A meeting between the judge and the child in a family case is quite a fashionable idea.
There are Guidelines as to what is allowed and what is not allowed. The only one with which we are concerned is the criterion of not using the judicial interview to elicit evidence from the child. Somehow evidence is, on the one hand, to be avoided like the plague, whilst, on the other the judge needs to ‘hear’ the child. There is an inherent and uncomfortable tension between these competing goals, a tension that can and should be probed a little. And there is a more fundamental question: why are judges having these meetings at all? Let’s take these questions in reverse order…
Why have Judicial Meetings with the Child?
For me, we need to look at the same arguments that are adduced in the case of ‘Wishes and Feelings’ reports. We need to work out why we care what the child wants, or says it wants. Why are we asking our children where they want to live or how often they want to see either parent? These questions are simply too important to leave to children. This is just woolly-headed liberal nonsense. It’s part of a culture that insists we give power to children over issues that concern their welfare.
Do we ask the opinions of our children about going to school or to the dentist? Of course not. They go, because we make them go. And we do that not because we are bullies or ogres, but because we love them and want what is best for them.
The case law (and I won’t rehearse it – it’s all on this website) makes it abundantly clear that the way the law works is as follows:
Expressed wishes are ‘trumped’ by ascertainable wishes;
All wishes are ‘trumped’ by the Paramountcy Principle (ie, the child’s best interests);
Long-term best interests ‘trump’ short-term best interests.
In other words, the child’s best long-term interests trump all other considerations.
If that is right (and it is), it is surely incoherent even to ask the child about his wishes. What on earth are we doing? We are seeking an abnegation of our responsibility as grown-ups – as parents and judges. It is our job to decide what’s best for our children, not the child’s job! Seeking the child’s wishes (expressed or ascertainable) is simply abject cowardice.
Indeed, the whole process is not one that should involve the child at all. These are adult matters. Should a child be deciding at the age of eleven whether he goes to school, sees both his parents, goes to the dentist, plays on motorways? The whole idea is utter rot.
And if that is right, there’s no need for the child to meet the judge. Indeed, it’s a positively bad idea. In Parental Alienation cases (or implacable hostility cases, intractable contact disputes or whatever one wishes to call them), the child is simply programmed by the alienating parent. So there is another reason (were one needed) why getting at the child’s wishes is a waste of time and, worse than that, positively harmful to the child’s best long-term welfare needs. We’re not getting at the child’s true wishes anyway.
It follows that all discussions with the child are a waste of time and a cowardly abnegation of our duty as parents and judges. And if that is right, we should abandon all such discussions (whether with CAFCASS or judges). It further follows that we do not need to worry any more about whether such interviews do, or should, procure evidence from the child – the point becomes moot.
But, just in case you don’t ‘buy’ this argument, let’s look at the second question.
What is the difference between ‘hearing’ the child and attempting to glean evidence?
In the Guidance, we are told:
In England and Wales in most cases a child’s needs, wishes and feelings are brought to the court in written form by a Cafcass officer. Nothing in this guidance document is intended to replace or undermine that responsibility.
So, CAFCASS get the evidence, not judges. Judges should wind their necks in. Who do they think they are, trying to get at the truth?
Consider also that
The purpose of these Guidelines is 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
“Connected”? God help us! Who drafted this drivel?
The only involvement a child should have in proceedings like this is being told what has been decided. And, even if it’s a good idea to involve children, we should have a better method for determining their true wishes than using CAFCASS officers, only 2% of whom have been on the (non-mandatory) Parental Alienation course.
The difference between ‘hearing’ the child and attempting to glean evidence was examined in a case involving Mrs Justice Parker, who, as you may remember is the best judge in Christendom. In this case, Mrs Justice Parker was wrongly overruled by the Court of Appeal. The case is Re KP (A child)  EWCA Civ 554. And when I say ‘wrongly’ what I mean is that the Court of Appeal’s judgment whilst (probably) correct in law, was nevertheless a(nother) slap in the face for justice. Allow me to explain.
I’ll start with a question. Which judge is the most aware of the hopeless ineptitude of CAFCASS FCAs? Probably Mrs Justice Parker. Let us remind ourselves of what she says in re H  EWCA Civ 733
“I regard parental manipulation of children, of which I distressingly see an enormous amount, as exceptionally harmful. It distorts the relationship of the child not only with the parent but with the outside world. Children who are suborned into flouting court orders are given extremely damaging messages about the extent to which authority can be disregarded and given the impression that compliance with adult expectations is optional. Bearing in mind the documented history of this mother’s inability to control these children, their relationship with one another and wholly inappropriate empowerment, it strikes me as highly damaging in this case. I am disappointed that the professionals in this case are unable truly to understand this message. …. Parents who obstruct a relationship with the other parent are inflicting untold damage on their children and it is, in my view, about time that professionals truly understood this.
I am in no doubt that I am entitled to disagree with the view of both the Guardian and the social worker, both of whom, although expressing their own views forcefully, recognise that the decision is for me, having surveyed all the facts and depending upon the findings that I make. I disagree with them because they have not taken into account the degree of parental manipulation and the dangers presented to the younger children from the inappropriate power given to the eldest boy. I am in no doubt that the mother’s track record is such that she cannot safely have unsupervised contact to her two younger boys at the moment…”
The point is that CAFCASS officers can be a bit thick.
How to counteract that? Well, have a judicial meeting with the child and try to tease out the child’s true wishes. So, that’s what she did in re KP (above). In trying to do the right thing, she seems to have overstepped the mark, and used the judicial interview to procure evidence from the child. She asked 87 questions of the child in all. That seems to have been a bit much for the Court of Appeal, who overturned Mrs Justice Parker’s decision to let the child go with her dad to live in Malta.
Submissions, evaluations, cross-examination and ‘expand and explain’
Mrs Justice Parker indicated that she was entitled to evaluate the wishes and feelings of the child. Here, those ‘wishes and feelings’ amount to the child making ‘submissions’, not adducing evidence, and so questions about these submissions were not ‘cross-examination’, but just an attempt to get the child to ‘expand and explain’.
Now, on the face of it, that seems ok, because the Guidance makes clear that it is not the purpose of the meeting to glean evidence. As counsel for the mother argued though, whatever the purpose of the meeting, evidence was going to come out. Indeed, it is hard to see how that could be avoided. So Mrs Justice Parker did procure evidence and did then rely on that evidence in coming to her decision.
At para 38 of the judgement, the Court says that counsel for mother
“was therefore critical of the judge’s assertion (paragraph 18) that it was permissible for her “to probe what [K] said not by in effect cross-examining her but by asking her to expand and to explain”. Mr Turner described the judge’s description as “mere sophistry””
And, to be honest, that sounds right, loathe though I am to criticise Mrs Justice Parker. Still, I can rest assured that she won’t care a jot about my opinion…
Yes, this distinction is probably sophistry, but all done with the best possible motive – to get at the truth. And as CAFCASS are so (demonstrably) hopeless at that endeavour, someone’s gotta do it. And it seems to me that a judge would be the logical person. But that ain’t allowed…
And that takes us back to the first point. If it is true that judges are not allowed to stray into the role of evidence gathering at these interviews, we surely have to wonder as to the point of the judicial interview in the first place.
Oh yeah, I remember now. To make the child feel more ‘connected’.