In June my colleague Ann Thomas was presenting to a conference in Malaysia on international law. The theme of the presentation focused on the voice of the child and a link to her article preceding her lecture can be found here.
Ann’s presentation was particularly prescient bearing in mind the significant decision made this month in the Court of Appeal. The case involves a 14 year old boy who had been taken from London to Ghana in March 2024 following being told that a relative was ill. This case is particularly important because the boy had effectively been tricked into going to Ghana because his parents had feared that he was being drawn into criminal activity where he lived in London.
The child brought a case against his parents in the High Court in London. In the initial hearing, the Court ruled against him.
He appealed and the Court of Appeal which included Sir Andrew McFarlane, the President of the Family Division, highlighted his concerns with the approach undertaken by the Judge, ultimately re-emphasising the importance of listening to and assessing the voices of young people. The Court when deciding matters relating to children must look at the child’s welfare as its paramount consideration. Whilst the Court has a discretion, it must follow the factors set out in the welfare checklist contained in section 1(3) of the Children Act. The first item in the checklist is the ascertainable wishes and feelings of the child in light of their age and understanding.
Whilst the child’s wishes are not the Court’s paramount consideration and welfare is, the reality is that it is vitally important to continue to ensure that a child’s own voice is heard within proceedings and therefore that child must have input wherever possible into the decisions being made about their life. It is right that this consideration has to be balanced, as set out in the welfare checklist, against the child’s age and understanding. Not all children will have a maturity to be able to express their views in such a way and age in of itself is not simply a marker of whether their wishes will be followed but it is an important restatement of the key principles that underline the Children Act.
Mark Smith is a Partner in our specialist children team. Mark regularly acts for parents in private law proceedings, often with an international element including relocation overseas. Mark is also regularly appointed by CAFCASS to represent children in complex care proceedings and is adept at meeting with young people to ascertain and understand their wishes and feelings throughout the proceedings to which they are subject.