Association FrançaiseRead the text in word format (102 pages)
Muriel Eglin, French Judge
Présentation en français :
Le juge des enfants en France et en Angleterre : analyse comparée - juin 2001.
De chaque côté de la Manche, les enfants en grave danger sont protégés par la justice. Les deux systèmes sont différents dans leur organisation et dans leurs finalités : quand le juge français recherche la restauration de l’autorité parentale et revoit régulièrement l’enfant et sa famille, le juge anglais prend une décision définitive qui vise à la stabilité de l’enfant. Au travers du champ de compétence de la justice, du rôle du juge, du déroulement de l’audience, des types de mesures possibles et des relations entre le juge et les services sociaux, c’est la philosophie de la protection de l’enfance dans chacun de ces pays qui apparaît. Ce rapport de mastère rédigé en anglais date de juin 2001.
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All child protection systems deal with the same problems of child abuse and parental inability to meet their children’s needs, even if the kind of difficulties may vary according to the level of development of the country and to geographical circumstances. However, the protection system each country develops is the product of national culture and ideology about the family, the child and the legitimacy of state intervention.
England and France have different approaches to the relationship between the citizen and the state, which may find their roots in the distinct theories of social contract. For Thomas Hobbes state authority is essential to regulate the competition of individuals’ self-centred interests, the latter having no moral or social obligations to each other. Therefore, state intervention is limited to the punishment of transgressing behaviour and has no legitimacy outside this scope. Likewise, the individualistic approach to the family makes it a bulwark in favour of individual rights against state power and “a space for the promotion of individual personality”. The importance of the family in child protection finds its expression in the emphasis on privacy and is furthered by the legitimacy of substitute families and the importance of factual parenthood.
By contrast, Jean-Jacques Rousseau thought that the state was not an external authority sanctioned by force, but the product of a democratic consensus having a duty to realise the will of the majority. The modern concept of social solidarity is entrenched on the third concept of the revolutionary French motto “Liberté, Egalité, Fraternité” and on the Catholic heritage. It produced an intimate and mutually supportive connection between the society and the family, but also an ideal of integration, which denied cultural differences and conflicts of interests. The birth family, central to the “fabric of society”, remains the main legal reference in the way children are defined, well before the concept of individual holders of rights.
In The Children Act in context : Four perspectives in Child Care Law and Policy, Lorraine M. Fox Harding outlines four different perspectives of child care law and policy. The laissez-faire and patriarchy approach favours a minimum state intervention in the family, whose privacy will be disturbed in extreme circumstances, in order to remove the child and find him/her a new permanent home. The state paternalism and child protection perspective supports an extensive coercive intervention to protect the child, both with prevention and permanency planning. The defence of the birth family and parents’ rights emphasises the need to keep the birth family intact through assistance and without coercion, at the expense of children’s independent rights. Finally, the children’s rights and child liberation perspective promotes children’s autonomy and endorses the view that they need empowerment rather than protection.
At first sight, the English conception of the role of the state seems to be a model of laissez-faire approach, whereas the French one fits into the defence of the birth family perspective. However, the application of this classification to what England calls “Care and Supervision” and “Protection of Children” and France calls “Assistance éducative” (assistance in the upbringing) gives a picture of different combined approaches (see following chapters) and helps to understand the differences between these systems as well as to compare their development.
Chapter I. The background of the child protection systems
A. In England
R. Dingwall, J. Eekelaar and T. Murray argue that until the end of the 19th Century, child protection had never been a concern of the State, and that the main worry was the threat that inadequately moralized children represented to the social order. In the Poor Laws, criminality and pauperism were linked and the Youthful Offenders Act 1854 allowed courts to send to reformatory schools, children who had committed offences or were in need of care, protection and control. However, along with the distinction, drawn by Mary Carpenter, between “perishing classes” and “dangerous classes”, offenders received a more punitive treatment.
The first system of child protection was created by the Prevention of Cruelty to Children Act 1889 : children could be removed from cruel parents and committed to the care of a “fit” person. The inter-wars period showed complacency due to the improvement of social conditions and the reliance on the NSPCC’s work, and after the Second World War, the government suggested more co-operation within the statutory framework rather than a change.
In 1963, the Children and Young Person Act placed a duty of prevention on local authorities, after the recommendations of the Ingleby committee, in order to avoid children going into care or appearing before the juvenile courts as offenders. Concern about child abuse started at the same period, after the publication of Kempe’s article The Battered-Child Syndrome, and developed considerably after the inquiry on the death of Maria Colwell in 1973, killed by her step-father after having been returned home from care. The number of referrals grew sharply. The Children Act 1975 focused on the needs of the child and the promotion of better decision-making, but the practice was closer to a “crisis management”, children being cut off from their families and experiencing frequent placement changes.
Reports on child abuse inquiries in the 1980’s attracted considerable public attention and focused on the failures of social workers. Among them, the Jasmine Beckford report advocated a very legalistic approach to social work and criticised social workers for not using their statutory powers promptly and firmly enough. This view had a strong influence on social work practice and three years after, social workers were criticized by the Cleveland report for their overzealous intervention.
Children’s progressive autonomy was recognised by a 1985 House of Lords’ decision, Gillick v West Norfolk and Wisbech Area Health Authority. Parental right to control a minor was described as a dwindling right. The extent and duration of which depended on the degree of intelligence and understanding of the child in question.
At the same time, it was assumed that public expenditure in child protection could be cut by putting more emphasis on parental responsibility : “there were calls for the state to retreat from interfering in the family and, as far as possible, to re-establish it in the private sphere and thus place it out of reach of the dependency culture”.
The Department of Health undertook a wide consultation and published a Review of Child Care Law . Its recommendations were accepted by the government in the White Paper The Law on Child Care and Family Services . The Children Act 1989 attempted to take into account the research findings and criticisms of the previous legal framework and practice. It is largely based on a consensus because it endorses values of family privacy and responsibility and also promotes support for and partnership with the family, so as to avoid the need of care proceedings. Children’s wishes and feelings have to be ascertained and given due consideration by local authorities and courts at various stages of the proceedings. Social workers and courts are expected to intervene within a tight statutory framework that defines duties and powers.
In The End of the Century of the Child ? , Michael Freeman suggests a recent shift in the ideology from child protection to family support : until the middle of the 1990’s, the emphasis was on securing the safety of children at risk of serious abuse. In Child Protection : Messages from Research, the Department of Health emphasised the disastrous consequences of inappropriate cases being caught up in the child protection process, both on the possibility of further partnership with the family and on the repartition of resources. The accent is now on rehabilitation and avoidance of placement outside the family.
The European Court of Human Rights’ case law sets up new standards in child protection, imposing on states a duty to protect children from abuse committed by private individuals, to prevent ill-treatment and to provide for effective remedies against public authorities failures. It also gives guidelines as to the balance to strike between the right to privacy (article 8 of the Convention) and the legitimate aim of protecting children’s interests. The implementation of the Human Rights Act 1998, in October 2000, has a further impact on child protection : Convention rights are now part of domestic law and new remedies are made available for their violation. There are now concerns over the risk of exploitation of the 1998 Act by adults “to promote parents’ rights at the expense of children’s rights”.
B. In France
Before the Revolution, the Catholic Church was controlling charities that rescued poor families and abandoned children. Thus, they organised a paternalistic social control over families’ morality and the way they brought up their children. The Monarchy looked after abandoned children with a view to employing them in the army. Support and control were intertwined.
The generous ideas of the Revolution led to the creation of a right to assistance, which could not be fully implemented due to the 1792 war. It also led to an appropriation of children by the state with a view to educating them to the new republican ideals. Napoleon Bonaparte’s Code civil proclaimed family privacy and restored paternal powers.
A joint concern for children’s right to protection against parental abuse and for the multiplication of vagrant children and young offenders led to the adoption of the 24th July 1889 law on decay of paternal power, fathers being held responsible for both private harm and public disorder. Child protection was organised by charities and l’Assistance Publique, a national administration.
The 19th April 1898 law on punishment of violence, cruelty and assaults committed on children increased child protection. However, placement in foster families was found unsuitable for certain categories of children and the 30th June 1904 law on the education of difficult and vicious children within the Assistance Publique created new educational institutions, later called bagnes d’enfants (convict settlements for children) after their disciplinary regime.
The first system of non-punitive child protection by courts was set up by a décret of 30th October 1935. It was an alternative to the withdrawal of paternal power, where the health, the security, the morality or the upbringing of a child were jeopardized as a result of parents’ behaviour. Proactive welfare policies were first implemented during this period (family benefits in 1932) and continued under Vichy government (creation of a national union of families, with a view to promoting families’ interests among administrations) and after the war. The 1946 Constitution proclaimed economic, social and cultural rights.
Juges des enfants were first appointed by an ordinance of 2nd February 1945 to deal with young offenders. They soon realised that the children they had to deal with had appalling family backgrounds and that administrative help and the system of withdrawal of paternal power were unsatisfactory. The ordinance of 23rd December 1958 creates the modern concept of assistance éducative (assistance in the upbringing), initially as a global help to the family to cope with its difficulties in order to prevent the children’s involvement in the criminal justice system. It was also designed to avoid civil sanctions such as the withdrawal of paternal power.
If many important changes have affected family law since 1970, the legal framework of the juge des enfants’ intervention has not been changed and the practice developed its own rules, on a “family therapy model” of intervention. However, there is now a general concern for a stricter and fairer application of the law and for the promotion of parents and children’s rights (see further chapters). At the time of the signature of the Convention on the Rights of the Child, some juges des enfants voiced their concern about the adequacy of emphasising children’s rights rather than their need for protection. They warned rights’ supporters against the subsequent risk of interfering in a destructive way with the relationship between children and parents, and of burdening children with the same responsibilities as adults. The Cour de Cassation, in a 10th March 1993 decision, ruled that the Convention did not have a direct effect, i.e. it only creates obligations for member states and therefore cannot be invoked directly by a party in a family proceeding. However, the administrative court, Conseil d’Etat, decided on 22nd September 1997, that some of the provisions of the Convention were directly applicable, especially article 3 (1) (the child’s interest must be a paramount consideration). Following this movement, a 6th March 2000 law created a Défenseur des Enfants, with functions of ombudsman (art 1) and the possibility of referring cases to the Président du Conseil Général and to the procureur (art 4).
Chapter II. Different jurisdictions
A. In England
1. Child protection cases are family proceedings
Before the Children Act 1989, different courts dealt with public and private law, applying different pieces of legislation. The High Court’s wardship jurisdiction “straddled the divide between private and public law”, making it possible to put a child into care outside the statutory framework of child protection. The Children Act greatly simplified the law and clarified the procedures, drawing together both the private and public law under a single statutory scheme. Magistrates’ courts, county courts and the High Court have the same jurisdiction and powers in public law proceedings. Article 3 of the Children (Allocation of Proceedings) Order 1991 provides that these proceedings should commence in the magistrates’ court. The case can be transferred upwards when it is of exceptional complexity or gravity, or in order to consolidate with other proceedings and avoid any delay.
