SUBMISSION TO THE HEALTH, SOCIAL SERVICES AND PUBLIC SAFETY COMMITTEE

THE FAMILY LAW BILL

This submission is made on behalf of the Children’s Law Centre, which is a registered charity established in September 1997.We carry out research, provide training, information, advice and representation in relation to children’s rights in N Ireland.

Our arguments are grounded on principles enshrined in The United Nations Convention On the Rights Of the Child, The European Convention On Human Rights as incorporated by The Human Rights Act 1998 and The Equality Provisions of The Northern Ireland Act 1998 (all attached for ease of reference at Appendix A).

We welcome the fact that the important issue of responsibility for children is being debated.

THE UNITED NATIONS CONVENTION ON THE RIGHTS OF THE CHILD

KEY RELEVANT ARTICLES

Article 3 The best interests principle

Article 12 The right of the child to express his or her opinion and to have that opinion taken into account in any matter affecting the child

Article 7 The right of the child to a name at birth and as far as possible to know his or her parents and be cared for by them

Article 8 The right of the child to preserve his or her identity and family ties

Article 9 The right of the child not to be separated from his or her parents unless this is in the child’s best interests.

Article 16 The child’s right to protection from interference with privacy, family, home and correspondence

Article 18 Parents have common responsibility for the upbringing and development of their children. Parents or legal guardians have the primary responsibility for the upbringing and development of children in their care.

The State shall provide the appropriate assistance to parents and guardians in child-rearing responsibilities and shall ensure the development of institutions, facilities and services for the care of children.

Article 19 The right of the child to be protected from abuse and neglect

Article 36 The child has a right to protection from all forms of exploitation prejudicial to any aspect of the child’s welfare.

THE HUMAN RIGHTS ACT INCORPORATING THE ECHR

ARTICLE 3 ECHR Children have the right to be protected by the State from torture, inhuman and degrading treatment. This article has been argued in the European Court of Human Rights in the context of the protection of children from physical harm and from child abuse and ill treatment. It is clear that there is a positive obligation on the State to ensure that children are protected from ill treatment.

ARTICLE 8 ECHR Children as well as adults have a right to family life and to privacy. Family life is a wide concept and means people with whom there are "close personal ties". Family life is not restricted to those with parental responsibility. This wide definition of family life is reflected in Article 5 UNCRC.

ARTICLE 6 ECHR It has been clearly established that the right to a fair hearing extends to the field of family law and applies to administrative as well as judicial processes in this regard. Recent case law suggests that in order for a child to have a fair hearing, they must be able to participate and understand proceedings in which they are involved. This is an important concept and is strengthened by Article 12 UNCRC.

S75 Northern Ireland Act 1998; the duty to promote equality of opportunity between men and women generally, between persons of different marital status, between persons of different ages, between those with dependants and those without, between persons of different religious belief, political opinion, racial group, sexual orientation, between persons with a disability and without.

CONSULTATION AND IMPACT ASSESSMENT

We note from The Explanatory Document that a consultation paper was sent out to 185 organisations in July 1999.

The obligations under s 75 of The Northern Ireland Act 1998 have to be considered in relation to the requirement that due regard be given not only to the promotion of equality of opportunity between persons of different marital status and men and women generally, but also between persons of different ages.

In this regard we would be interested to know whether any consultation has taken place with young people about their views on the proposed changes to the law on parental responsibility. They may have strong views on the importance of knowing one’s identity and parentage or about being denied contact with a parent who no longer lives in the family home. They may have views on the input that absent parents should have on their day to day lives for example should a parent whose name is on the birth certificate, but who has not had any recent contact with the child have automatic access to school records or be able to withhold consent to medical treatment? They may have views on being physically restrained into giving DNA and blood samples when they have a genuine reason for refusal. It is only by talking to children and young people themselves that we will ever know more about these issues.

We recommend direct consultation with children and young people with a clear explanation given about the meaning of parental responsibility and about blood testing and DNA testing. The consultation should endeavour to investigate the perception that children and young people have of family life and responsibility for their care and upbringing.

