Child witnesses in the Immigration Tribunal: How can a child's wishes and feelings be expressed?
It is well established that the best interests of a child are a primary consideration for both the Secretary of State when deciding an application and a Judge of the First Tier Tribunal when deciding an appeal. However, it is often difficult to show what is in a child’s best interests and, more difficult still to allow a child an opportunity to express their own opinion as to what is in their best interests.
The immigration Tribunal does not, unlike courts in other jurisdictions, make specific provision for children to give evidence to the Tribunal in a way which is likely to put a child witness at ease and allow the best evidence to be obtained.
In criminal proceedings, for example, a child may give evidence by way of a pre-recorded videotaped interview conducted by a specially trained police officer under the Guidance ‘Achieving Best Evidence’. This allows the child to give evidence outside the intimidating environment of the courtroom. Such provisions may be less necessary in a Tribunal setting which is designed to be less intimidating than a Crown or Magistrates Court. However, where former criminal courts are partially adapted for use by the Tribunal, they often retain intimidating features such as the high bench. In any event, adults are frequently extremely nervous giving evidence before a Tribunal Judge; it might be thought that what is at stake is as relevant as the layout of the courtroom in causing anxiety.
In care proceedings in the Family Court, a Child’s Guardian is appointed as a matter of course specifically to represent the Child’s best interests. There is no similar provision in the Immigration Tribunal.
Possibly the best way for a mature young person to make their wishes and feelings known to the Tribunal is to give evidence themselves. However, sometimes Judges take the view that the experience of having to give evidence would be harmful to the child and a Judge can refuse to hear live evidence from a Child if she does take this view.
An alternative option, which will usually be best in the case of younger children, may be to obtain the report of an independent social worker. An independent social worker should interview the child and his or her parents, usually in their own home and will often liaise with the child’s school. They will then be able to assess the wishes and feelings of the child and also provide an opinion as to what is in the best interests of the child. This is similar to an expert report provided in other contexts and the weight given to it by a Judge will depend much on the experience and qualifications of the independent social worker and the quality of her report. In particular it will be considered whether any conclusions drawn are properly justified. In any event, a Judge would have to give reasons for disregarding the opinion of someone with specific expertise such as in independent social worker.
However independent social workers can be very expensive. As Appeal fees have now increased (to an extent which may be prohibitive for a family in which each member has to lodge an appeal) and many appellants will not qualify for legal aid but will wish to be represented, an independent social worker’s report is likely to be out of the reach of many.
It is therefore often necessary to consider other ways in which a child’s view can be expressed. Older children may be able to write letters, younger children may be able to express their views through drawings.
In view of the primary importance of establishing the best interests of any child affected by an appeal, it is very important that a way is found to allow that child to express his wishes and feelings and view about what is in his interest. Letters and drawings by children should not be side lined in appeal hearings and children who are mature enough and wish to give evidence should be encouraged to do so where the experience would not be harmful to them.
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