Gillick and children’s rights

In the light of the House of Lords in Gillick v West Norfolk and Wisbech AHA [1985] UKHL 7, [1986] 1 AC 112, [1986] 1 FLR 224 and the Cleveland Inquiry report and of other impetus for child law reform in the 1980s, children’s rights to be heard were intended to be given greater prominence by CA 1989. By 2016, CA 1989, s 1(3)(a) – that the views of a child of age and understanding should be taken into account when the court is considering an order in relation to that child’s future – had been elevated to a ‘fundamental principle’ of our law (by Ryder LJ in Re D (A Child) (International Recognition) [2016] EWCA Civ 12, [2016] 1 WLR 2469, [2016] 2 FLR 347) (see Chapter 4).

Things are changing when it comes to children’s views and, for example, of courts’ observation of the United Nations Convention on the Rights of the Child 1989, Art 12.1: that a child ‘who is capable of forming his or her own views’ should be guaranteed ‘the right to express those views freely in all matters affecting the child’. The child’s views should be ‘given due weight in accordance with the age and maturity of the child’ (Chapter 5).

Yet some things do not change very much. Between CA 1989 receiving Royal Assent and its coming into operation in October 1991 in R v B County Council exp P [1991] 1 FLR 470 the Court of Appeal was confronted by a judicial review application, the only way a local authority’s failure to call live evidence (as opposed to rely hearsay) could be done then. The challenge was to a decision that a child (J, aged 17 and 3 months) need not give evidence against her stepfather. She alleged that he had abused her sexually. The local authority said that they would rely only on her statement which was covered by the then recently introduced Children (Admissibility of Hearsay Evidence) Order 1991. The Court of Appeal held – on a more or less technical judicial review basis – that the decision not to call J was within the local authority’s discretion and could not be set aside by judicial review.

Nicholls LJ at 478 said:

‘The stepfather’s case is that J’s statements are a tissue of lies. She is an accomplished liar with ample motive for concocting such dreadful allegations. So there is a head-on conflict of testimony between the two of them. Only they know which of them is telling the truth.

The time-honoured means of resolving this type of dispute is for the two individuals to attend before an impartial judge who hears both of them. Each may himself, or through an adviser, ask the other questions, so as to test the other’s veracity. The judge listens and observes. At the end the judge has little difficulty, in most cases, in deciding which of the two is being truthful and which is not….

It is against this elemental background that I have a sense of grave disquiet in the present case….’

This preface introduces Children’s Views and Evidence which can be purchased here.

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