We recommend that an impact assessment be carried out in relation to the proposed changes to the law under The Family Law Bill.

BLOOD TESTING/ DNA TESTING

The Family Law Bill seeks to extend the powers of the court to order the taking of bodily samples for resolving disputes about parentage. There is no doubt that this would make the results more certain. Our objection to this proposed legislation in relation to the taking of blood tests and DNA samples from children is as follows;

The Family Law Bill amends the Family Law Reform (NI) Order 1977 to enable courts to direct the taking and testing of bodily samples for the purposes of determining parentage. At present the courts can only direct blood tests. Article 3 of The Family Law Bill deals with these amendments.

Article 65(3) Child Support and Pensions Bill amends Article 9 of The Family Law Reform (NI) Order 1977 in relation to consents required for such tests. It replaces the wording of the old order which said, "If the person who has the care and control of him consents" to

If the person who has care and control of him consents; or
where that person does not consent, if the court considers that it would be in his best interest for the sample to be taken.

This clause is obviously designed to prevent the parent with care and control "vetoing" the tests being done. In the past this resulted in children being denied certainty in relation to their parentage. It is quite clear from English case law that there was a concern that the courts were unable to order that tests be carried out, but could simply make a direction in this regard in England. From a child’s perspective however the Bill does not mention the child’s consent. Our view is that subject to age and understanding the child’s consent should be obtained or at least Article 65(3) b) should make reference specifically to the ascertainable wishes and feelings of the child concerned in accordance with Art 3 Children (NI) Order (the welfare checklist). Article 65(3) b) should state: "that where either the person with care and control does not consent or the child does not consent, if the court considers that it would be in the best interest of the child for the sample to be taken."

We are aware from Hansard that an amendment was proposed to the Child Support and Pensions Bill in relation to consent of the child. The debate did not reflect the key question of the child’s consent. We are not implying that a parent with care or a child should be able to thwart DNA or blood testing where the court deems this to be in the best interests of the child, after consulting the child and applying the welfare checklist at Article 3 Children (NI) Order 1995.

The Family Law Bill does not discuss consent at all. Young people aged 16 and over are capable of giving valid legal consent in their own right and this is not reflected in this draft legislation. A further difficulty, which arises from a children’s rights perspective is in relation to a child under 16 who is refusing consent.

Article 12 UN Convention On the Rights of the Child states that any child who is capable of forming their own views must be given the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child. In our view therefore there should be a mechanism for referral to a court where the child refuses consent and not just where the adult with care of the child refuses. The decision made by the court should be guided by the best interests of the child, with regard to the welfare checklist under Article 3 Children (NI) Order1995. In the case of Re A (A Minor) (blood tests: constraint) 1998 Fam66, 1998 1FCR41, it was held that under the English law governed at that time by s20 FLRA 1969, whilst there was an absolute embargo against forcing an adult to supply blood against their will there was no such bar against ordering the supply of blood from a child even to the extent of ordering physical constraint against him/her. However, it was considered that the best course of action in such cases might be to allow the Official Solicitor to represent the child in cases where consent was withheld. However in Re O (A Minor) (Blood tests; Constraint) 2000 2 All ER 29 Wall J stated that in his view under the English legislation the person with care had an absolute right to withhold consent. The court could simply direct blood tests but could not enforce them. In his view the child had a right to know the truth about his or her parents unless the child’s welfare justified the "cover up".

We agree that the child has a right, but not a duty, to know his or her parents and this is reflected in Article 7 UN Convention On The Rights of The Child. We agree that one parent should not be able to veto tests and that the decision making process should always be grounded in the best interests of the child. However, in the event of a child withholding consent to DNA tests or blood tests at any time, we would recommend that the balancing exercise between the rights of the child to know his/her parent and the child’s overall welfare and best interests be carried out by a court, with independent legal representation provided for the child. The court mechanism would at least allow for the child to voice their opinions and to have the benefit of advice and guidance from their own independent legal representative.

