To Share or Not to Share, That’s the Question
Researchers from Leiden Law School have visited 59 court of appeal cases concerning children’s placements in alternative care. The research shows that although many children are heard in private by a judge, the issue of confidentiality is problematic.
‘Of course you have to tell everything the child has said to the parents’ – Baroness Hale of Richmond stated at her opening lecture for the World Congress on Family Law and Children’s Rights in Dublin 4-7 June 2017. The grand protectress of children’s rights within the English House of Lords was discussing cases in which the judge consults the child in private. Unlike the English system, it is common that judges in the Netherlands in child protection cases see children in private – provided that they are twelve years of age or older. In these cases judges only take a decision on a supervision order, a care order or the placement of the child into alternative care after they have provided the child with an opportunity to be heard. It is argued that this direct consultation with the child empowers children (Crichton 2006), and that it helps children to understand and accept the decisions taken (Parkinson, Cashmore and Single 2007). However, the question whether judges should, or even can, promise complete confidentiality when they speak with the children, remains problematic. And indeed, if the judge would not share with the parents what was discussed between him/her and the child, this might infringe their procedural rights as protected by article 6 and 8 of the ECHR. Approaching this dilemma through a children’s rights prism, is needed to find a proper balance between the rights of the parents and the rights of their children in relation to child protection proceedings.
Importance of children’s participation
The children’s right to be heard in child protection proceedings has been well established in the UN Convention on the Rights of the Child (art. 12 and art. 9-2 CRC). Also the European Court on Human Rights has stressed the importance of the child right to be heard in matters affecting him or her. Not hearing the child might even lead to a violation of article 8 ECHR. Moreover, the benefits of children’s participation in child protection proceedings are emphasised in many studies. Research has shown that children’s participation in the child protection decisions can increase the effectiveness of the interventions (Vis, Strandbu, Holtan & Thomas, 2011) and that it has a positive effect on the permanency of placements into care (Altshuler, 1999). However, putting the child’s right to participate in the decision-making process in practice, poses challenges for decision-makers, (Magnussen & Skivenes, 2015). One of the main challenges concerns the confidentiality of the information provided by the child.
Dutch Practice in Child Hearings
Our recent research ‘Children’s participation in appeal decisions against placements of children into care’ by Maria de Jong and Kartica van der Zon, on the practice of child hearing in the Netherlands has shown that judges deciding on the placement of children in alternative care very often consult the children involved in private before reaching their decision, provided that the children have reached the age of 12. This practice is in conformity with Dutch law, which obliges judges to provide these children with the opportunity to be heard. However, it is also shown that judges struggle with the question of confidentiality, and this comes to the fore at different stages of the proceedings. One important dilemma is whether judges should share the content of the conversation with the parties involved (i.e. parents), thereby providing them with the opportunity to respond. A second question is whether the opinion of the child should be recorded in the written judgement.
In our research, we attended 59 sessions including the private conversation between the judge and the child, documented the conversation, and studied the written judgements. In relation to the issue of confidentiality we found that judges have different ways of dealing with this issue. Some judges would start the conversation with the child by stating that the child should not reveal to the judge any secrets as the judge would be obliged to share them with the parties involved. Unsurprisingly, this made children very reluctant to share any information. Other judges would save this issue for the end of the conversation. After their talk they would ask the children whether there was anything they could not share with the parties. However, if the child requested that certain information shall not be shared, this placed the judge in a difficult dilemma.
For example, if the child said that he or she had been abused, this information would be extremely relevant for the decision. Therefore parent’s procedural rights would oblige the judge to share this information and thereby breach the requested confidentiality. Not sharing the information on the other hand would require the judge not to take this information into account. It seems though unlikely that a judge, deciding on child protection measures, would ignore statements by children claiming to be abused at home.
When it comes to confidentiality in the written judgements we found that judges were very reluctant to record the opinion of the child. Almost without exception, the judgments did not refer to the child’s opinion. However, the reason for this seemed not to be parent’s procedural rights. When asked, judges would state that they did not refer to the views of the child, because they wanted to avoid children feeling responsible for the decision taken. As a result, this confidentiality was based on the judges' interpretation of how to protect the child’s best interests.
Children’s rights and confidentiality
Yet, what would happen to this dilemma if it was approached from a children’s rights perspective? Children do have a right to privacy (art 16 CRC and 8 ECHR). More specifically, several children’s rights documents have referred to the issue of confidentiality. The Committee on the Rights of the Child for example has stated that ‘preferably, a child should not be heard in open court, but under conditions of confidentiality’ (par. 43). According to the Guidelines on Alternative Care records of the conversation could be made available to (..) the parents or guardians, within the limits of the child’s right to privacy and confidentiality (par. 111). From a children’s rights perspective it can thus be argued that the procedural rights of parents should be balanced against the rights of their children. Within this balancing exercise the interests of the child is a primary consideration. This indeed gives judges some leeway in protecting the child’s confidentiality. For example judges could decide to paraphrase the information shared, so that it no longer contains specifics, but still reflects in general terms the opinion of the child.
When it comes to the judgments it can be argued that the assumption of Dutch judges that they cannot give any information on the child’s opinion in their judgments is in fact quite paternalistic. In most cases children would not have any objection to the information being shared. Moreover, the decision-maker has to inform the child of the outcome of the process and explain how his or her views were considered. As stated by the Committee on the Rights of the Child, this feedback is important as it serves as a guarantee that the views of the child are not only heard as a formality, but are taken seriously and actually have an impact in the decision-making process. When it comes to this point – making sure the rights and opinion of the child are carefully reflected upon in the judgment, the eloquent judgments of Baroness Hale of Richmond could serve as an example of how to hear children and reflect their views sensibly in the judgment.