The main principles of the Act (Part I) apply to both. When making a decision on an application of a local authority for a care or a supervision order, the court can only make an order if it is satisfied that this is better than making no order. This preference for the less interventionist approach is consistent with a “laissez-faire” perspective. Furthermore, the court can always make a private law order rather than a care or a supervision order and retains its powers to make s. 8 orders even if the threshold criteria have not been satisfied. This possibility gives much flexibility to courts’ intervention, allowing them to make a residence order in favour of a member of the family or any third party if the child’s welfare dictates it to do so.
There are several bridges between private and public law proceedings. Firstly, s. 37 of the Children Act allows the court to direct the local authority “to undertake an investigation of the child’s circumstances” when a public law order appears appropriate in the course of family proceedings. However, it does not allow the court the possibility of initiating public law proceedings : although the local authority has to give its reasons when it undertakes an investigation under s. 37 and decides not to apply for a care or supervision order, the court has no power to direct the local authority to initiate care proceedings. In Nottingham County Council v. P, Sir Stephen Brown said :
“if a local authority doggedly resists taking the steps which are appropriate to the case of children at risk of suffering significant harm it appears that the court is powerless”.
Secondly, family assistance orders, directing a local authority or a probation officer to assist, befriend and advise the person named in the order, can be ordered in private law proceedings when the circumstances are exceptional. They are especially useful to allow a supervision of contact between a child and one of his/her parents when the threshold criteria for a s. 31 order are not met.
Yet, the Children Act 1989 clearly separates public and private law by imposing a threshold, above which the forcible intervention of local authorities in the day-to-day care of the child is not possible. To ensure the respect of this boundary, courts’ powers and local authorities’ possibility to apply for a private law order are limited : local authorities cannot obtain a contact order, a prohibited steps order or a specific issue order in respect of a child in their care and cannot obtain a residence order or a contact order for other children. For the same reason, wardship and care proceedings are made incompatible.
2. Separation of child protection from juvenile justice
Prior to the Children Act 1989, Juvenile Courts’ jurisdiction could be compared to the French juge des enfants’, dealing with both public law proceedings and juvenile justice. In the 1970’s, the dominance of the welfare model started to be criticised. An alternative discourse emerged, advocating a reorganisation of the process of juvenile justice with a replacement of the informal proceedings by due process and visible decision-making. Therefore, the links between child protection and juvenile justice faded, which allowed a shift of the former towards family proceedings. According to Downes, juvenile justice has been separated from child protection, because of its focus on crime and not on the child anymore.
B. In France
Several civil proceedings are aimed at protecting children. Situating the juge des enfants’ jurisdiction among them makes it clear that the scope of his intervention has been conceived from a very different perspective from that of his English counterpart.
1. Child protection measures
Article 371-2 of the Code civil gives parents parental authority to
“protect the child in his/her safety, health and morality. They have in his/her respect a right and duty of custody, supervision and education”.
Following the laissez-faire approach adopted under Napoleon’s era, parents are primarily responsible for their child and therefore all protection measures are defined as breaches of parental authority, and so organised in the Code civil. The order in which these provisions are presented in the Code is important : after dealing with the exercise of parental authority, the three possibilities of protection are presented from the more supportive one to the more coercive and punitive one, and are pronounced by different judges, in an increasingly formal court setting. In practice, assistance éducative is used in the overwhelming majority of cases, the laissez-faire approach giving way to the defence of the birth family perspective.
a. Protection along with parents
Article 375 of the Code civil allows the juge des enfants to order assistance éducative measures when the health, the safety, or the morality of a minor is in danger, or when the conditions of his/her education are gravely compromised. It is a temporary and mild form of breach of parental authority and therefore, departure from parents’ decisions occur only when they are dangerous for the child. The assistance is not given to the child, but to the parents to help them meeting their duties. The judge always has to strive to obtain their consent (although he can order measures against their wishes) ; neither the judge nor the service appointed to implement the educational measure can take over the full responsibility for the child.
b. Protection despite of parents
A delegation of parental authority transfers the full exercise of parental rights and duties to a third party for an unlimited period of time. The juge aux affaires familiales, whose jurisdiction covers divorce, custody and contact, makes the decision either on the joint application of parents and the third party, or on the request of the third party when parents have lost interest in their child for more than one year.
c. Protection from parents
A panel of three judges of the Tribunal de Grande Instance (civil court) can pronounce a withdrawal of parental authority when parents put the health, security, morality or education of their child in danger, or do not meet their responsibilities in relation to their child previously placed under an assistance éducative measure. Criminal courts can also use this possibility for parents who have been sentenced for a crime committed in relation to their child, whether the child was author or victim. Although the Cour de Cassation held that the withdrawal of parental authority is a protection measure and not a sanction, and despite the 1996 reform that substituted its current appellation to “decay of paternal power”, the wording of the article and the fact that it can be the consequence of a failure of an assistance éducative measure has a punitive stance. Its use by civil courts is extremely rare.
2. The juge des enfants’ jurisdiction
a. Assistance éducative and juvenile justice
The extension of the juge des enfant’s jurisdiction to assistance éducative in 1958 recognised that educational measures could be ordered to assist parents in their upbringing role, as a means to protect children. It gave a specific welfare-based role to the juge des enfants, who thus acquires a problem-solving knowledge on the social and individual difficulties that families and children can encounter. Together with the specialised training, it gives the juge des enfants its legitimacy.
In La Juridiction des Mineurs : un Chef d’Oeuvre en Péril ? (unpublished), Alain Bruel, former President of Paris’ Tribunal pour Enfants, explains the importance of keeping this dual role : he argues that there is a fundamental unity of youth with problems, whose nature does not change just because of an offence (passage à l’acte), and that a majority of offenders have been, in a patent or hidden way, in danger at certain moments of their existence. Therefore needs of young offenders and children in danger are perceived as the same. This approach, where the focus on the child as an individual is central to the decision-making, can be compared to the Scottish Children’s Hearings System, even if they have different features. In many European countries, such as Belgium, Germany, Italy and the Netherlands, juvenile justice and child protection are also dealt with by the same judge.
b. Control of the use of social benefits
French law organises a social control of the use of social benefits, the tutelle aux prestations sociales : when children who entitle their parents to social benefits are brought up in obviously defective circumstances as to their feeding, housing and hygiene, or when the benefits are not used in the children’s interest, the juge des enfants can decide that the benefits will be paid to a qualified person, the tuteur aux prestations sociales. The tuteur administers the benefits in the interest of the children in order to meet their needs, can take any steps to improve the children’s standard of living and is expected to advise the family with a view to its rehabilitation.
This measure is a powerful means by which to control family expenses in a coercive way and is often applied for by local housing agencies, in order to guarantee a regular payment of the rent. This use and the unsaid paternalistic purpose of “driving families back into the right way” have been widely criticised by juges des enfants but the measure in itself remains popular.
c. Overlaps
The juge des enfants’ jurisdiction in family proceedings is limited to public law cases. Private law disputes are dealt with in adversarial proceedings by the juge aux affaires familiales. Despite the difficulty in drawing a clear line between these jurisdictions, the law neither organises any possibility of transferring the case from one judge to another, nor creates any bridge of the kind of s. 16 and 37 of the Children Act 1989 between public and private law proceedings. Most of the case law related to the juge des enfants’ work relates to this distinction.
The Cour de Cassation recalled the exclusive jurisdiction of the juge des enfants in assistance éducative proceedings to deny the juge aux affaires familiales the jurisdiction to order educational measures. It therefore happens, though in exceptional circumstances, that assistance educative proceedings are brought for the purpose of supervising contact arrangements.
Despite the possibility of bringing emergency proceedings before the juge aux affaires familiales, the Cour de Cassation states that the juge des enfants could modify a contact order made by a juge aux affaires familiales when new circumstances reveal a situation of danger, leading a commentator to write :
“one [of the judges] is the judge of tragedies, the other is the judge of divergences”.
Chapter III. The court setting and the hearing
A. England
1. Features :
The judge’s role is to resolve a dispute between an applicant, namely the local authority, and defendants, the parents, on whether a child under the age of seventeen is suffering or likely to suffer significant harm, and to make a final decision on the care of the child, until recently without any possibility in controlling its implementation. As with any other civil dispute, public law proceedings are designed to protect each party’s rights by the application of principles of due process. The hearing is the place of a legal debate conducted by barristers. Social workers and experts have to give evidence and can express their views, but only within the framework of cross-examination. This legal language is, according to M. King and J. Trowell, not designed to solve emotional conflicts. It promotes a binary view of the situation and makes it difficult to highlight the complexity of the child’s needs.
The Children Act 1989 and the Family Proceedings Rules 1991 have altered the strictness of the judicial process, formerly criticized for adopting a criminal trial model. However, it is not designed to promote the possibility of parents and children to express themselves : an informal debate on the model of what exists in France is alien to the English court system. Therefore, semi-inquisitorial powers of courts introduced by the Children Act 1989 and the Family Proceedings Rules 1991 are designed to avoid delays, in accordance with the principle that any delay is likely to prejudice the welfare of the child, rather than to promote dialogue. For example, the firm directive control courts are expected to take over the way proceedings are conducted does not allow them to encroach upon the role of lawyers, who lead the debates through cross-examinations. Likewise, it is primary for the purpose of accelerating the proceedings that courts can split the hearings when factual issues are disputed, when, according to practitioners, this practice could enhance dialogue, involve parents in a process of further partnership with the local authority for the determination of the care plan, produce a more welfare-centred debate at the second stage of proceedings and avoid “fait accompli” compromises reached between parties, with which the court may feel powerless to interfere.
The equality of powers between the parties is formal, but local authorities have a professional knowledge (theoretical as well as related to the available resources in the area) that parents do not share, and that is difficult to challenge for barristers and judges, because there has been until now no continuing involvement of courts and control of the implementation of decisions. In The position of parents using experts in care proceedings : a failure of “partnership” ? Julia Brophy and Phil Bates suggest, on the basis of a survey and of views of guardians ad litem, that the instruction of a solicitor by parents, theoretically intended to mitigate the power and knowledge imbalance with local authorities, fails to do so because of the poor quality of representation. They question the fairness of the trial and suggest a specialisation of solicitors and the development of joint appointments of experts by parents and children’s guardians.
In most cases (84% in London Family Proceedings Court in 1999), an agreement is reached between the local authority and the parents, but not within the judicial hearing conducted by the judge : what Michael King calls “courtroom door negotiations” take place between each party’s lawyer and are more centred on the avoidance of court proceedings than on the determination of the most beneficial solution for the child.
2. The assessment :
Care proceedings being a dispute between parents and a local authority, the latter bears the burden of proof of the significant harm and of the fact that the care plan is in the child’s best interest. It can call expert witnesses (doctors, psychologists, social workers…) to substantiate its case. In return, parents can call their own experts and witnesses but have a subordinate position in the process of evidence accumulation : in The position of parents using experts in care proceedings : a failure of “partnership” ? Julia Brophy and Phil Bates demonstrate how the opinion of experts appointed by parents is given less weight because they are seen as conveying a particular trend of opinion.
