Saq2.edited.edited

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1 Section A: Question 2 The role of the child in private and public law proceedings is a critical issue that requires careful consideration by the UK courts. When dealing with cases involving children, the courts have developed a robust framework of case law and statutes to guide their decision-making. In public law proceedings, the child is treated as a party to the case, with welfare being the chief consideration under section 1 of the Children Act 1989. In these cases, the court needs to consider various issues, including the child's physical, educational and emotional needs, any injury they have incurred or may be in danger of, and the likely impact of any change in their circumstances toward them. Furthermore, the court must consider the child's views and wishes, considering their age and maturity, as stipulated in section 1(3) of the Children Act 1989. To ensure that the child's best interests are represented, the court may assign a Children's Guardian, an independent person who provides the court with advice and safeguards the child's welfare. The importance of the child's voice is also recognized in private law proceedings. The court must consider the child's ascertainable wishes and feelings when making Child Arrangements Orders under section 8 of the Children Act 1989. In Re D (A Child) [2016] , which concerned a child who was removed from her mother at birth due to concerns about her welfare; the court considered a series of factors, including the age of the child, their emotional and physical needs, and the effect of the separation from her mother. The court also considered the child's views and wishes but ultimately found it was in her best interests to remain in care rather than be returned to her mother. This case highlights the significance of considering the child's wishes, views and the need to balance these with other important factors related to their welfare. The court relies on the Children and Family Court Advisory and Support Service (CAFCASS) to obtain a child's views and opinions. However, the court does not routinely order a CAFCASS report/section 7 report. In cases where such a report is ordered, CAFCASS may not always possess the capacity or resources to fully understand the child's wishes and feelings. Moreover, in cases where the parents agree on residence and visits at mediation before the proceedings, the child's voice may not be heard at all. Such creates a significant gap in attention to the child's views. There is a considerable disparity between the level of involvement of the child's say in care proceedings, where the child's lawyer and Children's Guardian are involved throughout the case, versus private law proceedings.
2 Providing separate representation to the child may be necessary to ensure their views and wishes are adequately represented. For instance, a separate representation may be necessary if a child has a standpoint or interest inconsistent with or cannot be represented by any adult parties involved. Similarly, if the child's views and wishes cannot be accurately conveyed through a report to the court or if an older child opposes a proposed course of action, separate representation may also be necessary. The case of Re W (A Child) [2016] highlights the issue of separate representation in private law cases. The court held that a child's best interests and views could not be accurately represented through a CAFCASS report; thus, separate representation was necessary. This case underscores the need to ensure that children's voices are heard and their best interests are adequately represented in legal proceedings. Providing separate representation to the child may be necessary to ensure their views and wishes are adequately represented. For instance, a separate representation may be necessary if a child has a standpoint or interest inconsistent with or cannot be represented by any adult parties involved. Similarly, if the child's views and wishes cannot be accurately conveyed through a report to the court or if an older child opposes a proposed course of action, separate representation may also be necessary. The role of the child in private and public law proceedings is an important and complex issue in the UK. While the courts have established a comprehensive framework to guide their decision-making, there are still gaps in the system, and the child's voice may not always be heard or represented adequately. In some cases, separate representation may be necessary to ensure the child's best interests and views are accurately represented in court.
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