Children’s Rights: Challenges, opportunities and emerging perspectives .

1. Children’s Rights: Challenges, opportunities and emerging perspectives. Judith Masson

2. CROC ‘Children are not mini-persons with mini-rights, mini-feelings and mini-human dignity. They are vulnerable human beings with full rights which require more, not less protection.’ Maud de Boer-Buquicchio, Deputy Secretary General of the Council of Europe, October 2005

3. Art 22 1. States Parties shall take appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee ….receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present Convention…..

4. Implementation in the UK • Wales Rights of Children and Young Persons(Wales) Measure 2011 • Scotland Children and Young People Bill consultation July 2012

5. Art 12: Children’s voice 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 …..

6. ‘Child-related policies and services carry an imperative to consult children’ (Coad and Lewis 2004).

7. Children’s voice in Law Reform Confidence and Confidentiality (2006) Major consultation with children and young people Openness in the Family Courts (2007) ‘Children come first’ Family Justice in View (2008) Children’s interests ignored

8. Children’s voice in Law Reform research commissioned by Children’s Commissioner Brophy (2010)

9. ‘[T]he underpinning principle of the family court system, that all decisions must be made in the child’s best interests, must apply equally to formation of Government policy on media access to the family courts.’ House of Commons Justice Committee 2011

10. Children’s voice in court Child Protection proceedings Tandem representation ‘ can serve to distance children from proceedings – sidelining views when advocating for their welfare’ (Masson and Winn Oakley 1999)

11. Children’s voice in court Private Law proceedings (= Family Law Act ) ‘[in order to] safeguard Art 12 Rights, we must in the case of articulate teenagers accept the right of freedom of expression and participation outweighs the paternalistic judgment of welfare.’ per Thorpe L.J in Mabon v Mabon [2005]

12. ‘Children should be heard far more frequently…. Just as adults may have to do what the court decides whether they like it or not, so may the child. But that is no more reasons for failing to hear what the child says than it is for refusing to hear the parents’ views.’ per Lady Hale in Re D [2006]

13. The Welfare Principle • Transfers broad discretion to the judiciary • Decisions use the rhetoric of welfare • Focuses on the effect on the child’s life

14. Baby contact ‘It is a dreadful thing to take a baby away from his mother … [T]he very least the State can do is to make generous arrangements for contact. …Contact two or three times a week for a couple of hours a time is simply not enough if parents reasonably want more.’ per Munby J Re M [2003]

15. Progressing babies’ welfare Coram research: Kenrick Family Justice Council Debate (2010) DfE Consultation on contact (2012)

16. ‘Contact for infants can be particularly problematic. There is pressing evidence that high intensity contact for this group can be stressful and disruptive. Of particular concern is the exposure to multiple carers and the constant disruption to a daily routine.’ (Department for Education (2012) para 17)

17. Procedural rights: delay/expedition ‘culture of acceptable delay’ Murch 1987 ‘any delay ..is likely to prejudice the welfare of the child’ Children Act 1989, s1(2) ‘cases take as long as they need to take’ Judge

18. Family Justice Review ‘delay really matters’ • 26 week time limit achieved through: • greater judicial control • reduced use of experts • more limited review of care plans • Shared understanding of child development

19. Child development guidance for Family Justice Professionals Rebecca Brown and Harriet Ward (forthcoming) Cultural change: From: Fair process To: Fair decision within child’s time scale

20. Conclusion Law is only a tool • Achieving effective change is far more challenging than making law • Using law to provide good outcomes for children is harder still • Effective family justice needs research • How it operates • On effects of decisions to provide feedback • To inform decision making