The court’s inquisitorial powers give them a role in the search for truth : in C v Solihull Metropolitan Borough Council, Ward J stressed that a court should not abdicate responsibility to a local authority by making a final order at a time when it is not in possession of all the facts. The children’s guardian, who will provide the court with an independent report on the child’s circumstances, has a major role in the assessment, because of his independence, qualification and experience. This independent assessment of the situation of the child is very influential : courts are not bound by the recommendations of the children’s guardian but should give their reasons for departing from them.
Secondly, courts have the power to give the local authority directions for the assessment of the child, when making an interim care order or an interim supervision order (s. 38 (6) of the Children Act). The House of Lords held that parents’ assessment was not excluded, and that courts had the power to order a residential assessment of the child and his parents. However, in Re B (Psychiatric Therapy for Parents), the Court of Appeal held that assessment excluded therapy and carefully distinguished between assessment of the child with the parents and assessment of parents alone, the latter being outside the scope of s. 38 (6).
The duty of the court to investigate stops when there is no realistic alternative to the plan proposed, even when the plan is “inchoate” and not worked out in detail. However, in W and B v Torbay County Council and W v Bedfordshire County Council Thorpe LJ stated that in such a situation, a court could not discharge its duty to make the child’s welfare its paramount concern, and suggested that courts should have a wider discretion to make interim care orders until the care plan is satisfactory.
3. Children in court :
Regardless of their age, children are full parties to the proceedings, have a right to Legal Aid, and are provided with a very sophisticated system of representation : a children’s guardian is almost systematically appointed to safeguard the child’s interests. The children’s guardian, usually qualified in social work and experienced in working with children, appoints and instructs a solicitor to represent the child, investigates on all the circumstances of the child and produces a written report advising the court on the interests of the child. These provisions, unanimously welcomed, allow the child’s voice to be heard in court, because of the considerable weight of the guardian’s opinion. They are in full compliance with article 12 of the United Nations Convention on the Rights of the Child. However, there are concerns that the Children and Family Court Advisory Service, set up on 1st April 2001 to gather the family court welfare service, the Official Solicitor’s department and the guardian ad litem service together under the authority of the Lord Chancellor’s Department, could threaten the quality of service for children involved in public law cases : children could be represented by court welfare officers, who do not have the same qualifications and experience, and the financial conditions proposed to children’s guardians are disadvantageous.
The appointment of the children’s guardian finds its importance in the fact that, contrary to the French system where children participate in the hearing as a matter of principle, it is almost assumed that it is a damaging experience for them not only to give evidence, but also to appear in court : in Re C (A Minor) (Care : Child’s wishes), Waite J warned that it would be regrettable if a child’s presence in High Court were to develop into settled practice. Courts have the power to hear the case in the child’s absence if it is in his/her best interest and use it widely : in Re W (secure accommodation order : attendance at court), the High Court considered that there was a presumption that it was likely to be harmful to the child and that it should therefore only be allowed “if satisfied that attendance is in the interests of the child”. Research shows that courts are usually reluctant to estimate that this condition is fulfilled and that children’s guardians are influenced by this view and discourage children’s active participation. It can be argued with Jane Fortin that it is
“an extremely adult view and appears to ignore [the child’s] own perspective of the situation”.
Indeed, it can be fundamentally important for children, especially adolescents, to be present in the forum where their future is discussed and their parents are assessed. The way they will understand and accept the measures decided for them and more generally the success of the care plan can depend on it.
Another difficulty arises when an apparently mature child and the children’s guardian have conflicting opinions : the child may instruct a solicitor independently provided he/she has sufficient understanding. However, courts do not favour this possibility that leaves the child without skilled representation and moral support : in Re S (A Minor) (Independent Representation), Sir Thomas Bingham MR considered the concept of Gillick competence as a means to determine the child’s capacity, but made it clear he would interpret it restrictively. Further conditions have been added, and it has been refused for reasons of opportunity : in Re H (a minor) (care proceedings : child’s wishes), Thorpe J held :
“a child must have sufficient rationality within the understanding to instruct a solicitor”.
He refused a child’s appeal against a care order on the basis that the outcome would have been the same with an independent representation. Finally, even if the child instructs a solicitor independently, the children’s guardian will then instruct another one and will still report to the court on the child’s welfare, undermining the child’s solicitor role.
Courts are satisfied with the institution of the children’s guardian, which, although remarkable, does not promote older children’s autonomy. This paternalistic judicial attitude departs from what could have been expected from the Children Act 1989, on which the Gillick decision’s principles were influential.
B. France
1. Features
Within the fusion between the interests of the family, the child and the state, the juge des enfants is not in charge of a legal adjudication between competing interests. His/her paternalistic and benevolent authority, together with his/her specialised training and jurisdiction allow him/her to create a space of dialogue, sometimes called “justice négociée” (Antoine Garapon), which is a partnership within the court system, a search for consensus within the framework of possible compulsory interventions. His/her legal and professional authority is the tool of a persuasive intervention in the family, where children are seen both as members of the family and as separate individuals. The design of the proceedings and the decision process are marked by this role and reflects what M. King and J. Trowell described as a “clinical approach”, as opposed to a legal approach.
Firstly, there is no formal application to the judge : parents, guardians and children can invoke the jurisdiction of the juge des enfants directly, in a very informal way : a letter, a telephone-call or even by coming to court and asking for an appointment. Others, especially social services, have to refer a case to the Procureur, who appreciates the necessity of requiring the judge to intervene. The Conseil Général (a local governing body) is not party to the proceedings and the judge, who can act on his/her own motion, is him/herself in charge of the assessment.
Secondly, the hearing is very informal, taking place in the judge’s office and never in the courtroom. It is also very short (up to a maximum of two to three hours) and intense. It is expected to have a cathartic effect and a problem-solving orientation, and to result with the family awareness of the difficulties, and its acceptance of the judge’s decision. There is no cross-examination ; parents, children and social workers are expected to express themselves with the support of the judge who has a leading role in the debates. In Child protection in France and England - authority, legalism and social work practice, B. Luckock, R. Vogler and H. Keating argue that :
“independent representation of parents and children by advocates is not just rare but positively dysfunctional to the free exercise of this judicial role”.
Indeed, most lawyers struggle to find their role in this hearing where the judge acts simultaneously on behalf of the child, the family and the state. Coercion is less likely to be used within informal settings, when all actors have the same aim, than in adversarial proceedings where conflicts are sharpened.
As judicial authority is the guarantor of individual freedoms, it is not surprising that the system relies on the personal commitment of the judge in child protection and in the respect of civil liberties. However, the judicial process, designed to promote a persuasive intervention, sometimes exceeds the limits of benevolent paternalism and crosses the border of arbitrariness.
2. The independent assessment
Neither the members of family, nor the Procureur have to apply for a specific order : the inquisitorial form of the procedure implies that the whole situation is presented to the judge who will decide what course of action should be taken. To fulfil this duty, article 1183 of the Nouveau Code de Procédure civile gives the judge the possibility of ordering any kind of assessment (medical, social, psychological, professional orientation…) of the child’s situation. It will usually be performed by the Service Educatif Auprès du Tribunal (S.E.A.T.), a state run service specially trained and independent of the Conseil Général, or by a private agency appointed by the judge, and can last up to six months. This assessment is often the occasion for the family to feel relieved from the pressure of social services that referred their situation to the procureur, to have a “second chance” and it is not uncommon that worrying situations of neglect improve a lot during this period. It also gives the judge a thorough and independent view of the situation and shifts the attention to the family’s situation rather than on the conflict with the Conseil Général. The service appointed can refer the situation to the judge as a matter of emergency. Independent assessments are increasingly used, and are ordered in nearly two thirds of new cases. Interim measures can be ordered until the assessment is completed, up to a maximum of six months.
3. Hearing of the child
The judge has a duty to hear the minor, unless the child’s age or state of mind does not allow it. The Cour de Cassation held that the judge had to give his/her reasons for declining to do so, but admitted such a refusal relatively widely, i.e. for an eight year-old child or due to the child’s state of anxiety. However, the usual practice is to allow very young children to be present during the hearing, in order to fulfil several functions. It gives them a symbolic place in the proceedings and can make them aware that accounts are asked to their parents and that the state is concerned with their welfare. It also allows the judge to observe the parent-child relationship and to try to obtain the child’s approval as well as that of the parents.
The protective role of the juge des enfants, who is expected to remind parents of reasonable standards of care and to speak for the child, also leads him/her to try to create an alliance with the child.
Children have the status of a party, with a right to apply for the intervention of the juge des enfants, to be assisted by a lawyer and to appeal the judge’s decisions, provided they have “discernment”, which the judge is supposed to assess. However, children have no independent representation as the judge is expected to fulfil this function : there is a legal possibility of appointing an administrateur ad hoc, independent representative, in any proceeding where the interests of a child is in conflict with his/her parents’, but it is hardly ever used in assistance éducative proceedings. Children can feel particularly powerless and vulnerable and it is not uncommon that they ask their allocated social worker to express their wishes. The judge’s wide discretion, in addition to the seldom presence of lawyers and the little use by parents and children of procedural possibilities (administrateur ad hoc, right to appeal, right to apply for a review of the case) make the children’s situation totally dependent of the judge’s concern and interest.
4. The access to files
Families and children are denied the right to have direct access to their file. Their lawyer can only read it and is not entitled to obtain any copy. The European Court of Human Rights held in McMichael v. United Kingdom that the right to a fair trial implies :
“the opportunity to have knowledge of and comment on the observations filed or evidence adduced by the other party”.
It stated that the lack of disclosure of social reports affects parents’ ability to influence the outcome of the proceedings. Despite this decision, the Cour de Cassation held that this provision is not inconsistent with the European Convention on Human Rights.
In addition to the legal reasons, opportunity is said to require precautions in the handling of family difficulties : Montpellier Court of Appeal explained that allowing direct access to the files would make it impossible for the judge to achieve the aim of maintaining children in their families and of obtaining their approval. It also held that it would “endanger the mutual trust and spirit of consensus that gives the assistance éducative procedure its humanity”. Indeed, it would give the hearing a different stance because parents would be more focused on criticising the reports. Other juges des enfants fear that the sudden revelation of family secrets or psychiatric assessments without their benevolent explanations and assistance would cause harm to the readers and endanger the child’s safety.
However, this opinion is highly criticised by lawyers and an increasing proportion of juges des enfants. According to Michel Huyette, conseiller in Lyon Court of Appeal, these arguments are legally wrong and reflect the current culture of secrecy, which allows bad social work practice. He campaigns for a possibility for families to challenge social workers’ opinions and to fully participate in the judicial debate. He also suggests that reports should be sent to the family at the same time as they are sent to the judge. A first decision acknowledged the inconsistency of French law with the European Convention on Human Rights : on 26th June 2000, Lyon Court of Appeal allowed an appeal against a juge des enfants’ refusal to let the parents have integral access to the file and granted them such an access with a view to re-start the debates. This decision stated :
“article 1187 of the Nouveau Code de Procédure civile (…) is contrary to the right to a fair trial stated by article 6 of the European Convention on Human Rights. (…) The right to have access to the file restores the balance between the family and other actors in the proceedings ; this balance should improve dialogue and social work, necessarily based on trust and transparency, and not on secrecy that embeds the risk of all-mightiness and arbitrariness”.
