I knew Paul Sieghart in the 1950s and 60s and well remember his dedication to law reform and human rights. I am honoured to be asked to give the annual lecture in his memory. I also feel some anxiety at being asked to speak which was considerably enhanced by listening to last year's speaker, Professor Dworkin, who spoke without a note for about an hour. On the other hand, you cannot expect such a high standard every year.
I have a confession to make. I am a convert to the Human Rights Convention and a recent one at that. I remember the early years of the Convention and the discussion for many years thereafter as to whether it should be incorporated into English law. I could see no good reason to do so. I have no doubt, however, that the incorporation of the Convention into English law by the Human Rights Act has added to and enhanced the English law. It has opened up and illuminated some dusty corners. It is also fair to say that many aspects of Convention rights were to be found enshrined in our domestic law prior to the passing of the Human Rights Act.
In the sphere of family law to which I propose to devote my observations this evening, I believe that there was not much wrong with the framework but the application of domestic legislation or procedures to individual cases may leave much to be desired. A particular benefit of the introduction of the human rights legislation is the opportunity it has given judges and lawyers to revisit concepts we took for granted and to rethink the way we do things.
I propose to look at whether we are doing enough for the rights of families, by asking the following question: "Who are we failing?" The spectrum of vulnerable families and family members is vast, but I shall focus on two broad themes - firstly, children, and secondly, excluded families. I am afraid that, as I prepared this paper, my especial interest in children has led me to spend a disproportionate amount of time on them and you will have to forgive an imbalance in dealing with the subject. The requirement to be here this evening has concentrated my mind wonderfully and has crystallised my thinking on these issues. I have of course learnt much from others whose lectures and papers I have read, but this paper represents my own views on where we are and what our objectives should be.
Most of us don't think much about children. As parents and grandparents we love them, cope with them, watch them grow up with a mixture of pride, amazement and from time to time intense irritation. Children are, in my view, what makes life worth living. If we did not have children, there would be no future and, I would suggest, no purpose other than the day to day superficial purpose of being alive. It does not matter whether we are or are not parents. We live in a world which can only survive beyond ourselves if children are born into it and can take over from us in due course. That realisation requires all of us to take an interest in what is happening to children today, many of whom will be the parents of the future. The question has to be asked - what sort of parents will they be? What sort of future will they give their children?
I would suggest that children are viewed with some ambivalence by society generally. Indeed it was a very long time before society bothered to give children much thought at all. Even in the relatively recent times of the nineteenth century, children were viewed as mere possessions. It has been said that the nineteenth century was the age of the father. Sanctioned by the courts, a father was said to have "sacred rights" over his children and probably spent more on his horses than on his children (certainly on the education of his female children).
There is today a kindly, even it might be said, sentimental approach to the darling baby and the innocence of childhood. It is however well known that the RSPCA and the PDSA receive vastly more money than the NSPCC. We give more for donkey sanctuaries than for children in need. We have a donkey sanctuary in Devon with a counterpart on the island of Lamu off the Kenyan coast. The English donkey home does not know how to spend its money and the farrier visits once a fortnight.
There is a link between poverty in childhood, poor health, low educational attainments and future opportunities. There are more risks of mental health problems, early death and childhood accidents. Here are a few facts about the reality of life for some of our children against the background that the UK has the fourth richest economy in the world. More than one third of British children live in poverty. Many poor children do badly in education. Over a million children truant from school and about 9000 are permanently excluded. Such children tend to live in the areas of highest deprivation where there is a high incidence of drugs and crime. About 2800 children aged between 15 and 17 are in Young Offender Institutions. Over 100,000 children in the UK live in temporary accommodation. Around 5000 children under the age of 16 are used for prostitution in the UK, including those moving across borders. The UK has the highest rate of teenage pregnancies in Western Europe. Well over a million school children are working illegally. Two children die each week from abuse or neglect within the home. There is no time to discuss in a paper of this length, the problems of asylum children, those under a mental or physical disability with special needs, children born to mothers in prison or ethnic or many other minority groups.
I was asked recently whether I believed that we were putting children first. The immediate response would be, I suppose, yes of course. Look at all the legislation. Look at all the court cases. Look at all the resources ploughed into child education from the nursery to tertiary education. Yes, of course. But that does not answer the question of whether we are failing them.
