PDSL5 Guidance on Meeting Children

Practice Direction - PDSL5

Guidance on Meeting Children

Introduction

1. This Guidance isrelevant to Judges dealing with Matrimonial Proceedings and Family Proceeding[1], Wardship Proceedings and Proceedings under the Child Abduction and Custody Ordinance (Cap 512).

2. Both our domestic law [2] and international convention[3] recognise that, in proceedings affecting the interests of the child, if that child is capable of forming his or her own views, that child shall have the right freely to express those views: directly or indirectly, whether in person or through a representative.  Meeting with a child in proceedings which affect the interests of the child may therefore be an important means by which a Judge is able to listen to the views of a child and give due consideration to them.  It cannot be stressed too often that the child’s meeting with the judge is not for the purpose of gathering evidence.  That is the responsibility of the social investigation officer.  The purpose is to enable the child to gain some understanding of what is going on, and to be reassured that the judge has understood him/her. 

Whether there should be a meeting

3. The decision to meet with a childis to be at the sole discretion of the Judge who may determine an application made to that effect or act on his own motion.  On whatever basis, the Judge may consider meeting a child if:-

(i) the child has, directly, or through his lawyer, orthrough any social investigation officer or lawyer representing either parent, indicated a desire to meet with the Judge.  The Judge should give proper consideration to a request from children who have been subjected to abuse and/or in high conflict situation.

(ii) there is a recommendation from a social investigation officer or the lawyerrepresenting either parent.

(iii) if in the opinion of the Judge, it appears to be in the interests of the child for such a meeting to take place.

Factors to assist the Judge in Making the Decision

4. In considering the need to meet with a child, a Judge maytake into account the following matters :-

(i) In deciding whether or not a meeting shall take place, the age and understanding of the child is relevant but not determinative.  Some younger children may have a clear understanding of their circumstances which they wish to express.

(ii) If the child does not wish to talk to the Judge, any meeting is unlikely to be in the best interest of the child.

(iii) If the proceedings have been brought as a matter of urgency and there is no social investigation report reflecting the views of the child, the Judge may consider this to be a factor favouring a meeting so that the views of the child may be ascertained without unduly delay.

(iv) If there is a need to consider the workability of shared parenting involving movement of the child between households, it may be important to listen to the child’s views, particularly if the child wishes to be heard.

Representations by the parties

5. When there is an application before the Judge or when the Judge decides on hisown motion to consider meeting with a child:-

(i) All parties shall be entitled to make representations as to any proposed meeting and in that regard may –

(a) advise the Judge whether or not the child wishes to meet the Judge;
(b) explain to the Judge, if it is a request from the child, the child’s perspective on the purpose of the meeting;
(c) advise the Judge, if it is an application by one or both parties, the purpose of the proposed meeting between the Judge and the child; and
(d) advise the Judge whether or not they consider the Judge should meet with the child by reference to the welfare interests of the child.

If the decision is made not to meet the child

6. If the Judge decides that a meeting would be inappropriate, the Judge should give brief reasons for that decision.

7. If a child requests a meeting and the Judge decides that a meeting would be inappropriate, the Judge should consider providing a brief explanation in writing to the child, that explanation being copied to the parties.

If the decision is made to meet the child

8. If the Judge decides to meet the child, he or she should give directions which should normally include the following:-

(i) the purpose of the meeting;
(ii) when and where the meeting will take place (e.g. the Judge’s chambers, the Courtroom or elsewhere);
(iii) who will attend the meeting (a Judge should never see a child alone);
(iv) how the recording of the meeting is to be carried out (e.g. either by audio recording or otherwise);
(v) any such other directions as the circumstances require including the need to prepare the child for the meeting and whose responsibility it will be to do this.

Commencement of the meeting

9. The Judge should explain to the child before the start of the meeting that a recording of the meeting is to be kept and that the contents of the meeting will be conveyed to the parents.  The child should be told that a Judge cannot hold secrets.

10. The Judge should explain to the child that the final decision of the dispute is his responsibility alone and he will arrive at that decision after considering all relevant factors.  The child must be assured in clear terms that the outcome is never the child’s responsibility.

After the meeting

11. The parties should be given an opportunity to respond to what has been said during the meeting, whether by way of evidence or submissions.

12. The Judge may consider that he or she will tell the child of the final decision of the hearing after having ascertained at themeetinghow the decision will be communicated to the child.

13. This Guidance shall take effect on 2 May 2012.

Dated this 28^th day of March 2012.