The government shares this concern about parents’ rights : a report to the Ministry of Justice presented in January 2001 by a special commission chaired by Jean-Pierre Deschamps, President of Marseille Tribunal pour Enfants, suggests the right for parents and children to have direct access to their file, save for express refusal by the juge des enfants if the access risks creating a grave physical or moral danger for the child. The report also recommends the possibility for the judge to propose to the parents and the child the assistance of an independent professional. Another report, jointly commissioned by the Ministry of Justice and the Ministry of Social Affairs suggests that the assistance of a lawyer should be compulsory in public law proceedings, thus making the access to the file possible.
Barry Luckock, Richard Vogler and Heather Keating argue that the French system “provides little opportunity for parents and children to challenge the strategies of officials”, that it is “hazardous to rely on the emotional response of a judge as a means of restraining power and guiding judgement” and that their initial findings “indicate that strong feelings of deception and manipulation are not uncommon”. Moreover, the report “Accueils provisoires et placements d’enfants" refers to some families’ general feeling of unfairness, enhanced by the practice of some judges of meeting social workers immediately before the hearing, without parents’ presence. As a result, the parents think that the decision is made in advance and that the hearing is meaningless. The report also explains that families feel “lonely, deprived of rights, victims of prejudice when facing a judicial-administrative machinery” and therefore tend to become violent or to adopt an attitude of false consensus. Some judges fail to summon the parents after emergency interim measures or before the expiry date of an educational measure because they are overburdened with cases, due to the increase of judicial proceedings. The report continues by suggesting that the assistance of a lawyer should be compulsory in public law proceedings in order to ensure that due consideration is given to children’s and parents’ rights.
This grim picture makes one wonder whether the social contract is about to be broken or if overworked judges have forgotten the role that empathy plays in their functions. It gives the French system an arbitrary stance, in particular when compared with the English proceedings, where parties have access to all the papers except in most exceptional circumstances, and only when the court is satisfied that the disclosure would be so detrimental to the welfare of the child that it outweighs the normal requirements for a fair trial. Empowering children and parents to promote a fair dialogue on an equality basis and emphasising empathy in the training of judges are necessary steps to prevent a paternalistic system becoming arbitra.
Chapter IV : The articulation of administrative and judicial protection
Both countries have a dual system of protection. The voluntary, non-coercive intervention is the norm. Local authorities in England, Conseil Général in France have a duty to support families in their area and to work in partnership with them, with a view to avoid judicial proceedings. From Parents Speaking : Anglo-French Perceptions of Child Welfare Interventions, it emerges that French parents who expect to receive help are often successful in obtaining a different support from what was initially proposed by social workers, but are not clearly aware of how the system works ; English parents more often feel they have to fight to get help, are frightened of professionals’ powers, but are well-informed of their rights and of the functioning of the system.
The connection with the judicial system is organised differently : in England, local authorities have a duty to investigate when they “have reasonable cause to suspect that a child (…) is suffering or is likely to suffer significant harm”, and to take action to safeguard or promote the child’s welfare. It is only when a partnership with the family cannot be carried out that the local authority will apply for a judicial order.
In France, the President of the Conseil Général has no duty to investigate, but is under a statutory obligation to inform the Procureur when a minor is abused or when there is a suspicion of abuse and denial of access to the child. In practice, the inspecteur de l’Aide Sociale à l’Enfance, head of the specialised service of the Conseil Général, will assess and refer the situation to the procureur, who will decide to invoke the jurisdiction of the juge des enfants and, in case of serious abuse, will investigate with a view to prosecuting the authors.
A. The circumstances under which a judicial intervention can occur
According to the wording of their laws, England and France also have very similar criteria of threshold for judicial intervention : significant harm could be equated to danger, and the welfare of the child is not the court’s paramount consideration in determining whether the threshold criteria are satisfied. However, the similarities do not go further : in England, this stage of the proceedings is essentially a fact-finding exercise, whereas the French judge concentrates on the suffering of the child.
1. In England
A court can make a care or supervision order when a child “is suffering, or likely to suffer, significant harm” attributable to the care given to the child or to his/her being beyond parental control.
I believe that the law allows flexibility in the application of the threshold criteria, but that courts choose a strict interpretation, especially in relation to the definition of significant harm, taking the risk of undetected abuse rather than the one of unjustified intervention.
a. The significant harm
The Department of Health in its guidelines Working together to Safeguard Children describes this concept according to its causes, the context in which it is more likely to happen, and its effects. Child abuse is divided into four categories : physical, emotional, sexual and neglect. However, the guidelines admit that “there is no absolute criteria on which to rely when judging what constitutes significant harm”. Guidance and Regulations refers to “serious and lasting effects upon the child”.
The standard of proof, as in any civil proceeding, is the balance of probabilities.
In one of the earliest cases, the President of the Family division, Sir Stephen Brown P, called for flexibility :
“I very much hope that in approaching cases under the Children Act 1899 the court will not be invited to perform in every case a strict legalistic analysis of s.31. Of course, the words of the statute must be considered, but I do not believe that Parliament intended them to be unduly restrictive when the evidence clearly indicates that a certain course should be taken in order to protect the child”.
Contrary to these views, the approach of the courts has become restrictive, and narrows considerably the extent to which children are protected from abuse : in Reconciling protection of children with justice for parents in cases of alleged child abuse, Mary Hayes argues that it is too difficult to prove that a child suffers or is likely to suffer significant harm for several combined reasons : the evidence given by expert witnesses is of poor quality, there is no cross-examination of the child and little weight is given to his/her evidence, the Court of Appeal is blocking appeals made on the grounds of mistaken fact-finding or wrongful exercise of judicial discretion and the standard of proof applied is too high. She refers in particular to the House of Lords’ decision in Re H and Re R (minors) (child sexual abuse, standard of proof) where a girl of 15 made a statement to the police that her stepfather had sexually abused her. He was acquitted but the local authority sought a care order in respect of the three other children. The House of Lords held that the sexual abuse was not established and that there was therefore insufficient basis for proving the likelihood of harm for the younger children. Although recalling that the standard of proof was the balance of probabilities, Lord Nicholls stated that :
“the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probabilities”.
This requirement of more evidence to convince the court can amount to requiring a criminal standard of proof to establish the most serious abuse.
Mary Hayes demonstrates that “the law has swung too heavily in favour of the rights of the parents” and states that local authorities will not bring proceedings if the threshold is too hard to prove, leaving children harmed.
The Children Act 1989 widened the previous grounds of intervention by admitting a likelihood of harm. In Re H and Re R (minors) (child sexual abuse, standard of proof), the House of Lords adopted a two-stage approach to the likelihood of harm : the reality of the past threatening event has to be proven on the balance of probabilities before it can be envisaged that this event can happen in the future. More recently, the Court of Appeal held in Re C and B (children) (care order : future harm) that a local authority should not take action unless there was evidence of immediate risk and a real possibility of future harm. This decision recalled the duty of local authorities to work in partnership with families, and linked it to the principle of proportionality drawn by the European Court of Human Rights from article 8 (2) of the Convention to justify an interference of children and parents’ right to family life.
Despite of the restrictive approach of courts and the emphasis on family support that can be drawn from Messages from Research, the number of judicial interventions within families has significantly risen since 1996 :
Number of care orders : / Number of children under a care order :
1996 / 3, 100 / 29, 000
1998 / 4, 200 / 32, 100
2000 / 4, 400 / 36, 400
These figures suggest that local authorities cannot work efficiently on a preventive basis with families and choose the judicial route, although the latter is deemed to be detrimental to the possibility of working in partnership with parents.
b. The attributable harm
S.31 (2) (b) of the Children Act 1989 does not insist that the perpetrator of the harm be named ; it simply requires a link to be made between the care given to the child and the harm he/she suffered.
In Re B and W (threshold criteria), a 7 months old baby, whose care was shared between the parents and a child-minder, suffered from serious injuries after having been shaken. The local authority applied for a care order in respect of this child and of the child-minder’s baby. The Court of Appeal adopted a pragmatic approach, advocating a “purposive construction of the Act” : Robert Walker LJ held that the injured child “must not be left at risk simply because it is not possible for the court to be sure which part of the care network had failed”. He stated that the childminder’s child had not been harmed in any way, and (applying the Re H and Re R test) that the risk of future harm can be established only on the basis of proven facts, not just suspicions. The House of Lords upheld this conclusion in Lancashire County Council v. B, Lord Nicholls stating that :
“the phrase ?care given to the child’ is apt to embrace not merely the care given by the parents or other primary carers ; it is apt to embrace the care given by any of the carers.”.
This interpretation takes into account children’s need of protection rather than the strong concern for family privacy in Re H and Re R.
c. Time when the harm was suffered
The House of Lords held that the relevant period for the assessment of the harm is the time when the local authority initiated the protective arrangements for the child, and not the time of the hearing. This means that the fact that the child is presently well cared for, as a result of the arrangements, does not preclude the making of a care order. This approach is characteristic of the precedence of fact finding over the consideration of the current situation of the child ; the abuse is the focus and it arguably gives the court intervention a judgemental stance that will not ease the necessary partnership between parents and the local authority once a care order is made.
d. A different threshold for emergency protection
Anyone can apply for an emergency protection order. The court can make the order if it is satisfied that there is a “reasonable cause to believe that the child is likely to suffer significant harm”, or even when there is “reasonable cause to suspect” it, on the application of a local authority that is making inquiries on the child’s welfare and is denied access to the child. The “reasonable cause to suspect” is also the situation in which a local authority has a duty to investigate, and this lower standard of proof necessary to obtain an emergency protection order is designed to make it possible for the local authority to substantiate its belief by seeing the child.
However, the grounds for emergency protection orders are designed to focus on emergency, in accordance with the recommendations of the Review of Child Care Law, which took into account the widespread criticisms made against the place of safety orders under the Children Act 1975. The order lasts for a maximum of eight days and can be renewed once for seven days. In Re C and B (Children) (Care Order : Future Harm), Hale LJ reaffirmed that :
“such orders are intended to be made when there is an emergency and it can be shown that unless emergency action is taken that child be at risk of significant harm during the period of the order”.
2. In France : situation of danger, an imprecise concept
a. The notion of danger
A juge des enfants can order educational measures “if the health, the safety, or the morality of a minor are in danger, or if the conditions of his/her education are gravely compromised”
Neither the law, nor the courts have defined more precisely the danger or the circumstances in which the conditions of education are gravely compromised.
