Family Law

District Judge Paul Carr, Watford County Court

'Rule 54. Ascertaining wishes or views of child or young person

If a court is required, or considers it necessary or desirable, to ascertain the wishes of a child or young person at any hearing of any application, the court may-

• (a) order that any party to the proceedings, and the lawyers or other persons representing a party or the child or young person, be excluded from the hearing for so long as may be necessary to ascertain those wishes or views; or
  
• (b) direct when and where the judge will ascertain those wishes or views.'

Did you miss something? Where can you find this legislation? You cannot, at least not in this jurisdiction, since this is an extract from New Zealand's Family Court Rules 2002. (For further discussion about the involvement of children in the New Zealand family law process see the article by Judge Peter Boshier, Principal Family Court Judge of New Zealand, 'International Family Justice from a New Zealand Perspective' published at [2008] International Family Law149.) New Zealand is not alone in this approach to proceedings involving children and amongst others are Germany and a number of other European jurisdictions. Should judges (and I include magistrates in this term) in our jurisdiction be similarly encouraged to speak to children during the proceedings? If so, is there a need to change our rules so that they are more akin to those of New Zealand - or are our present rules adequate? Should we instead be extremely cautious about involving the child directly in the court process, or perhaps avoid their direct participation altogether? Is our adversarial system incompatible anyway with such an approach?

Article 12(1) of the United Nations Convention on the Rights of the Child 1989, which the UK adopted in 1991, says that a child who is capable of forming his or her opinion should be assured the 'right to express their views freely' and Art 12(2) says the child should be given the opportunity 'either directly or through a representative or an appropriate body' to be heard. Section 1(3) of the Children Act 1989 says that in any proceedings concerning a child the court should have regard to 'the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding)'. In public law proceedings, the child automatically becomes a party to the proceedings, represented through the child's guardian and in private law proceedings can become a party pursuant to rule 9.5 of the Family Proceedings Rules 1991, represented by a guardian ad litem.

To read the rest of this article, see April [2009] Family Law journal.

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