We are confused about how the Child Support & Pensions Bill and The Family Law Bill fit together. The position under s15 of the Child Support and Pensions Bill relating to presumption of parentage should now reduce the necessity for blood testing or DNA testing to be carried out as there is a presumed liability for payment of child maintenance where either a) a non resident parent whose name appears on the child’s birth certificate does not rebut the presumption that he is the father or b) where the parties were married at the time of conception and there is no rebuttal of parenthood.

In the cases where it remains necessary to carry out blood testing or DNA testing, is it the case that the CSA will refer the matter to court for a declaration of parentage if the parent with care refuses consent and at that stage the court will have to make a decision grounded on the best interests of the child? If so, there is no mechanism for referral to court if the child refuses the testing to be done, because CSA only need the consent of the parent with care and control. It is essential that the best interests of the child is central to the decision making process and not financial considerations. We would not like to see any administrative decisions being made, which could result in the physical restraint of a child.

We realise that many cases involve babies and young children who will not be able to voice their views and feelings but older children do become involved in these disputes.

We would like to ensure that the child’s right to physical integrity as enshrined under Article 8 ECHR is not breached by testing against a child’s will where the court has not been able to evaluate what is in the best interests of the child concerned. The child also has a right to a fair hearing under Article 6 ECHR and a right to freedom from inhuman and degrading treatment under Article 3 ECHR and it important that these rights are protected in any proposed legislation.

Finally it is essential that the identity of testers is carefully regulated and controlled. The position in England is that the Lord Chancellor holds an approved list of testers. All testers carrying out tests on children should be PECS checked. The tests carried out should be strictly regulated and should relate only to the child’s parentage. The arrangements for storage and retention of DNA samples should be made clear to all parties concerned and transfer of information between agencies should be prohibited.

We recommend that the child should have a right to participate in the decision making process, in relation to blood testing and DNA testing.

We recommend that if the child refuses consent to a test, the matter should be referred immediately to a court, which should make a decision on the principles of the best interests of the child. The legislation should make explicit reference to the refusal of consent by a child and to the Article 3 checklist of The Children (NI) Order 1995.This would ensure compliance in terms of Article 6 ECHR as incorporated and Article 12 UNCRC.

We recommend that the child should have the benefit of separate legal representation in cases where consent is withheld.

THE ACQUISITION OF PARENTAL RESPONSIBILITY

The UNCRC states at Article 18 that recognition should be given to the principle that both parents have common responsibilities for the upbringing and development of their children.

Article 18 requires that services be provided by the State to ensure that parents and guardians of children can look after children properly and, in this regard; Article 18 is linked to Article 27, which requires the State to ensure that children have an adequate standard of living. It presupposes a level of commitment and care for the child concerned and looks at how the State can help parents/ guardians in a caring role to provide for and support their child’s health and development.

The Explanatory Notes accompanying The Family Law Bill at paragraph 5 point out that from a child centred point of view the low take up of parental responsibility orders and agreements by fathers means that there are many children who do not have a legal relationship with their fathers in N Ireland.

In our view the meaning of the UN Convention provision is much wider than a "legal relationship". It means that parents should be assisted to bring up their children in a meaningful way and that family ties should be respected. This envisages a positive contribution, not a passive one from the parents themselves.

A legal relationship can, as we know unfortunately be meaningless to a child if they are not cared for properly. It is also a very adult perception of the relationship between parent and child. Whilst we appreciate the importance of a legal relationship between parents and children, we would prefer to see the emphasis of any legislation, affecting children to be grounded in the best interests of the child and the care, development and protection of the child.

An emphasis should be placed on the need to provide services such as contact centres and family support services to help parents have a meaningful relationship with their children, particularly in relation to facilitating contact arrangements, where it may be necessary to have a third party present. This would require additional resources for social services to be able to develop services in this respect.

In relation to the low take up of parental responsibility orders and agreements, many parents may not be aware of the fact that they do not have parental responsibility and an awareness-raising programme about the need to apply for an order or enter into an agreement would perhaps have been helpful in this regard. Consultation with solicitors dealing with applications for parental responsibility on a daily basis would be necessary to ascertain whether there are particular difficulties arising in relation to the granting of parental responsibility orders by the courts

The primary concern in decisions about parental responsibility must be the best interests of the child. Children should have the right to separate legal representation in contentious proceedings.