The Observatoire National de l’Action Sociale Décentralisée (O.D.A.S.), an association working closely with the government to promote prevention of ill treatment, provides definitions in order to assist social services to make their assessment. The definition of children in danger fall within two categories :
“The ill treated child is a victim of physical violence, sexual abuse, mental cruelty, heavy negligence that have grave consequences on his/her physical and psychological development”.
“The child at risk has living conditions that risk to put his/her health, security, morality, education or care in danger, but is not ill treated”.
However, such an assessment can be sent either to the Procureur for court protection or to the Aide Sociale à l’Enfance for a preventive measure, according to the gravity of the situation and the possible co-operation of parents. Furthermore, the concept of children in danger, which justifies a judicial intervention, is usually opposed to the concept of children at risk, for whom a preventive measure would be appropriate.
These confused definitions show how the border between administrative and judicial intervention is blurred and how a strict legal analysis on the model of the English system is impossible to perform.
It is generally admitted that the danger criterion is more a question of degree and of individual assessment than a definable concept. In practice, its appreciation is based more on the perception of the child’s suffering, which makes the child’s welfare the focus of the judge’s attention.
The judge has a wide discretion in deciding whether a situation matches the criteria. The Cour de Cassation limits its control to the motives of the decision. However, parties have a right to appeal and French Cours d’Appel, contrary to the English Court of Appeal, restart the trial and scrutinise the first judge’s discretion. For example, the existence of danger as appreciated by the judge of first instance has been upheld in situations where :
– a mother wanted to take her child abroad, preventing him from receiving medical treatment for his deafness,
– a minor attempted suicide, ran away from home and refused to return,
– a mother incited her seventeen year-old daughter to have sexual relations with married men.
e. The attribution of the danger
The Code civil does not expressly require that the danger should be attributable to the parents. In a decision of 24th May 1984, Paris Court of Appeal called to mind that the situation of danger is the only condition to undertake educational measures, and that it is not necessary to prove the mother’s fault : a three year-old child had been placed under the Aide Sociale à l’Enfance’s authority because of the repetition of injuries within a few months, the cause of these injuries not being determined. This approach is similar to the one adopted by English courts, which concentrates on the harm and the risk rather than on parents’ faults : in Lancashire County Council v. B, Lord Nicholls stated “an absence of a reasonable standard of parental care need not imply that the parents are at fault”.
f. The constant check of the threshold criteria throughout the procedure
As educational measures are temporary by nature, the existence of danger must be checked at each hearing, that is to say every time the parents apply for the rehabilitation of the child or at the end of each period of placement. The danger criteria take precedence over the interests of the child, who will be returned to his/her birth family as soon as the causes of danger have disappeared, even if he/she has bonded with a foster family : in a 27th April 1976 case, the Cour de Cassation held that a placement could not be maintained unless it was justified according to the article 375 of the Code civil’s criteria.
g. Emergency protection
The criteria for emergency protection are not different from those applicable in other situations. The judge has a discretionary power to assess the emergency, and the Code civil does not distinguish interim orders pending an assessment from emergency placement orders : article 375-5 al 1 of the Code civil allows the judge to order interim measures, and article 1184 of the Nouveau Code de Procédure civile does not request the judge to organise a hearing before ordering such measures in cases of emergency. Therefore, emergency measures can last up to six months and can be renewed. These measures can be appealed against immediately, but extensive delays may deprive parents and children of any effective remedy, as was acknowledged by "Accueils provisoires et placements d’enfants".
In cases of emergency, article 375-5 al 2 of the Code civil allows the procureur to order any measure (placement, supervision, imposition of conditions) without summoning or even informing the parents and the child, who cannot appeal against this decision. The procureur has a duty to invoke the juge des enfants’ jurisdiction within eight days. This possibility, essential to organise urgent protection of seriously abused children, is however applied in a way which disregards parents and children’s rights. Firstly, there is no legal consequence if the procureur fails to refer the case to the juge des enfants. Secondly, there is not yet any requirement that the judge organises a hearing within a short period of time, and situations have been reported where families have not met any judge for six months. Thirdly, the practice of emergency placements is increasing : the number of emergency placements by procureurs has increased by 40 % between 1994 and 1999 in Paris area, and 15 % of the cases handled by juges des enfants started with such a decision.
It seems that criticisms made against the place of safety orders prior to the Children Act 1989 apply equally to French réquisitions aux fins de placement provisoire : granted too readily on an ex parte application, lasting too long, routinely used as a method to start proceedings rather than in genuine emergencies. The report “Le contradictoire et la communication des dossiers an assistance éducative“, suggests procedural reforms, giving the juge des enfants a duty to hear the family within fifteen days of an emergency measure and favouring the assistance of lawyers. There is however no call for limiting the duration of the orders, and all the propositions tend to safeguard the flexibility of the current law.
The focus of French proceedings is not on the abuse but on the partnership between the judge and the family. This is particularly illustrated by the fact that parents and children can directly invoke the juge des enfants’ jurisdiction. Therefore, the circumstances in which the French juge des enfants intervenes are by nature different from those that fulfil the threshold criteria. It makes the French system close to a defence of the birth family and parents’ rights ideology, where families and social services consider the juge des enfants as a protective father.
This wide and non-judgemental approach seems at first to reconcile children’s need of protection and parents’ right to a minimum level of coercive intervention. However, there is a risk that the relevant causes of danger are not expressed in order to ensure further co-operation, and then are not worked on by the appointed social workers. It can also delay a firmer action and lead to aggravated abuse. Moreover, the increase in the level of emergency placements by procureurs discredits juges des enfants’ concern for family unity and persuasive intervention. Finally, the level of judicial involvement is extremely high : 57, 148 new files were opened in juges des enfants’ offices in 1998, each concerning one or several children. This situation leads to unjustified interventions and burdens the judge with unnecessary procedures when other children would need more attention.
H. Relationship between the administrative and judicial system at that stage
1. In England
In Protecting Children, Messages from Europe, Rachael Hetherington, Andrew Cooper, Philip Smith and Gerti Wilford explain that partnership with the family is made difficult for social workers because of their conflicting duties to support and to investigate and of the lack of an intermediate concept between justice and welfare, which could work as a buffer between administrative and judicial intervention. As a consequence of parents’ rights, it is impossible for a social worker to have contact with a young child without parental consent, and confidentiality of an adolescent’s revelation cannot be kept. Furthermore, an order cannot be sought on the basis of grounds for anxiety. Therefore, parents’ lack of co-operation is a significant impediment both to the implementation of preventive measures and to evidence gathering in order to substantiate the significant harm.
At the administrative stage, local authorities focus on investigation rather than family support. In The New Politics of Child Protection , Nigel Parton argues that the dramatic increase of referrals requiring investigation in the context of reduced resources makes the identification of significant harm a priority of child welfare services. He suggests that this situation has led to the impossibility of developing preventative family support. Two studies funded by the Department of Health illustrate the proposition : in Family participation and Patterns of Intervention in Child Protection in Gwent, G. Denman and D. Thorpe stated that on a panel of 100 child abuse allegations, only 44 allegations were substantiated ; in 8 of these, there was no continuing involvement and 6 more were closed ; on the 30 remaining cases, only 15 were placed on the Child Protection Register. In Operating the Child Protection System, J. Gibbons, S. Conroy and C. Bell found that on a panel of 1888 children referred for investigations, only 16% were retained in the system after the Child Protection Conference and 15% were put on the Child Protection Register, leaving 85% with neither any intervention to protect the child nor family support services provided.
At the judicial stage, the legal discourse produces a defensive proceduralism in practice, preventing effective alliances between social workers, children and families, “which are so essential to the reconciliation of the interests of the child with the duty to respect parental autonomy” as Barry Luckock, Richard Vogler and Heather Keating, though advocating the English rights-based system against the paternalistic French system, admit it.
2. In France
The French system is more oriented to problem solving than to decision-making, and more connected to the judicial system via the inspecteur de l’Aide Sociale à l’Enfance. It works in a spirit of collaboration linked to a consensual view on how the state and the family can work together even when parents disagree. Because cases come to the judicial system more readily than in England, partnership is carried out with a certain degree of constraint on parents, at the expense of their rights of information and consultation.
There is an important increase of the number and proportion of referrals to court by social services, especially for children at risk, for whom ill-treatment is not established : it concerned 34% of these children in 1994, 40% in 1996 and 60% in 1998. The main causes of this trend are threefold. Firstly, the duty to inform the procureur imposed on the President of the Conseil Général by the law of 10th July 1989 entailed an improvement in assessment tools and a subsequent increase in numbers of judicial referrals. Secondly, social workers’ fears of a criminal conviction for neglect to help endangered children shifts the balance towards a judicial referral when there are doubts about the reality of abuse in a family, which is more than frequent. Thirdly, the intervention of the juge des enfants allows more flexibility than the sometimes-bureaucratic system of administrative protection, and social workers feel more secure and more authoritative when they have judicial approval.
The consequences of this shift from administrative to judicial protection affect both preventive work and child protection by courts : the automatism in referrals to the procureur leads social services not to focus anymore on a partnership with the family and preventive measures, but on assessments, depriving the administrative protection of its content. Courts and services appointed to carry out educational measures are clogged up. Some of the decisions of juges des enfants are not executed, which discredits both their authority and other services’ efficiency.
For both countries, the legal framework within which child protection operates carries potential difficulties : the strict definition of the threshold and the necessity for local authorities to give evidence in England, the width of the criteria of judicial intervention in France. However, it is rather the way these systems are practised that makes these difficulties create unwanted outcomes : the paternalistic French system seems to be generous, but its efficiency is undermined by a more important number of situations than it can deal with. On the other hand, the “defence of birth family” stance of its benevolent paternalism turns into a heavy interventionism focused on poor families. The laissez-faire approach of the English system achieves a good protection of family privacy, but the lack of resources and the emphasis on investigation that affects social services’ strategy create gaps in the child protection net. Local authorities’ accountability for failing to protect children from inhumane and degrading treatment” is a very positive step in this regard. Though, combined with the lack of resources, it entails the risk of reinforcing the focus on investigation at the expense of preventive support.
The Belgian Flemish system of child protection found an original and interesting way to solve these problems : legalism takes second place to therapeutic concerns within a framework of voluntary help. A compulsory lay mediation procedure promotes the compliance of the family with social workers proposals and is a buffer between preventative work and access to courts. The focus of preventative work is based on individual and family therapy : families are referred to a voluntary system of confidential doctors who provide therapeutic help without any risk of punishment or social or judicial control. Cases are only referred to children’s judges, whose intervention can be compared to the French juge des enfants’, when compliance of the family with help is withdrawn. In The Belgian Flemish child protection system - Confidentiality, voluntarism and coercion, Barry Luckock, Richard Vogler and Heather Keating express concern about the risks to the child’s safety when parents take a long time to change during therapeutic work. However, these risks are worth taking compared to those faced by English children falling through the protection net or French children whose educational measures are not implemented because of the services being clogged up.
