Dr Aoife Daly
Staff at the European Children’s Rights Unit (University of Liverpool) and elsewhere are involved in Children’s Rights Judgments – a project to progress the use of a children’s rights approach in judgment writing. Re A (Application for DNA Testing)  EWCA Civ 133 concerns an appeal against a judgment of the Liverpool County Court and it provides a notable case study to consider from a children’s rights perspective. It is probably the least child-friendly judgment you are likely to see in this jurisdiction in recent times. The reaction by a judge to the application of a child for a court order makes for extraordinary reading, and serves as a reminder of the distance left to travel in terms of universal acceptance of children’s rights as legal actors and indeed as human beings.
The case at County Court level concerned an application by a 13-year old girl in care, S, to obtain a court order for DNA testing. She had believed for some time that the man applying along with S’s mother for a discharge of the care order concerning S and her siblings was not her birth father. S was applying for the order for DNA testing through her solicitor, whom she was directly instructing.
The reaction of the sitting judge, Judge Dodds, to the application was quite astonishing considering – as noted by the appeal judges – the right of children to know the identity of a birth father is a well-recognised one in this jurisdiction. There appeared to be nothing unusual about the scenario before him.
One must directly quote Dodds, via the text of the appeal judgment, in order to adequately present the eccentricities of the language used, and the attitude apparent. In relation, for example, to the cost of the DNA testing, Ms Roberts [S’s solicitor] told the judge that Legal Aid would [pay] for it. The response was:
“You can pay for it if you want, I will let you. In fact, I am half minded to make an order that you do so”.
Judge Dodds continued:
“If she [S] told you that the moon is made of green cheese will you say, ‘Yes, S, no, S, three bags full S?”
“The lunatics have truly taken over the asylum” … “For heaven sake, in this day and age especially, just because the lunatic says, ‘I want, I want’, you do not have to respond by spoon feeding their every wish”.
The judge went on to comment:
“Can I tell you how bitterly resentful I am at how much of my Saturday I spent reading this codswallop … I am nothing short of appalled that it was thought that public funds could be expended upon such nonsense. And I tell you I am within a hair’s breadth of ordering that any costs incurred in respect of that application should be paid by you.” (paras. 6-7).
The appeal judges, in a very brief judgment (in which about three paragraphs are devoted to their determination of the case), held that the hearing constituted a serious procedural irregularity in that proper submissions were not permitted, the judge displayed a “closed mind” (para. 9) in respect of the application, and proper reasons were not provided for the dismissal of the application. The matter was remitted for rehearing.
There is hardly any need to argue that the attitude of the judge to S’s application is hugely problematic – the transcript of the hearing really does that on its own. Judge Dodds uses the comparison of “lunacy” to illustrate how outlandish he believes it is to follow-up on children’s wishes, simultaneously insulting both children and whomever he believes “lunatics” to be. Wishing to know the truth about one’s birth father is “nonsense” and even “green cheese” if you are a child, apparently. It is not worth public funds. And it is certainly not worth expending any of one’s Saturday!
The judgment not only failed to be child-friendly, it was not even human-friendly, and managed to express derision for every person involved, from S, to her parents (earlier in the hearing he had referred to the application to discharge the care order as “an affront” [para. 5]), to S’s representative. Yet ultimately this was S’s application, S’s life, S who had to be answered. The comparison of S’s request to that of a “lunatic” is clearly due to the fact that she is a child, and Judge Dodds did not see the need to justify denying her application on any other basis than this.
While the approach of Judge Dodds to the application before him is outrageous in its lack of respect for children, there is a more subtle difficulty with the response of the Appeal Court. Beyond a paragraph outlining why the hearing involved serious procedural irregularity, there are few other thoughts provided. It is stated that advocates will be left feeling “browbeaten” (para. 10) by such “deplor[able]” language, and also feeling that their clients have not had a fair hearing. The sole reference directly to S is that she “fortunately” [para. 10] was not present at the hearing.
Like myself, the appeal judges were presumably left with the impression that Judge Dodds’ words would speak for themselves in terms of the failings of this hearing. However there is an important point at play here which they had a duty to explicitly highlight, and yet they chose not to do so. S was shown disrespect, even contempt, for attempting to bring an application on the basis that she is a child and the application is therefore inherently unworthy. Yes, Judge Dodds’ language was “deplorable” and the solicitor received an abusive tirade. The Appeal Judges were right to highlight this. However the discrimination against S on the basis of nothing but childhood was by far the worst factor in this hearing, and this is not noted anywhere.
Article 12 of the UN Convention on the Right of the Child states that children have the right to be heard, and this should be at the forefront of any judgment concerning a child who is attempting – bravely, one could argue – to engage with the legal system, as we are all entitled to do. It should also have been noted that it is now considered good practice for “lunatics” to have some involvement in running the institutions which care for them (see e.g. the UN Convention on the Rights of Persons with Disabilities), just as we all should have a say in decisions made about us.
Aoife Daly is a lecturer at the School of Law and Social Justice at the University of Liverpool. She has published and lectured widely on the topic of children’s rights, in particularly the right of children to be heard, arguing strongly for a right of children to make choices in personal matters. Her book on this topic Autonomy Matters will be published by Ashgate later this year. She is currently leading a project for the Council of Europe to establish what aspects of their rights are most important to children.
You can find out more about Aoife’s research at http://www.liv.ac.uk/law/staff/aoife-daly/