Ideally, of course children have the right to family life with parents/carers/relatives with whom they have close personal ties pursuant to Article 8 ECHR and Article 9 UN Convention. The definition under the ECHR of family life does not relate solely to parents, but is much wider encompassing all those with whom the child has close personal ties. Children also have the right however, to be protected from harm and from interference with their family and private life. The position in relation to parental responsibility may be particularly complex in family situations where there has been domestic violence or abuse.

It is important that any changes to the law on parental responsibility recognises that a balance must be struck and that there are effective safeguards to protect children in place.

In relation to the ECHR, we agree with the conclusion in the Explanatory Notes that the domestic law as it stands, which requires unmarried fathers to apply for leave from the court for parental responsibility or to draw up a parental responsibility agreement is not incompatible with either Article 6 or Article 8 ECHR. For unmarried fathers who wish to proceed with an application for parental responsibility, the mechanism of accessing a court and lodging an application under the Children (NI) Order 1995 is usually straightforward for an applicant although there may be issues in relation to entitlement of legal aid in this regard. The European Court when examining the issue of leave stated in the case of Mc Michael v UK;

" It is axiomatic that the nature of relationships of natural fathers with their children will inevitably vary from ignorance and indifference at one end of the spectrum to a close and stable relationship indistinguishable from the conventional matrimonial family based unit at the other. The aim of the relevant legislation is to provide a mechanism for protecting the interests of the child and the mother. In the court’s view, this aim is legitimate and the conditions imposed on natural fathers for obtaining recognition of their parental role respect the principle of proportionality"

We do not have, however, any research as to the success or failure of such applications or difficulties in the court process itself encountered by unmarried fathers and as stated above it would be essential in terms of the equality debate for the Committee to obtain information about this, which would be relevant to Article 8 and Article 6 rights.

The acquisition of parental responsibility is not a matter, which can be taken lightly. As stated by Ward LJ in Re S (parental responsibility) 1993 1 FCR 85,

" It is wrong to place undue and therefore false emphasis on the rights and duties and the powers comprised in parental responsibility and not to concentrate on the fact that what is at issue is conferring upon a committed father the status of parenthood…."

Parental responsibility gives a parent automatic rights in relation to decision -making processes in relation to their child’s name, health, religion and education.

It is for this reason that we are concerned that proper consultation and debate takes place about the amendments to the acquisition of parental responsibility, which the Family Law Bill proposes. It is essential that women and women’s groups, groups representing fathers and fathers themselves be properly consulted about the effects of the proposed changes. It is also essential that consultation take place with the legal profession dealing with these issues on a day-to-day basis.

Most importantly, however, we would like to see consultation with children and young people themselves about the important issues raised in this consultation document, about their views on family, responsibility and consent. We would have thought that the question of whether a legal relationship exists with their parents/carers would be secondary to the importance of the care, support and commitment they receive.

We recommend that consultation takes place with children and young people about their perception of family life, care, responsibility and consent.

We recommend that any decisions about the care of a child should be made in the child’s best interests, using the welfare checklist at Article 3 Children (NI) Order 1995. The central issue in this Bill should be the appropriate care of and responsibility for children. In the context of any equality debate between fathers and mothers, which appears to be the basis for these proposals, the child’s needs should be central and any decisions should be firmly grounded in the paramountcy principle.

We recommend that the child should have separate legal representation in contentious cases.

We recommend that a holistic approach be taken to support for a child’s family life, with a review of family support services available for both parents with whom the child resides and non-residential parents.

The research referred to in the Explanatory Notes is in our view inconclusive and further research should be carried out as to the reason for the low numbers of parental responsibility orders and ways in which this could be helped. It may be that unmarried fathers do not have the information they need to apply for an order or agreement or may not be aware of the necessity to make an application. We recommend that some awareness raising should take place with unmarried fathers about the need to enter into a parental responsibility agreement or obtain a court order.

We recommend that a full impact assessment be carried out on these proposals for reform.

CHILDREN’S LAW CENTRE, FEBRUARY 2001