In another way, a greater attention to children’s rights could reduce the weaknesses of both systems. Making children’s right to support and to remain within their family a priority would make social services of both countries focus more on preventative work, filling in the gaps in the English system and limiting the shift to the judiciary in France. It could also have an impact on the interpretation and practical application of the threshold criteria by English courts, and cause French juges des enfants not to avoid conflicts and coercion when it is in the best interest of the child.
Chapter V. The decision process
Due to the difference in the philosophy of child protection in each country, the decision processes are dissimilar. In England, the paramountcy of the welfare of the child dictates to courts their course of action. In France, the whole system is constructed in order to promote the upbringing of the child by his/her parents and assistance éducative being conceived of as a mild breach of parental authority, the parents’ wishes are taken into account more in the decision process.
A. In England
1. The welfare principle
The welfare principle is the most important guideline judges are expected to follow. Section 1 (1) of the Children Act makes the welfare of the child the court’s paramount consideration for the determination of any question related to the upbringing of a child. Section 1 (3) requires the courts to “have regard in particular to :
(a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding) ;
(b) his physical, emotional and educational needs ;
© the likely effect on him of any change in his circumstances ;
(d) his age, sex, background and any characteristics of his which the court considers relevant ;
(e) any harm which he has suffered or is at risk of suffering ;
(f) how capable each of his parents (…) is of meeting his needs ;
(g) the range of powers available to the court under this Act in the proceedings in question.”
An example of the growing concern of the law for children’s welfare is the possibility, inserted by the Family Law Act 1996, of attaching exclusion requirements to an emergency protection order or to an interim care order, so as to remove the abuser from the home rather than having to place the child away from the family. This statutory possibility was preceded by a pragmatic use of the inherent jurisdiction, when no other efficient alternative was available. Comparatively, in France where the child’s welfare is not even mentioned by law, the only possibility in obtaining a comparable result is to initiate criminal proceedings against the abuser and to place him/her on remand pending trial.
The welfare of the child is the paramount consideration in all child care cases, except for secure accommodation orders. Indeed the duty of local authorities to protect the public from serious injury supersedes the paramountcy principle. Although the consistency of secure accommodations with the European Convention on Human Rights was questioned, the Court of Appeal saw no incompatibility where it is justified within article 5 (1) (d) as the detention of a minor by a lawful order for the purpose of educational supervision. However, it can be argued that education is not the purpose of secure accommodations, and that the architecture of the text and the judicial interpretation make it a tool of long-term social control over disturbed children, who are considered more as delinquents than children in need of protection. Indeed, the welfare principle does not apply in the juvenile justice system in England. In France, as a result of the specialised jurisdiction of the juge des enfants, young offenders enjoy the same protective measures as children in danger and secure accommodations do not exist as such.
1. The child’s wishes and feelings
The importance given by the law to children’s wishes and feelings expresses an emphasis on their being treated as individuals rather than as members of their family, on their right to have a say in the decisions about their future, but also the pragmatic acknowledgement that, except for the youngest children, a care plan cannot work without their understanding and co-operation. However, acceding to their views can lead to detrimental outcomes for them. Therefore, s. 1 (3)(a) does not allow children to dictate their desired outcomes, since the court has to reach a decision in their best interest. J. Eekelaar suggested that courts should try to make decisions as consistent as possible with children’s own wishes, but without restricting their capacity for personal development.
The child’s wishes and feelings are conveyed to the court by the children’s guardian, whose role is also to advise the court on the child’s best interests. Guardians interpret these wishes in the light of other factors (circumstances of the child, incoherence of expressed wishes with the child’s behaviour…) and take into account all the criteria of the checklist, especially the protection from future harm.
Courts pay a considerable attention to adolescents’ views, especially relating to medical treatment and going into care, carefully assessing their understanding. They adopt a risk analysis approach, acceding to the child’s wishes when the outcome does not place them into a dangerous situation : in Re P (A Minor) (Education), the Court of Appeal did not override a fourteen year-old boy’s wish to attend a particular school because the dangers involved in this decision were very low. In medical decision however, children’s wishes are overridden when their life is at stake, on the ground of their incompetence or in applying the High Court’s inherent jurisdiction for the purpose of saving their life. The inherent jurisdiction has also been invoked in order to override the child’s right of refusal to undergo a psychiatric examination or other assessment under s.38 (6) of the Children Act 1989, which has been strongly criticised for its paternalistic stance.
2. Role of the parents in the child’s upbringing
Contrary to the French system, there is no statutory presumption that children should be brought up by their birth parents. It is even suggested that stability and permanency are given a greater weight than keeping the family unit, with a view to giving the child the possibility to thrive in a secure environment. In Children Act Report 1995-1999, local authorities are criticised for not attaching sufficient priority to adoption and for their excessive attempts to rehabilitate children with their parents. Statistics show that supervision orders are made far less frequently than care orders : in 1998, courts pronounced 4, 910 care orders and 829 supervision orders.
In reality, courts give a considerable importance to the birth family : a less interventionist approach is deemed to be in the best interest of the child, and the Court of Appeal in Re T-R and W (Children) (Adoption : Expert Evidence) found a “very strong consideration that wherever possible a young baby ought to be brought up by its natural mother”. In that case, a child psychiatrist had advised that the child’s long-term future needed to be secured within a period of six months’ separation from the mother. Decisions on contact in care also reflect this approach : courts support the statutory presumption of contact as a means to promote the rehabilitation of the child with his/her family, as reinforcing children’s sense of security ; they feel free to order contact even when it interferes with local authorities’ future plans for the child. However, contact can be refused if it is in the child’s best interest, especially when contact would be unsafe or when the child is reluctant to see his/her parents. For example, in Re G (Domestic Violence : Direct Contact), termination of direct contact was decided from the combined reasons of the father’s violence and refusal to acknowledge it, and the reluctance of the child to see him. When permanent placement of the child is the care plan, contact is deemed to compromise the search for a permanent new family.
Moreover, parents and children’s right to family life under article 8 of the European Convention on Human Rights are increasingly referred to. The European Court held that the mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life. Interferences with this right can be justifiable under article 8 (2) of the Convention if they are in accordance with the law, have a legitimate aim (such as the protection of rights and freedoms of others) and are necessary in a democratic society. This third requirement implies that the interference should be proportionate to the aim sought, and the more serious the intervention, the more compelling the justification. The European Court of Human Rights held that the interests of the child should prevail when a conflict between his/her interests and his/her parents’ can only be resolved to the disadvantage of one of them and refers to the United Nations Convention on the Rights of the Child in order to justify its concern with the child’s rights.
However, Jonathan Herring argues that the courts’ approach of the child’s welfare is different under the Convention and under the Children Act : under the former, the court has to be satisfied that the harm to the child is sufficient to make the breach of a right necessary, whereas under the Children Act 1989, the question is “which order will actually promote the child’s welfare ?”.
These rules have a strong impact in the judicial exercise of discretion and lead to a shift from a child protection to a family support perspective. Thus, a greater emphasis is put on the preservation of the ties between the child and the birth family : in Re C and B (Children) (Care Order : Future Harm), where two very young children had been taken into care as a result of the mother’s past mental health problems, Hale LJ recalled the European Court’s ruling in Johanssen v Norway that cutting off the relationship between a child and his/her family is only justified by “the overriding necessity of the interests of the child”. In Re B (A Child) (Adoption Order), the Court of Appeal held that any interference with the father’s right to family life must be necessary and proportionate in accordance with article 8 (2) of the Convention, and that the freeing for adoption of a child who had strong relationship with the paternal family through contact is inappropriate.
3. The no order principle, the care plan and the final decision
According to s. 1 (5) of the Children Act 1989, (the “no order principle”), courts should not make any order unless doing so would be better for the child. Therefore, they have a duty to evaluate if the course of action proposed by the local authority is in the best interest of the child. They exert this control through the care plan proposed by the local authority.
Until recently, courts had no power to review the local authority’s plans once a care order was made, and were therefore expected to scrutinise the plan carefully. When not satisfied that a care plan is in the child’s best interest, a court could only refuse to make the order. In Re S and D (Children : Powers of Court), the Court of Appeal held that :
“[the judge] has only two alternatives : he may make a care order knowing that the local authority will then act in a way which he considers to be undesirable ; or he may make no care order”.
Courts could neither attach a condition on a care order to place a child in a given setting, nor do so on an interim care order.
However, in W and B v Torbay County Council and W v Bedfordshire County Council the Court of Appeal held that under s. 6 (1) of the Human Rights Act 1998, it is unlawful to make a care order if the care plan involves a disproportionate interference in family life. Thorpe LJ suggested that the construction of the Children Act should be amended, and judges be allowed to make short-term interim care orders “when the plan seems inchoate” or until “some events or process vital to planning and deciding the future” are fulfilled. Thus, the Court gives precedence to the respect of children and parents’ human rights over the separation of administrative and judicial powers.
H. In France
The juge des enfants has a wide discretionary power and again, little legal guidelines to orientate his/her decisions.
Once an assistance éducative procedure is commenced, a file is open for the family and is kept in court until the judge makes a plus-lieu à assistance éducative order, which is a statement that the child is not in danger any longer or has reached eighteen years old. As long as the family does not move into a different area, the same judge remains in charge of the case. The role of the judge in the follow-up to the child’s situation has major consequences in the exercise of judicial discretion : juges des enfants come to know parents and children very well and develop an empathy with them. Therefore, heavy emotional burdens are associated with this function. As B. Luckock, R. Vogler and H. Keating pointed it, “this, of course, is the burden of paternalism faced by all parental figures who act benevolently”. This specific awareness and the sense of responsibility in the future of children, together with the close relationship with social services, guide juges des enfants in their decisions.
1. The approval principle
Article 375-1 of the Code civil states that the juge des enfants “shall always strive to obtain family’s consent to the measure envisaged”. The family is considered as a unit including the parents and the child and the principle applies to both. It is therefore assumed that their interests are mutual.
This duty implies that the first part of the decision process, once the danger criteria are met, consists for the judge in listening to what parents suggest. If they do not put anything forward, the judge triggers their comments on the measure envisaged. This duty is linked with the fact that the aim of educational measures is to change the functioning of the family, as in a therapeutic process where the participation of the persons involved is essential. However, the judge is not bound by their wishes and purely coercive measures are not out of the question. Ordering a coercive measure does not exonerate the judge from seeking the family’s approval : once the main decision is made, the details of its organisation can be left open to discussion. In this perspective, parents’ wishes are taken into account as long as they do not harm the child. As to the child’s wishes, the Cour de Cassation held that the judge has to “take into account the feelings expressed by the minor and failing to do so is a ground for cassation”. However, the judge “is not bound by their expression”.
2. The current environment principle
In addition to the approval principle, article 375-2 of the Code civil states “every time it is possible, the minor must remain in his/her current environment”. The Cour de Cassation held that the meaning of “current environment” is, as a matter of principle, the birth family : in that case, the court dismissed the application of foster parents who had been bringing up a child since she was eight months old and who opposed her return to her birth parents on the basis of the current environment principle.
