A more recent version of these Fortin Rights Substance Or Spin notes – written by Oxford students – is available here.
The following is a more accessble plain text extract of the PDF sample above, taken from our Family Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:
Fortin - Rights - Substance or spin?
CAFCASS is meant to make reports on children It is terribly underfunded and regularly delivers its reports late Staff morale is normally quite low - chief executive resigned a little while ago.
In the past, of course, these children would only rarely have been separately represented in court. Indeed, until quite recently, CAFCASS' main function in private law disputes was to provide the court with background information about the children involved, if and when a court welfare report was requested. But spurred on by the antics of the fathers' groups in 2004-2005, there have been concerted moves to divert warring parents from court by dint of far more intensive 'dispute resolution work' (set up by the Private Law Programme in 2004) serviced by CAFCASS o They now don't do as much writing of reports, but much trying to persuade parents not to dispute and resolve their problems without going to court
? But what happens if this fails? Will they be able to accurately give the views of children?
? Similarly, during the negotiations, are children considered as much?
Children don't need an inadequate report on them (1/3 don't meet required standards) o They need representation in court
Mabon v Mabon
The judge decided that they did not realise the emotional damage they would suffer if they got involved o The Court of Appeal disagreed. Thorpe LJ clearly considered that these were
'welfare' considerations which, being essentially paternalistic, did not get to grips with what he called 'the autonomy of the child and the child's consequential right to participate in decision-making processes that fundamentally affect his family life' (Mabon, at para ). In his view, since these young men were very articulate and perceptive, they clearly had the required powers of comprehension to instruct their own solicitor. He emphasised that the courts must come to terms with children's right to be involved in litigation, as protected by their right under Art 12 of the UNCRC to express their views and, by their right to private life, under Art 8 of the European Convention Thorpe LJ indicated an admirable commitment to the concept of children's rights. Nevertheless, as explained elsewhere, his reasoning may create problems in the future
? What if he too had thought it would damage these young men to be allowed to instruct their own solicitor? He implied in his judgment that he could then have used the 'welfare principle' to override their wishes, as if it were an alternative option to arguments about rights
? But it is arguable that when a judge is convinced that by asserting a right, a young person's longterm interests would be severely damaged, he should conclude that he or she simply does not have that right. Indeed, with respect, it seems nonsensical to suggest that a child's rights can include an ability to pursue clearly predictable psychological harm. These may appear to be fine distinctions. Nevertheless, it is essential for the courts to clarify how to deal with situations where children claim rights which they consider will harm them Mabon was, in many ways, a reasonably straight forward case --- the only obvious conflict being between the young men's own interests --- between their claimed right to autonomy and their right to protection from following a damaging course of action. In some cases, however, there is an added
Buy the full version of these notes or essay plans and more in our Family Law Notes.