#1783 - Fortin Rights Substance Or Spin - Family Law

Fortin – Rights - Substance or spin?

CAFCASS

• CAFCASS is meant to make reports on children

  • It is terribly underfunded and regularly delivers its reports late

  • Staff morale is normally quite low – chief executive resigned a little while ago.

• In the past, of course, these children would only rarely have been separately represented in court. Indeed, until quite recently, CAFCASS' main function in private law disputes was to provide the court with background information about the children involved, if and when a court welfare report was requested. But spurred on by the antics of the fathers' groups in 2004–2005, there have been concerted moves to divert warring parents from court by dint of far more intensive 'dispute resolution work' (set up by the Private Law Programme in 2004) serviced by CAFCASS

  • They now don’t do as much writing of reports, but much trying to persuade parents not to dispute and resolve their problems without going to court

    • But what happens if this fails? Will they be able to accurately give the views of children?

    • Similarly, during the negotiations, are children considered as much?

• Children don’t need an inadequate report on them (1/3 don’t meet required standards)

  • They need representation in court

Mabon v Mabon

• The judge decided that they did not realise the emotional damage they would suffer if they got involved

  • The Court of Appeal disagreed. Thorpe LJ clearly considered that these were 'welfare' considerations which, being essentially paternalistic, did not get to grips with what he called 'the autonomy of the child and the child's consequential right to participate in decision-making processes that fundamentally affect his family life' (Mabon, at para [26]). In his view, since these young men were very articulate and perceptive, they clearly had the required powers of comprehension to instruct their own solicitor. He emphasised that the courts must come to terms with children's right to be involved in litigation, as protected by their right under Art 12 of the UNCRC to express their views and, by their right to private life, under Art 8 of the European Convention

  • Thorpe LJ indicated an admirable commitment to the concept of children's rights. Nevertheless, as explained elsewhere, his reasoning may create problems in the future

    • What if he too had thought it would damage these young men to be allowed to instruct their own solicitor? He implied in his judgment that he could then have used the 'welfare principle' to override their wishes, as if it were an alternative option to arguments about rights

    • But it is arguable that when a judge is convinced that by asserting a right, a young person's long‑term interests would be severely damaged, he should conclude that he or she simply does not have that right. Indeed, with respect, it seems nonsensical to suggest that a child's rights can include an ability to pursue clearly predictable psychological harm. These may appear to be fine distinctions. Nevertheless, it is essential for the courts to clarify how to deal with situations where children claim rights which they consider will harm them

  • Mabon was, in many ways, a reasonably straight forward case — the only obvious conflict being between the young men's own interests — between their claimed right to autonomy and their right to protection from following a damaging course of action. In some cases, however, there is an added complication — a child may claim a right which apparently conflicts with his or her parents' rights. Society remains very ambivalent over the extent to which parents' rights can or should be undermined by the State's commitment to children's freedoms.

    • the recent application brought by Sue Axon demanding the right, as a parent, to be informed if and when either of her two daughters, both under the age of 16, consulted a doctor over obtaining contraceptive advice and treatment, and/or an abortion (R (Axon) v Secretary of State for Health and the Family Planning Association

    • Sue Axon, unlike Victoria Gillick, could now argue that, by giving her daughters a right to confidentiality in the event of their consulting a doctor over an abortion, the Department of Health was infringing her right to family life under Art 8 of the European Convention. This argument was rejected. But before looking at the reasoning underpinning such a conclusion, it is instructive to consider how this type of argument might have been dealt with had two adults been involved. Consider, for example, Mr Paton's application to the European Commission of Human Rights in 1980 (Paton v UK (1980) 3 EHRR 408). He challenged the way that his wife could obtain an abortion without her doctor informing him, her husband, first. He claimed that she was infringing his rights to family life. The European Commission held that allowing the mother freedom to act in this way protected her rights to sexual privacy under Art 8. Nor did Art 8 give this prospective father a right to be consulted over an intended abortion, since this would infringe the mother's right to freedom from interference with her own private life

    • Disappointingly, a totally different approach was adopted in the Axon case. Silber J maintained that the Human Rights Act 1998 had left the Gillick decision fully intact. In the first place, he held that a parent's right to exercise parental authority dwindles as the child gets older and is able to understand the consequence of different choices and then to make decisions relating to them. He considered, therefore, that a parent's right under Art 8 to parental control over medical decision-making comes to an end as soon as their teenage offspring reach an age when they understand the advice provided by the medical profession and its implications (Axon, at paras [130]–[132]). On the face of it, this appears a reasonably plausible means of restricting parents' rights under Art 8. Indeed, one must sympathise with Silber J's wish to prevent Sue Axon establishing that Art 8 entitled her to obtain confidential medical information about her daughters behind their back. Nevertheless, as Ananda Hall has pointed out, the idea that parents simply lose this part of their Art 8 rights to family life as soon as their...