This approach is consistent with the European Court of Human Rights assumption that :
“taking a child into care should normally be regarded as a temporary measure to be discontinued as soon as circumstances permit and that any measures of implementation of temporary care should be consistent with the ultimate aim of reuniting the natural parent and the child”.
It could lead to the result of prioritising parents’ rights over children’s welfare, in particular where children have bonded with foster parents : if there is no more danger for children to be returned to their parents, the judge cannot refuse their rehabilitation. However, as the danger criteria are vague and related to the suffering of the child (see Chapter IV), it is within the judge’s discretion to estimate that the disruption involved by a change in the child’s situation could place this child in a situation of danger.
The law assumes that the child can remain in his/her family if the latter is supported, “in order to overcome the material and moral difficulties it encounters”. In practice, less than a half of the decisions are placement orders (98, 047 placements on a total of 214, 914 decisions in 1999, that is to say 45 %). Furthermore, the philosophy of placement is to allow parents to exert their parental function up to the maximum possible extent. It is never intended to be the replacement of the birth family by another (see Chapter VI).
Moreover, the imprecise character of the danger criteria and the shift to the judiciary (described in Chapter IV) implies that a comparatively much more important proportion of children than in England are involved in care proceedings. Therefore, there is a greater emphasis on the less interventionist approach. Accordingly the judiciary has developed its own practice, which is consistent with the “defence of the birth family and parent’s rights” philosophy.
3. The welfare of the child
French law does not refer to any principle of welfare or best interests of the child. In private law proceedings it is the criteria generally applied to decide with which parent the child will live. In public law proceedings, courts have specified their concern for the “current needs of the child”. However, the Conseil d’Etat held that the welfare principle of the United Nations Convention on the Rights of the Child is directly applicable, which limits the situations where the balance between parents’ rights and children’s rights is detrimental to the child.
Because of the inquisitorial nature of the proceedings, the judge has extensive powers as to the organisation of the care of the child. Contrary to the English courts that have to decide what is in the best interest of the child on the basis of a care plan, the juge des enfants him/herself determines what course of action should be taken for the child. Although it is not a legal requirement, the judge is expected to state the objectives of the measure and to give directions to the appointed social service on the way they should be reached. He/she has the choice to place the child at the Aide Sociale à l’Enfance or directly in an educational or health institution. This includes the possibility to confine minors. Closed educational institutions existed in France but were suppressed because of the violence of social workers towards young people, and because there was no evidence of its overall beneficial character. Due to a lack of means to contain children who harm themselves and refuse protection, the Ministry of Justice decided to promote the creation of CER (centres éducatifs renforcés), where a highly qualified team of social workers and psychologists work intensively with young people whose situation could fit into s. 25 of the Children Act. However, most of these institutions only admit young offenders and many do not function in the expected conditions. The only possibility of confinement remains in the placement of the child at a hospital for assessment or treatment. There is no specific regulation on it and there is a general consensus amongst the judiciary and the medical profession that the mental health regulations are more appropriate and consistent with children’s right to liberty.
Article 375-4 of the Code civil entitles the judge to give directions that the child should attend an educational or health institution, and the Cour de Cassation interpreted this provision as a possibility for the judge to direct the Aide Sociale à l’Enfance into what kind of setting the child should be placed. This decision has been criticised for allowing the judiciary to intervene in the exercise of the administration’s discretion but gives coherence to juges des enfants’ powers as to the determination of the future of the child.
This delicate balance between the interest of the child, his/her wishes and the parents’ requests is made easier by the fact that all the measures ordered by the juge des enfants are temporary and can always be altered at the request of the parents, the child or the service appointed to implement the measure (see Chapter VI).
Chapter VI. Outcomes for children and their families
In England as in France, the outcome of a court decision for a child can be either to stay with his/her parents or to be placed in a different environment.
A. The situation of the child
1. A child who remains with his/her parents
a. In England
Under a supervision order
The child can be placed under the supervision of the local authority or under that of a probation officer. Initially designed to deal with delinquency, this measure is directed to the child : the supervisor has the duty to “advise, assist and befriend” him/her, and the court can order the child to comply with the directions given by the supervisor. The consent of the child is not necessary, except for a psychiatric and medical examination or treatment when he/she has sufficient understanding.
If parents consent to it, the court can add requirements to a supervision order. If they do not comply with the requirements, the only action the supervisor can take is to apply for a variation of the order or for a care order.
The duration of supervision orders is limited to one year, renewable to a maximum extent of three years. If further advice and assistance are needed, the local authority will have to apply for a care order or to persuade the parents to agree to a voluntary intervention. Time-limitation is an indication that, when a child is suffering significant harm, parents can only be trusted to look after the child for a short period of time. In the law, supervision orders are therefore more a means to control the child and the family rather than to support it on a long-term basis, which would be a characteristic of a welfare-based system like the French one.
Under a care order
As parental responsibility is transferred to local authorities under a care order, they are entitled to choose the place where the child will live. In 1998, 11 % of children looked after were placed with parents. This possibility is tightly regulated, as the purpose of a care order is to protect a child from parental harm. It is generally used as an attempt to rehabilitate children with parents after a placement away from the family, or when it is in the best interest of the child to remain with his/her parents despite a worrying situation, which makes it necessary for the local authority to be able to protect the child without firstly going to court.
b. In France
Under an educational measure in open environment
One of the main features of the French system is the concept of éducation, which includes the child’s total social, emotional and environmental development and well-being. It is central to the way social workers intervene in the family. Article 375-2 of the Code civil presents it as a means to allow the child to remain at his/her birth parents by changing the functioning of the family and making it able to protect the child. Under judicial authority, the educational measure is also aimed at recalling parents’ legal duties to their children, to impose a social norm.
An educational measure can last up to two years but there is no limitation on the number of renewals. It is therefore possible to organise a long-term, supportive intervention, without which parents could not keep their children. If the functioning of the family cannot be changed, this measure becomes a “crutch for disabled family”, which is still preferred to a placement of children.
The judge can impose conditions, such as “resorting to an education or health institution, or having a professional activity”. Along with the “birth family and parents’ rights” perspective (L. M. Fox Harding), it is not specified, whether these conditions apply to the child or to the parents : the concern is not the parents’ failure to comply with these conditions, but the child’s welfare. The vagueness of these conditions gives the juge des enfants a wide discretion. Parents’ consent is not required but the only possible sanction is the placement of the child.
Under a placement decision
The judge can entrust the non-resident parent with the child, and this possibility sometimes conflicts with the juge aux affaires familiales’ jurisdiction (see Chapter I).
When parents live together, as a placement can only be ordered when it is necessary to withdraw the child from his/her current environment, there is no legal provision allowing the child to be accommodated at them under a placement judgment. However, the judge has a duty to regulate contact with parents and can allow the child to stay with his/her family for extensive periods of time (several weeks). This is usually organised with support and assessment, in order to prepare a definitive rehabilitation of the child with his/her family. It would be contrary to the philosophy of the French system not to stop a placement when the child has safely spent more than several weeks at his/her family.
2. A child who is placed out of his/her family
a. Care orders
In England, the former emphasis on permanency gave the way to the concept of partnership between parents and local authorities promoted by the Children Act 1989, in order to put an end to the situation of children languishing in care, with unsatisfactory placements and no significant links with their families. By empowering parents, local authorities and the child, the Children Act 1989 attempted to reconcile local authorities’ duty to promote the welfare of the child, parents’ right to keep a say in the upbringing of their child despite of his/her being in care, and children’s conflicting rights to autonomy and as members of their family. This reconciliation is possible if local authorities succeed to organise a partnership with parents.
Local authorities’ duties
A care order places a child under the control of the local authority, which will have specific duties in relation to him/her and his/her parents. Some of these duties are owed to the child as an individual, some others as a member of a family.
As to the first category, the local authority has to promote the child’s welfare, to give due consideration to his/her ascertained wishes and feelings before making any decision, to accommodate the child, in a foster family, a children’s home, a relative of the child or any suitable person, to advise, assist and befriend the child after care. Furthermore, the House of Lords held that it was not necessarily unjust or unreasonable to impose a common law duty of care on a local authority in relation to children in its care in a case where the claimant complained about the arrangements the local authority had made for him under a care order. The Lords stated that, unless the court exercised its jurisdiction to consider the question, the interests of the child would not be sufficiently protected.
As to the second category, the local authority has to give due consideration to the parents’ ascertained wishes and feelings, to take into account the child’s religious, cultural and ethnic background, to accommodate the child near his/her home and with his/her siblings if they are also in care, and to allow the child reasonable contact with his/her parents.
Parental responsibility
In order to fulfil their duties, local authorities are given parental responsibility for children under their care. It does not deprive parents of their own responsibility. This is a fundamental change from the previous law and decisions on the future of the child are now expected to be the result of a partnership. However, the decision power is firmly vested in the local authority, which determines the extent to which parents meet their parental responsibility. It is therefore easier for local authorities to organise the child’s day-to-day care than it is for their French counterparts, whose powers are not so clearly defined (see below).
Contact
Contrary to the French system, contact is constructed as a right of the child : children can apply for an order for contact to be allowed or refused without needing leave of court and parents right to apply successively for contact after a refusal is limited by s. 91 (17). Local authorities have a duty to allow reasonable contact except when a suspension is necessary to safeguard the child’s welfare as a matter of emergency and for a maximal period of seven days. For any further limitation, they have to apply for a court order. Courts have to consider contact arrangements before making a care order and can make a decision either in the care order or subsequently on the application of the local authority, the parents or the child. After the decision however, local authorities can depart from their directions with parents’ agreement. This emphasises the importance of partnership over courts decisions, and arguably undermines the court’s assessment of the child’s welfare : the court cannot forbid a local authority to organise any contact.
The presumption of contact is applied in the light of its purpose to promote the welfare of the child. Since the implementation of the Human Rights Act 1998, courts also have to beware that the determination of contact complies with parents and children’s rights to family life, and in particular that limitations are proportionate to the necessities of the protection of the child (see Chapter V).
Adoption
When prospects of rehabilitation of the child with his/her family are believed to be too low, the local authority can organise his/her adoption in order to secure permanency and stability. It can be part of the initial care plan, but more often it is decided after attempts to rehabilitate the child with the parents. Parents’ lack of consent can be overruled when it is unreasonably withheld or when parents fail to discharge their parental responsibility without reasonable cause. A small proportion of children in care are placed for adoption. On the one hand, the draconian nature of this solution raises questions about children and parents’ rights : adoption as an outcome of childcare proceedings is not inconsistent with parents’ rights under article 8 of the European Convention on Human Rights, but the Court scrutinises closely the decision-process, especially its proportionality to the aim of protecting the child. On the other hand, adoption could be considered as a child’s right to a “family for life”, which would limit the shift to the family support model that the Human Rights Act 1998 seems to enhance.
b. Placements decisions in France
The aim of a placement, like in any other educational measure, is to promote a change in the functioning of the family in order to enable it to fulfil its upbringing role again. It is essentially temporary : placements at the Aide Sociale à l’Enfance or in institutions cannot last more than two years. Even in the most serious cases, the Aide Sociale à l’Enfance will always attempt to “repair” the relationship, in the belief that the child will never thrive if the damage is not repaired. If it is not possible, placements are usually designed to allow parents to retain a place in the child’s life and to avoid depriving the child of his/her birth family. Except when the Aide Sociale à l’Enfance is entrusted with the child, the judge can always order an educational measure in open environment in order to achieve these objectives. More than a half of the children in care are placed in homes. This is expected to promote the child’s social development without replacing his/her family with another, and also to facilitate the rehabilitation of the child with his/her family. Judges and social services remain anxious about the possible rivalry with the birth family and the difficulties that may arise when the rehabilitation of the child is planned.