I propose to look at children under three main headings: children in care; children in trouble and children whose parents part.
(i) Children at risk
I turn first to the position of some of those engaged in care proceedings. Many of those children to whom I have just referred have been the subject of state intervention by social services departments of local authorities. Other children should have been but were not identified and assessed in time to save them from death or serious injury. In other cases the damage was done after the children were placed in care or accommodated by local councils. There have been over 70 public inquiries into severe child abuse since 1945. Over and over again, distinguished and highly qualified professionals produce reports, highlighting the root of failures which have had such devastating consequences.
I take a few quotes: - in 1974, "communication failures", in 1984, "the attitude in regarding the parents of children in care as the clients rather than the children in their own right, may be widespread among social workers.", in 2000, reporting on the decades of sexual, physical and emotional abuse of children in North Wales resulting from "abuse, neglect and mismanagement" whilst the children were in care, which the government itself has labelled "truly horrifying"; in 2002 that the two year old had died from neglect and abuse after a "lack of communication" between agencies.
Most recently, of course, Lord Laming's Inquiry has reported on the death of Victoria Climbie who died last year. The Laming Report said:
"The extent of the failure to protect Victoria was lamentable. Tragically it required nothing more than basic good practice being put into operation... doing the basic things well saves lives... Victoria died because those responsible for her care adopted poor practice standards."
It set out a state of affairs described as "widespread organisational malaise" and the agencies as "under-funded, inadequately staffed and poorly led". The major blame was attributed to senior management of the agencies involved who were unwilling to accept any blame for the failures, described by Lord Laming as "breathtaking". The answer of the Report was:
"...a clear line of accountability from top to bottom, without doubt or ambiguity about who is responsible at every level for the well-being of vulnerable children... [and] managers with a clear set of values about the role of public services, particularly in addressing the needs of vulnerable people, combined with an ability to 'lead from the front.'"
These comments were made against a background of repeated failures of the agencies to protect children in the community. There is a reported average of 78 children killed every year by parents or minders, a figure that has not changed since Maria Colwell's death in 1973. Clearly, we are still doing something very wrong indeed. These are not invisible children: they are often known to police, social services, education authorities, housing officers and medical professionals. The latest report provides us with yet another awful warning of what is and has been going wrong for some time. Somewhere between the brilliant ideals of policy and the horrific results of failed implementation, there are some very important gaps, and we must strive much harder to fill them. The lessons are the same as those we learnt in Cleveland so many years ago: there are communication breakdowns between professionals and agencies; failures in the care process; failures in the court process (sometimes called administrative abuse); and a lack of a joined-up approach to the welfare and rights of children.
Of course, it is not all doom. The Children Act 1989 is the primary legislation which provides the framework for the management of public law applications. Looking back over the Children Act's performance, it is clear that the framework of the Act itself has needed little in the way of overhaul. It provides a careful balance between parents, children and the state. Some changes have been made with the recent introduction of the Adoption and Children Act 2002; but overall, the legislative structure in place is quite workable. Many recommendations from earlier inquiries have been accepted and taken up by the Department of Health which publishes excellent guidance. Much of it is carried out by Social Services round the country and on the ground is working well. There are many instances of good practice in local authorities, hospital staff and police and between Social Services Departments and, in particular, the police, on joint investigation and joint interviewing. I believe we owe an enormous debt of gratitude to social workers, who are chronically undervalued, but whose contribution to child care and child protection is irreplaceable. But the picture is uneven across the country. The problem remains one of culture and of implementation, which of course brings into focus the interminable dilemma of lack of resources. As one might imagine, many of the failures are in deprived urban areas. Victoria died in a poor area of North London. It is worth remembering that the United Nations Convention on the Rights of the Child, Article 19, gives the child the right to protection from abuse and neglect.
One group of children gives me particular cause for concern because they may individually and collectively be forgotten, those who are the subject of care orders and have not yet been placed either for adoption or other long-term arrangement. Some children are left in limbo, without final plans for their future, not just for months but for years. Some have multiple moves. I heard of one child who had 40 moves before he was eventually placed. It is not surprising that such children present 'problems'. I hope the Adoption and Children Act 2002, which is not yet in force, with its emphasis on speeding up permanency, will go a long way to improving their situation. I also see a trickle, which may become a trend, of the use of the free-standing application under section 7 of the Human Rights Act 1998 for some at least of those children and I shall watch with interest how it may develop.
