K (A Child), Re (Rev 1)

A child’s attendance at an important hearing about their future is not subject to a presumption that attendance will be harmful. The court must undertake an open evaluation of the consequences of attendance or non-attendance, considering the child’s welfare and the fair management of the proceedings. Relevant matters include the child’s age and understanding, wishes, emotional state, possible influence, the matters and evidence to be discussed, behaviour, practical arrangements and the integrity of the proceedings. A child of sufficient understanding who wishes to attend should generally be allowed to attend at least part of the hearing unless clear reasons justify refusal. In secure accommodation cases, deprivation of liberty makes the reasons for refusal particularly cogent.

A local authority applied for authority to keep K, aged 13, in secure accommodation for three months. K wished to attend the hearing, but the local authority opposed her attendance because of concerns about psychological harm, violence, absconding and disruption. Her Children’s Guardian ultimately supported her attendance. The County Court referred the issue to the High Court for preliminary determination. The central question was how the court should balance the child’s welfare, participation and the fair conduct of proceedings when deciding whether the child should attend.

1. Attendance decision. The court directed the local authority to arrange K’s attendance at the secure accommodation hearing. There was no convincing evidence that attendance would psychologically harm her, and the practical difficulties could be managed.
2. Applicable approach. Rule 12.14 of the Family Procedure Rules 2010 contains no inbuilt presumption for or against attendance. The court must make an open evaluation of attendance and non-attendance, having regard to the child’s welfare and the court’s ability to manage the proceedings fairly.
3. Relevant factors. The evaluation ordinarily includes the child’s age and understanding; the nature and strength of the child’s wishes; emotional and psychological condition; possible influence by others; the matters to be discussed; the evidence likely to be given; behaviour and risks to court users; practical and logistical considerations; and the integrity of the proceedings. The fact that a child may need guarding, or that disruption cannot be ruled out, is not by itself decisive.
4. Secure accommodation. Applications under section 25 of the Children Act 1989 involve deprivation of liberty. Accordingly, reasons for refusing a sufficiently mature child’s request to attend will need to be particularly cogent. If attendance at the hearing is unsuitable, a meeting with the judge may provide an alternative.
5. Procedure. Where a child wishes, or may wish, to attend, the parties must inform the court of the proposed arrangements. Any disagreement should, where possible, be brought before the court as a preliminary issue in good time, rather than resolved through informal communications.

The County Court referred the preliminary issue of K’s attendance to the High Court. The High Court directed that K should attend the hearing, leaving arrangements for the conduct of the hearing to the County Court judge.