The duties of the entrusted authority
When the judge decides to entrust the Conseil Général with the child without stating where the child should be placed, the decision on the location of the placement belongs to the Aide Sociale à l’Enfance. Before any decision related to his/her education is taken, this service has to ascertain the opinion of the child and to obtain his/her parents’ written opinion. If parents are opposed to the decision taken by the Aide Sociale à l’Enfance’s, they can apply to the juge des enfants for a variation of the decision.
Authorities entrusted with a child have a duty to protect him/her from any further danger. The Aide Sociale à l’Enfance is accountable to children and parents for “faute de service” (breach of an administrative duty ), and the State can be sued for damages by parents or children harmed as a consequence of a lack of sufficient precautions taken by its services.
Parental responsibility
Parents retain their parental authority, but the person entrusted with the child does all the usual acts related to the child’s supervision and education. Contrary to the English system, there is no presumption that the person or service entrusted with the child is in a more powerful situation than parents, and the division of powers is not easy to apply in practice. Conflicts between parents and the service in charge of the child are resolved by the judge, who is therefore widely involved when parents refuse to co-operate.
Correspondence and visit : a parents’ right
Article 375-7 para. 2 of the Code civil gives parents a “right of correspondence and visit”. The judge directs its modalities and can suspend its exercise if the interest of the child requires it. It is therefore assumed that parents’ right of contact is in the interest of the child. The separate interests of the child are only taken into consideration when it is established that contact is detrimental to him/her. As social services appointed to follow up the situation of the child are expected to prepare his/her return to his/her family, the regulation of contact needs flexibility, which led many judges to delegate the organisation of contact to these social services. The Cour de Cassation criticized this practice, holding that the organisation of contact was “the exclusive power of the judge”. To avoid a congestion of the courts, judges now order contact as a matter of principle and invite parents and social services to agree on their modalities, any modification or conflict being referred to the judge for further directions. The Chambre Criminelle of the Cour de Cassation did not oppose these modalities but the Chambre civile has yet to give its approval.
Adoption
As the juge des enfants is in charge of the reunification of the family, adoption is not in his/her jurisdiction. It can however be an outcome of assistance educative proceedings : when parents have lost contact with their child for at least a year, the Aide Sociale à l’Enfance is to request the civil court to declare the child abandoned. Social services had been criticised for their reluctance to request a judicial declaration of abandonment and since a 25th July 1994 law suppressed social services’ discretion, they have a duty to request it.
Once satisfied that parents lost interest in their child, the court can only refuse to declare the child abandoned if parents are in a very distressed situation. It is arguable that parents whose child is placed as a result of assistance educative proceedings are generally in such a situation.
Adoption is seen as a failure of the system to rehabilitate the child in his/her birth family and adoption proceedings are brought very rarely. For example, in 1997, out of 111, 031 children subject of a placement decision by a judgment, only 258 of them have been adopted after a declaration of abandonment.
If parents have kept an interest in their child, their refusal of consent to adoption can only be overruled when abusive, which has been interpreted as wilfully harmful.
B. Adaptation of the decision to the child’s needs
1. In England
Consistently with article 25 of the United Nations Convention on the Rights of the Child, local authorities have a duty to review periodically the situation of a child in care. However, without a possibility to challenge their decisions, there is no guarantee that the course of action taken to protect the child will be adapted to his/her needs. Parents can challenge the local authorities decisions by administrative complaint, by default powers of the Secretary of State, judicial review or by an application for contact or discharge of the order.
Applications for discharge can be made by parents, the child or the local authority. The court can also substitute a supervision order for the care order, without having to satisfy itself that the threshold criteria are still met. Courts’ discretion is limited by the paramountcy of the child’s welfare : the mere absence of a risk of harm is not a sufficient reason to discharge a care order, whereas it is in the French system. However, in the light of the European Court of Human Rights’ case law, a care order should be discharged if the breach of parents’ right to family life it creates is not anymore proportionate to the necessities of the protection of the child.
Until recently, once the final order was made, there was no continuing involvement of the court in the child’s situation and no control of the implementation of the care plan. This was not a statutory limitation but the result of the House of Lords’ interpretation of the separation of powers between local authorities and courts. In Re B (minors) (care : contact : local authority’s plans), Butler-Sloss LJ said :
“once a care order has been made, the court can no longer monitor the administrative arrangements, unless there is an application before the court”.
As Mary Hayes puts it in The proper role of courts in child care cases, “the function of a court is to adjudicate and then to step back”. Further decisions can only be made on new applications about contact or for the discharge of a care order but there is no guarantee that the same judge will handle the case, especially in family proceedings courts where cases are tried before a large number of part-time magistrates.
The consistency of this judicial construction of the role of courts with parents and children’s right to family life under article 8 of the European Convention on Human Rights can be questioned, especially when care plans are not implemented because of a lack of resources, or when the situation of the family changes : in S and G v Italy, the European Court of Human Rights found a violation of article 8 on account of the limited number of contact visits between a mother and her children, and criticised the court for failing to exercise proper supervision on social services implementation of its decision. In W and B v Torbay County Council and W v Bedfordshire County Council, the Court of Appeal reversed its previous rulings and held that parents and children should be given a possibility to go back to court when the care plan is not implemented or when it is not anymore adapted to their changing situation. Sedley LJ stated that :
“in the light of the Human Rights Act 1998 a duty rests upon the local authority to return to the court if a significant element in the care plan has failed or is threatening to fail”.
However, relying on local authorities to bring the case back to court is not sufficiently protective of parents and children’s rights. The Court of Appeal decided that a control of local authorities’ implementation of the care plan and of the continuing proportionality of this plan is necessary. This control can be organised by making successive interim care orders and by imposing on the local authority a duty to make a report when they fail to implement the care plan or on specific elements highlighted by the court (Thorpe LJ used the expression “starred orders”). This report could be sent to the children’s guardian, who would apply to court for directions. The guardian’s functions would be extended for this purpose. It is not yet clear, whether this control will remain strictly confined to the protection of Human Rights or will be generalised. The Court of Appeal however conceives the control restrictively, as a means to avoid breaches of human rights and not as a monitoring of the local authority’s day-to-day care of the child. It is also difficult to predict how courts will carry out these new functions but they are likely to have an impact on the way the welfare of the child is assessed. Indeed, it leaves the door open for further adaptations of the decision and will give the judiciary a better insight of how their decisions are implemented.
2. In France
a. The temporary character of the measure
In order to emphasise the inherent temporary character of educational measures, the law No 86-17 of 6th January 1986 added a third paragraph to article 375 of the Code civil, giving the judge a duty to determine the duration of the order, with a maximum of two years. At the end of the period, the judge will summon the parents, the child and the service in charge of the measure, and will reassess the situation of the child and the family as if it were a new case. This provision is consistent with the “defence of the birth family and parents rights” approach. In situations of long-term placement, it can lead to a total disregard of the child’s interest of being afforded stability and permanency. However, this is mitigated by (1) the possibility, recognised by the Cour de Cassation, to differ the return of the child in order to avoid his/her being perturbed, (2) the possibility of the Aide sociale à l’Enfance to apply for a delegation of parental authority and (3) by its duty to apply for a judicial declaration of abandonment when parents lost interest in their child’s upbringing.
b. The control of the implementation of decisions
The judge has a strong directive role in the implementation of his/her decisions : he/she has jurisdiction to settle any dispute related to assistance éducative and to give directions throughout the measure. These directions create duties to parents and the service in charge of the measure and cannot be departed from by agreement.
The service appointed to implement a measure has to send a “report on the situation and the development of the minor” at least once a year. In addition, the judge can visit a child where he/she is accommodated or ask an independent service to do it on his behalf.
If any modification of the initial decision is needed, the service has to refer the matter to the judge who will give new directions or even summon the family in case of a conflict.
The nature of the decision can be changed at any time, even pending an appeal, at the request of the child, the parents, the service, the procureur or on the judge’s own motion, in order to make the measure fit to the current situation of the child and the parents.
These judicial powers give the court an important role in the regulation of disputes between local authorities, children and parents, the former being continuously legitimated in their intervention, the latter being empowered to resist administrative paternalism. In the long term, it allows parents and children to challenge Aide Sociale à l’Enfance’s strategies and their interests to be duly taken into account. Furthermore, it makes the judge fully aware of the type of services different institutions propose and enables him/her to have a critical opinion of the Aide Sociale à l’Enfance’s plans for the future of the child. Some judges, reluctant to the introduction of procedural protections of parties, argue that the judge’s powers are the best guarantee for families not to be subject to administrative arbitrariness. However, the system relies on the personal capacity of the juge des enfants not only to lead the court proceedings and restrain himself from using over-intrusive interventions, but also to exert a tight control on Conseil Généraux and private agencies under his jurisdiction. This is not always possible, since most juges des enfants are overburdened with cases : when judges do not have the means to exercise their powers, Conseils Généraux are in a similar situation to the English local authorities before the Torbay case.
In conclusion, it is clear that the protection of children by the courts in England and France is essentially dissimilar : English courts and French juges des enfants treat the interests of children and families differently. However, what they do have in common is a concern to assimilate the emerging European practice as demonstrated by the European Court of Human Rights case law. Whilst the French system will offer greater procedural guarantees and an increased consideration to individual needs, thus retreating from its traditionally paternalistic stance, the English courts are tending to show more concern for the right of parents and children to remain together and for the implementation of their decisions. This will imply a more interventionist approach but in a less invasive fashion. These changes are not a search for uniformity since both systems clearly suit specific legal and social culture : and any attempt to transplant concepts or institutions would inevitably lead to rejection.
However, they can both learn from each other : an institution like the children’s guardian in France would ensure that the child’s voice is always given consideration by juges des enfants and would make the systematic appointment of a lawyer meaningful for younger children. A greater concern for permanency could be the right answer to children’s anxieties about the stability of the arrangements made for them. In England, a space where parents and children could express themselves could be created within the court system, with the involvement of the children’s guardian in mediated settlements centred on the child’s welfare ; it would give judicial intervention a more constructive stance, away from the current defensive proceduralism and “fait accompli” compromises. An important concern for English children is also the lack of preventive work with families, and the fact that children are filtered out of the protection net. A less investigative approach from social services and a greater offer of services could improve the situation, but would imply considerable financial input, when poor resources and insufficiently trained staff are already a deep concern.