The NSPCC has recently been conducting a comprehensive audit of the operation of the Children Act 1989, and the child protection system. Unusually, it has conducted its research via surveys of both adults and children. The interesting findings, from my perspective, were in the comments from the young respondents themselves. The survey was distributed through a magazine sent to all children in care. The sheer volume of responses received - over 700 so far, from young people aged 6 to 20 - in itself tells us that young people are extremely keen to have their feelings and opinions heard, to tell the adult world about what it means to be in care, and to voice their feelings about the changes they would like to see to the system.
The kinds of things that young people had to say in this survey are very instructive. Throughout the survey were many heart-rending statements from children, some of whom had spent a large proportion of their lives in care. As you might expect, the level of detail and literacy in responses ranged enormously. For the 6-year-old, when asked "What would you have liked to have been different?", the answer was a simple: "Everything". Many young people said that they wished they'd been able to have a "normal" life. On the other hand, there were also some rather nice, positive comments - such as the child who said:
"I think being in care is Brilliant and I wouldn't change anything".
The issue of contact with family and friends emerged as a very significant one for these young people. A staggering 60% of children said they did not see enough of their father and would like to see him more often. Many said they did not see enough of their mothers, their siblings, their friends or a previous carer who was important to them.
Another clear message from these young people is that they need to have certainty and stability in their lives as early as possible. A number of children referred to the need for permanency. One child said:
"I hated being moved about not knowing where I was going next and who these people were, so sometimes it was quite scary and upsetting as I could never settle down."
"I would like my Forever Family straight away instead of lots of short term family".
It is a sobering reflection on our system that less than half of the young respondents said they thought they had been listened to and their rights had been respected. In light of such evidence it is safe to say, I am afraid, that we in England cannot yet claim we are doing enough for children in care. The preamble to the UN Convention recognises the right of children to be brought up "in the spirit of peace, dignity, tolerance, freedom, equality and solidarity". We have to ask ourselves whether we can say that we provide that to the children in our care system and I fear the answer in respect of the children I am talking about is we are failing to do so.
(ii) Children in trouble
There is a link between children who may be or ought to be in the sights of the protection agencies because they are living in unsatisfactory circumstances and because they are also offending. Children in need of protection often become children in trouble with the law. How does our society deal with child offenders? I would suggest that we have a punitive approach towards children who commit offences, however young they may be. This punitive approach was starkly illustrated in the two cases of Mary Bell who, aged 10, killed two small children and Thompson and Venables who equally both aged 10, killed Jamie Bulger. In both cases the tone of the Press and the tone of those who responded to the Press was that such children were the embodiment of evil and should never be released from imprisonment for life. In the absence of lifetime injunctions protecting anonymity, I have no doubt whatever that, if either Thompson or Venables were to be identified and located, he would be seriously injured or probably killed for the murder of Jamie Bulger. It was an appalling act but the period of retribution, I would suggest, is now past. The approach of this country is vastly different from parts of Scandinavia, for example Norway where such children would more easily be reintegrated into the community.
I am not suggesting that we should mollycoddle children who commit crimes, particularly very serious crimes. The state and the public have a legitimate interest in the administration of criminal justice. I also have no doubt that some children need to be brought up short and to be faced with the consequences of criminal behaviour. I do not, however, believe that there are many, if any, children who are intrinsically evil - although there may be some who suffer from severe mental or behavioural disorders or have other problems so that they may be unmanageable other than by draconian measures. We should, nonetheless, be very concerned that we have almost the highest numbers of young people under 18 in Western Europe in Young Offender Institutions.
The difficulty is that children in trouble, and particularly persistent offenders, are also children in need of help. Whilst we consider how to contain them for the sake of the public, we also need to be asking why they are offending. We must be careful not to write them off as beyond redemption. A better understanding of offending by children and its causes is required if we are going to be able to take strong and effective steps to reduce re-offending.
