for the appeal, a right to give evidence in those proceedings? The U.N. Convention on the Rights of the Child has not been made a part of English law but the duty of the court is nonetheless to have to it when considering matters relating to it. The position may now be different in Wales because the United Nations Convention on the Rights of the Child has become part of Welsh legislation by reason of the Rights of Children and Young Persons Measure (Wales) 2011 which came into force in May 2012. The Measure will shape all future policy decisions taken by Welsh ministers.
36. Nevertheless, in my judgment, it should now be declared that the child does have the former important but limited right, that is to say, a right to be heard in the proceedings. It is apparent from the foregoing that the right to be heard does not specify how the child is to be heard for the Convention expressly recognises that the voice of the child may be conveyed "either directly, or through a representative or appropriate body". Indeed the guidance at [43] prefers the child being heard under conditions of confidentiality, not in open court. It may be enough that a social worker, i.e. the CAFCASS officer or guardian hears the views of the child and it does not seem essential that it has to be the judge who hears directly from the child. So, whilst the child must be listened to, there is nothing in the Convention which entitles the child to give evidence to the judge. In my judgment a child has no right to give evidence.
37. Alongside the right to be heard and part and parcel of it, is the well established right clearly enforceable under the Human Rights Act 1998, namely the right guaranteed by Article 6 of the ECHR:

"In the determination of his civil rights and obligations … everybody is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law …"

38. The child is a party to the care proceedings and as a party is entitled to that fair and public hearing. The hearing will not be fair if the child's case is not heard and so Article 6 and Article 12 seem to me to run hand in hand and guarantee that the wishes and feelings of the child be made known to the judge. That is no more than the checklist under s. 1(3) of the Children Act 1989 requires. It does not answer the question how that information is to be conveyed to the judge.
39. In my judgment no-one has a right to give evidence. A trial may nonetheless be fair if the court exercises fair and reasonable powers to control the evidence as is provided for by FPR 22. Once there is undisputed evidence of a fact which may, for example, be a fact admitted on the pleadings, there is no need for further oral evidence to prove that fact. Evidence may be led to dispute a fact but the court will not tolerate a parade of witnesses all saying the same thing. An adult would not be allowed to give that evidence any more than a child should be.
40. This is fatal to Mr Blake's submission. M's wishes were well known. No-one questioned them. The relevant fact under the checklist was clearly established. It was not in dispute. There was abundant evidence before the judge to assess the strength of M's wishes. The judgment is replete with references to M's "strong" wishes. M's demeanour was not going to assist the judge in the weight to give this factor when placed in the balance of factors to be taken into account in assessing where the children's welfare lay.
41. As in most cases involving the exercise of a welfare discretion, there is a balance to be struck between the benefits and the burdens. That is exactly what Judge Parry did. Her ex tempore judgment was impeccable. She took account of relevant matters and disregarded irrelevant matters. She gave appropriate weight to the factors to which she did have regard. She arrived at a conclusion which was plainly and obviously correct, namely that she, having explained the procedure to M, did not need to see him again and certainly did not require him to give evidence even by video link. The harm to him far exceeded the benefit to the judge. This part of the appeal must, therefore, be dismissed.
42. I add a footnote. Article 6 requires a fair and public hearing. Judges must, in my judgment, be very cautious when they see children in the absence of the other parties. I would encourage them to do so to explain the judgment that the judge is about to give or has just or recently given in order to reassure the child that his wishes have been given proper weight and respect by the court. If the judge cannot accede to the child's wishes the judge can take that useful opportunity to explain why. But that meeting should not be used to take evidence from the child because if that evidence is given in the absence of the other parties, they could legitimately claim that their right to a fair trial had been invaded because a part of it was not undertaken in public. Circumstances will vary infinitely and there can be no hard and fast rules but judges must be alive to the possibility that the adults who have been excluded from the meeting may feel that injustice has been done to them. As in all these cases, sensitivity is a vital attribute for the family judge.

Is there a rebuttable presumption that the mature child's wishes should prevail?

43. In my judgment the answer is certainly not. The checklist sets out a range of factors to be taken into account, only one of which is the wishes and feelings of the child having regard to his age and understanding. The weight to be given to that factor will vary from case to case. It may be a very weighty factor, it may even be the determinative factor in a particular case but s. 1(3) simply cannot be construed so as to read into it some hierarchy of weight or presumptions of precedence over other factors. Each case is fact sensitive. Judge Parry dismissed this argument for reasons with which I totally agree.
44. Black LJ dismissed the application for permission to appeal the care order when he considered the matter on the papers. He said:

"I can see no possibility at all of a successful appeal in relation to the judge's determination that it was not in the interests of either of the boys to be cared for by the Mother. I will not rehearse all the factors that the judge identified in careful detail in this regard but they included the Mother's neglect of the boys, the events of May 2010, the Mother's failure to co-operate with any authorities, her failure to have contact with the boys for many months, her failure to provide any material which would permit the court to conclude that things had changed for the better, and the Mother's inability to provide psychologically for the children. I see no merit in the argument that there is a requirement that to override the wishes and feelings of a child of M's age, very powerful evidence of harm is required. S.1 sets out the features that require consideration in any case and it would be inappropriate to impose sub-tests when the one principle is that the child's welfare is to be the court's paramount consideration. As for Article 8 ECHR, the judge dealt with that properly."

I heartily agree.

45. When the matter was renewed before Thorpe LJ he said:

"The attack on the second judgment seems hardly to advocate given that this was an unusual case in which the Mother had walked out on M, acknowledging that he needed her but rejecting his needs in favour of her own. So what was the judge to do? The only short-term future for him seems to be the foster home in which he was established. Of course that would not resolve the longer-term problems but it certainly provided an attractive immediate solution. But of course it is said by Mr Blake that the grant of permission in relation to the first must logically result in the grant of the second since had the judge acknowledged M's right to testify and had she received his oral evidence by video link, arguably she might have arrived at a different conclusion. So the grant of permission in relation to the second judgment is not to be taken as overlooking the high quality of the judgment and the obvious care that the judge brought to the welfare issues that determines the ultimate argument."

Again, I totally agree. It is clear that Thorpe LJ would not have given permission to appeal the care order on the merits but for the right to give evidence point.

46. An appeal against the care order is utterly hopeless and I shall not add to the length of this judgment by disposing of each and every one of Mr Blake's arguments. The bleak fact is that this was a feckless mother who put her own needs before those of her children. Having found the threshold crossed, the judge was left with no alternative but to make the care order. Her judgment, again an ex tempore judgment, was exemplary, covering all issues carefully and fully and arriving at the only conclusion which could possibly have been reached on the sad facts of this case. Far from being wrong, the judge was absolutely right to make the care order.
47. I would therefore also dismiss that appeal.

Lord Justice Pitchford:

48. I agree.

Lord Justice Elias:

49. I also agree.