“This case is about you and your future”: Towards Judgments for Children
| Author | Helen Stalford,Kathryn Hollingsworth |
| DOI | http://doi.org/10.1111/1468-2230.12536 |
| Published date | 01 September 2020 |
| Date | 01 September 2020 |
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Modern Law Review
DOI: 10.1111/1468-2230.12536
“This case is about you and your future”: Towards
Judgments for Children
Helen Stalford and Kathryn Hollingsworth∗
A handful of ‘child-friendly’ judgments have emerged in the UK in recent years, attempting to
adopt a child-centred approach to the decision-making stage of the legal process. Most notable
is Sir Peter Jackson’s judgment in Re A: Letter to a Young Person which, in taking the form of a
letter to the child, has been applauded as a model of how to achieve ‘child friendly justice’. This
article examines how and why the form and presentation of judicial decisions is an important
aspect of children’s access to justice, considering not just the potential but the duty of judges to
enhance children’s status and capacities as legal citizens through judgment writing. We identify
four potential functions of judgments written for children (communicative, developmental,
instructive and legally transformative), and call for a radical reappraisal of the way in which
judgments are constructed and conveyed with a view to promoting children’s access to justice.
INTRODUCTION
‘Dear Sam . . . This case is about you and your future, so I am writing this letter as a
way of giving my decision to you and to your parents.’
These are the opening lines of Mr Justice Peter Jackson’s celebrated decision
in Re A: Letter to a Young Person,1an English case concerning a 14-year-old
boy (Sam) at the centre of a bitter custody dispute between his father and his
mother and stepfather, with whom Sam was resident. Sam’s father wanted to
relocate to another country and Sam, who wished to go with him, made the
original application to the High Court, instr ucting his own solicitor. The judge
issued his final decision in the form of a letter to Sam which was read to his
parents and then given to his solicitor to pass on and explain to him on his
return from a school trip. The letter was anonymised and published on Bailii2
with Sam’s consent. It is approximately 2,750 words long and sets out in clear
terms the current law, the role of the judge, the key questions that were raised
in the case, the matters that were taken into account in reaching the decision,
and the final decision itself.
∗University of Liverpool and University of Newcastle respectively. We are extremely grateful to
Michelle Farrell, Christina Hudson, Rosemary Hunter, Ton Liefaard, Aoife Nolan and the anony-
mous reviewersfor their insightful comments on an earlier draft of this article. Wealso benefited from
valuable feedback following work-in-progress seminars to colleagues in our own institutions, and to
those who responded to our paper at the SLSA annual conference in April 2019. Any remaining
errors or omissions are our own.
1 [2017] EWFC 48.
2 British and Irish Legal Information Institute at http://www.bailii.org/ (see specifically
https://www.bailii.org/ew/cases/EWFC/HCJ/2017/48.html (last accessed 10 April 2020)).
C2020The Authors. The Modern Law Review published by John Wiley & Sons Ltd on behalf of Modern Law Review Limited.
(2020) 83(5) MLR 1030–1058
This is an open access article under the terms of the Creative Commons Attribution License, which permits use, distribution and
reproduction in any medium, providedthe orig inal workis properly cited.
Helen Stalford and Kathryn Hollingsworth
There is nothing particularly remarkable about this decision in substance
– it is a routine private family law case concerning the wishes and feelings
of a competent 14-year-old boy – but the presentation of the judgment has
been applauded by the legal community and children’s r ights advocates alike
as a model of how to communicate with children. It has been recognised for
some time now, and certainly since the advent of the UN Convention on the
Rights of the Child 1989 (UNCRC), that it is not enough to simply afford
children rights on paper; some adaptations to justice proceedings need also
to be made to accommodate their distinct needs and vulnerabilities and to
enable children to participate meaningfully in the legal process. This notion is
commonly referred to as ‘Child Friendly Justice’, a term coined by the Council
of Europe in the context of its Child Friendly Justice Guidelines, published in
2010.3There is an ongoing campaign to embed this guidance into everyday
legal practice, manifested in a proliferation of training toolkits, funding for
research and exchange of best practice. The judiciary in England and Wales
are also becoming increasingly vocal about the need to create the conditions
to facilitate more effective participation by children in judicial proceedings.
Particularly noteworthy is Sir James Munby’s plea to the judiciary to ‘ponder
. . . whether our traditional approach is right; whether it accords with the
demands of our international obligations; and . . . how we can continue to
justify it when so many of those who represent the voice of the child are
pressing for change.’4
Commendable as these calls to action are in seeking to bring justice systems
and practices into line with children’s rights, efforts to date to render the justice
process ‘child friendly’ have almost entirely focused on the procedures for
treatment of children pre-decision, notably in the context of hearing evidence
and enabling children to ‘feel’ part of proceedings.5Whilst there is ever clearer
guidance – imperfect as it may apply in practice – as to how children’s views
should be communicated to the court (especially the judge),6there is rather
less certainty and consistency regarding how the views of the judge are, and
should be, communicated to the child. The ‘Letter to Sam’ is one of a handful
of so-called child-friendly judgments to have emerged from the UK and some
3 Council of Europe, Guidelines of the Committee of Ministers of the Council ofEurope on c hild-friendly
justice. (Strasbourg: Council of Europe, 2010). For a brief discussion of how guidance on child-
friendly justice has evolved, see H. Stalford, L. Cairns and J. Marshall, ‘Achieving Child Friendly
Justice through Child Friendly Methods: Let’s Start with the Right to Information’ (2017) 5
Social Inclusion 207, 207-208.
4 J. Munby, ‘Unheard Voices: the Involvement of Children and Vulnerable People in the Family
Justice System The Annual Lecture of The Wales Obser vatory on Human Rights of Children
and Young People’ lecture delivered by Sir James Munby, President of the Family Division at
the College of Law, Swansea University, 25 June 2015, 2; See also J. Munby, ‘Children Across
the Justice Systems’ The 2017 Parmoor Lecture to the HowardLeague for Penal Reform Given
by Sir James Munby President of the Family Division 30 October 2017, 8.
5 See for example the comments of Lord Thorpe in Re G (Abduction: Children’s Objections) [2011]
1 FLR 1645.
6 See U.Kilkelly, Listening to Children about Justice: Report of the Council Of Europe on Child-Friendly
Justice (Council of Europe,5 October 2010) 16 who notes that ‘[e]mpir ical research with children
and young people has found that children favour speaking directly to the judge because they
want their views heard by the ultimate decision-maker’.
C2020The Authors. The Modern Law Review published by John Wiley & Sons Ltd on behalf of Modern Law Review Limited.
(2020) 83(5) MLR 1030–1058 1031
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