I should like to see a holistic approach to the family without the present rigidity between children who need help in the Family Proceedings Court by the intervention of the state through local government, and children who are prosecuted for offences. There was a policy decision at the time of the Children Bill in 1988/9 to make a clear division between care and juvenile crime, but I would suggest that it is too rigid. In many cases where children offend, particularly the persistent offender, there is most likely to be difficulties at home caused, for instance, by alcohol or drug dependency, domestic violence, mental health problems of a carer and so on. The most basic difficulty is the failure of the parents or parent to control the child. It may be that those families would benefit from assessment and assistance by the Family Court.
I believe that we must move to an overall appreciation that children in trouble need to be caught early and their problems dealt with in the context of the problems of their families. If we were able to do this we would have a chance to improve the behaviour of children; to reintegrate or in some cases, for the first time, integrate these children into the community and save years of adult offending with the enormous cost to the state. I should like to see the Youth Court given the jurisdiction to require the relevant local authority to investigate the family in accordance with the requirements of the Children Act and that in serious cases the local authority should be obliged to make a care application in the family court.
There is no doubt that this Government is in the process of making constructive efforts to look at what needs to be done. There are very good Government and charitable initiatives in various areas dealing with early intervention. There is a Cabinet Committee on Children and Young People's Services and there is a new Children and Young People's Unit. There is an Office of the Minister for Young People. There are several Departmental working parties. A Green paper on Children at Risk is due later this year. There has been a welcome Prime Ministerial initiative on adoption. The new Courts Bill and the integration of the magistrates courts with the Crown Court will give an impetus to the Youth Court in respect of which there are initiatives, I believe, in the pipeline. I just hope that they are all talking to each other across Departments and co-ordinating their efforts. There is a danger that resources will be used on individual enterprises and not on joint endeavours.
The Home Office's recent White Paper on Anti-Social Behaviour contains some interesting ideas on working within the community as well as punishing offenders. Many of these offenders will be children who commit acts of anti-social behaviour including repeated vandalism, graffiti, and joy riding, who are indifferent to school, not properly controlled at home and not receptive to help from outside agencies. These are a difficult group to manage, and the wider use of Restorative Justice and other constructive community-based alternatives to imprisonment might just help. Some charitable initiatives, such as Youth at Risk or C-Far in Devon, have already made a real difference to many such young people. If community-based initiatives were embarked on as a joint endeavour and not just limited to anti-social behaviour, they might conceivably do a great deal for problem families in need of help. This would require the initiatives of various Government Departments to be co-ordinated and streamlined. It would also require changes in the allocation of resources, but it has to be considered if we are to provide a reasonable life for those who follow us.
One final point I would make is that the bill for public funding is already too big and there are strains upon it which are difficult for the Legal Services Commission and the Government to control. It is worth however pointing out that those obliged to appear in the Youth Courts and in the family courts hearing care cases are usually the most socially disadvantaged groups in society and there has to be enough remuneration to obtain suitable legal representation.
(iii) Children whose parents part
I want to turn now to a wholly different area of concern that I have about children - those whose parents separate. This is a situation which does not get much publicity since other areas of child problems are clearly more immediate and more obviously serious. I have a number of worries about the effect on children, whose needs at the time of the parting of their parents and thereafter are often not uppermost in the minds of the parents who are locked into a failed relationship which has turned sour and acrimonious. Many parents do not realise that their children love both of them and do not want to choose between them. There are, of course, many good plans made by sensible parents for a continuing relationship with both parents, but there are also depressing failures that range from inadequate arrangements to downright hostility on one or both sides. This is itself an enormous subject and I do not have time in this lecture to address it.
At the point of and directly after the separation of the parents, there are various ways in which children are disadvantaged. Where violence between parents has been a factor in the breakdown of the family, children suffer quite seriously from a range of negative effects on their ability to live normal lives, do well at school, have confidence and self-esteem and when they grow up to make suitable relationships and become good enough parents. There is very disturbing research to the effect that children living in families where there is violence and intimidation do less well than their peer group and may do extremely badly. This may, of course, include offending.
Even where families are relatively "normal" and there has been no violence, children still suffer obvious disadvantages:- that they do not have their parents together, that they may have to move away from their home, school, and friends; that there will usually be less money.
There are equally important but less obvious disadvantages: - they may lose permanently or only see infrequently the non-resident parent not through long drawn out disputes but through parental decision. 60% of fathers have little or no continuing relationship with their children post-separation. Like children in care, I have no doubt that many children would wish to keep up this relationship. I am as worried about parents who fade from the lives of their children as that small group whose litigation makes the life of children a misery. That group includes the unreasonable applicant for residence or contact and the unreasonable respondent who refuses to allow the child to have a reasonable relationship with the non-resident parent. There seems little that can be done to galvanise absent parents to take an interest in the children left behind. But at least it should be more widely known.
Another disadvantage is the paucity of information given to children at the time of parting or divorce. A most interesting video made by a group of court users in Michigan several years ago taped the views of children of all ages who voiced their displeasure at being denied basic information about what was happening. The information was revealing and very sad. Some children believed that they were to blame for the parting. Other children were very distressed. Some children were angry. Few of the children knew the basic facts of what was going to happen to them or even whether they would ever see the non-resident parent again. Some fathers never said goodbye and they did not hear from the father again. It was worse than the death of the father since there was no opportunity for the bereavement process.
The longer term effect for some children of separated parents, many of whom were under stress, was to do less well at school and in their personal relations. Some of them were doubtful about forming adult relationships and how to become good parents themselves. Their role models in some cases had not been reassuring.
The Rights of Children
When one looks at the state of children - whether they be in care, in trouble, or in separating families - the conclusion is inescapable: Children have a right to expect better.
When I wrote the Cleveland Report in 1988, I said:
"The child is a person and not an object of concern."
In the light of multiple moves experienced by some children in care, I would add, children are people and not packages. As people, children are entitled not only to protection of their welfare, but also to respect for their human rights.
The perception of children as individual citizens with individual rights is one which has been very slow indeed to catch on. Perhaps that's because citizens' rights normally entail responsibilities too, which does not sit well with our view of children. Many philosophical questions could be posed as to the moral foundation for children's rights, their extent, and their compatibility with the concept of childhood and dependence upon others. Some are troubled by the dichotomy between rights and needs. I would subscribe to the simpler approach of Professor Hugh Bevan of Cambridge University who sets out two main and mutually compatible categories, protective and self assertive, that is to say the needs of children and the claims of children.
The decisions of adults inevitably have a considerable effect upon children whether directly aimed at them or as part of the consequences of the decisions made. The impact of parental breakdown, the decisions of the courts, schooling or exclusion from school, the effect of Government policy, legislation and guidance: each of these has a direct and resounding effect on the lives of children. In making our decisions, we concentrate on their welfare and our perception of their welfare. We do not try to think for ourselves what children would, if asked, and they are not usually asked, actually want for themselves.
I am not advocating child power or child decision-making. Clearly that would be wrong. Younger children would not be of sufficient maturity to be able to make important decisions about their future. Not even older children with sufficient maturity are always equipped to make such decisions, and nor should they be expected to take on such responsibilities. But I am recommending that children have a right to be informed as to what is going on and to have their views taken into account - even if, on many occasions, what they want cannot be achieved.
At the moment I do not think that those of us who make any sort of decision about a child or for a child are sufficiently putting the child's point of view and perspective into our thinking and our planning. I would suggest that it might be summed up as simple paternalism: we continue to think of children largely in terms of needs and welfare, with little thought of their rights. There are nonetheless organisations which have a concern for the rights of children as well as their welfare. The Committee of the United Nations Convention on the Rights of the Child is working to raise the profile of the rights of children - as can be seen in its second and far from positive report on the UK made in October 2002. The European Convention on Human Rights, perhaps oddly, does not refer to children, but the European Court at Strasbourg has certainly held that children have rights as well as welfare considerations. The government has not gone so far as to appoint a Children's Commissioner for England yet, although Wales has done so. Scotland and Northern Ireland are about to do so, and I hope we shall not be too far behind.
I do not believe that an awareness of children's rights has sufficiently trickled down to all levels yet. All disciplines, including judges and legal practitioners, should be asking ourselves these questions: are we really child-orientated, or are we somewhat condescending and complacent about our approach to children? Are we thinking about what is best for them, including having regard to their perspective, or are we simply imposing our own perspective? What are we doing about the rights of the child, and particularly on hearing the voice of the child? Do we respond properly to children? This is an area in which we could undoubtedly do better, and it is one to which we should all be turning our attention.
2. Excluded Families
I want very briefly to remind you that the concept of family is far wider than a heterosexual couple of father, mother and two children, sometimes termed rather oddly the "nuclear family". A family may consist of one parent and children, a couple without children, members of the same biological family sharing the same home such as grandparents and grandchildren, uncles and aunts, or friends who choose to share and may well create a different sort of family. The permutations are endless. For the purpose of this lecture, I propose however to limit myself to referring to three types of family who are excluded by and disadvantaged in our present legal system. These groups create a family life which is not sufficiently recognised in society and certainly not sufficiently respected by legal structures. These are families who do not or cannot marry.
The most obvious couple is the one who probably could marry but chooses not to do so. If they have children, their position with regard to the children is in most respects similar to those who are married. There is however no specific legal framework within which to deal for example with tax, separation or death, in such areas for instance as pension rights, and post-separation division of assets including the ownership of the family home. The current state of the law is complicated and often by no means clear. There is a widespread erroneous belief that there is a category of relationship called 'common law marriage' which is thought to carry with it rights and obligations. As far as I know, a common law marriage does not exist. Those who live in such relationships are often, especially the female partner, in ignorance of the paucity of legal remedies available if the partnership fails.
The two groups I feel are particularly placed in an unfair position are those who cannot marry and have no recourse to any system of law which gives them protection if they form partnerships, sometimes lifelong, which in their turn create a family structure.
(ii) Same Sex Partnerships
The first of the two groups is the same sex relationship. There is no specific legal framework to cover any family situation which may arise between those who form a same sex partnership. As with cohabitation there is no provision for pension rights or division of assets after separation other than the existing complicated law which has evolved over centuries for a somewhat different purpose. The House of Lords has given decisions helpful to tenancies after the death of the other partner. Otherwise, in the absence of a will or other disposition, there is no recourse - our legal system is not equipped to deal specifically with such a family. The Government has announced that legislation will be introduced to remedy this position. That is welcome news to all who feel, as I do, that the present situation is a continuing breach of the right of same sex partners to have a legal framework within which to make and to maintain their family life.
The second of the two groups is transsexuals. On birth it is necessary for the newborn baby to be registered as male or female. For most babies it is obvious. For a few babies there are physical abnormalities and it may be very difficult to make a decision as to in which category to place that child. The law provides a remedy for that person by application to the court for the rectification of the birth register. There is a further small but disadvantaged group who have no such redress. They are people who from their physical characteristics were correctly identified at birth but from an early stage find themselves to be psychologically attuned to the other category. Having been correctly identified at birth, they cannot change their registration from male to female or female to male later even if they have received hormonal treatment and sometimes undergone surgery. I believe we are the only country apart from Albania which does not provide for registration of change of gender in such cases. The European Court has been very critical for a number of years of the UK's failure to legislate for this group, and the Government is now pledged to bring in legislation. This will right a wrong to this small group of people who, amongst other disadvantages, cannot currently, even after gender reassignment, marry as they would wish to do.
The answer to the question in my title is 'yes'. We are failing the family. We are failing its most vulnerable members, children; and we are failing it in its traditionally less acceptable relationships. I hope that the adult groups, once the government initiatives to which I have referred are implemented, will finally be able to enjoy their rights to family life. I fear however that our attitude to children will take some serious fixing.
At the root of the problem, I'm afraid, is a cultural attitude that it's 'not my problem'. Children are seen as the responsibility of their parents and immediate family; and when that fails, the state. But has our ethic of individualism and relative morality taken us so far? To apply this view rigidly is to ignore the role of society, and the responsibilities which its membership entails.
What is needed is real in-depth reconsideration of how our justice system and the wider community should be responding to the needs of children and their parents. The ethos which infused the drafters of the European Convention after the Second World, many of them from the UK, is now part of our legal system. It has to move on and become part of our ordinary thinking. We need to be asking: Who is our neighbour? What are our obligations, as a community, to our neighbours? If we do not respond, we shall continue to fail the children and the families who need and deserve our help. The failure to take action will have consequences for succeeding generations and perpetuate the problems we face today.
Please note: that speeches published on this website reflect the individual judicial office-holder's personal views, unless otherwise stated. If you have any queries please contact the Judicial Communications Office.