The voice of the child in court proceedings - Family Law Partners

The voice of the child in court proceedings

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We are often faced with questions from clients in the midst of court proceedings relating to their children about how their children’s views will be accounted for and how they can help them understand the decisions being made about them. There has recently been much debate about the extent to which children should be involved in the decision making process. So, where do we currently stand in relation to this, and children speaking in court proceedings?

It is of course ingrained in the law, within the welfare checklist, that a child’s ascertainable wishes and feelings (in light of their age and understanding) is one of the factors a court must have regard to. However, concerns have been raised about how this works in practice.

The Family Justice Young People’s Board (FJYPB) is a group of over 40 children aged between 8 and 25 years old who live across England. All members have either had direct experience of the family justice system or have an interest in children’s rights and the family courts. They have raised concerns that children have been pushed and pulled through the family justice system with little or no say on what happens to them. As a result the government has made a commitment that all children from the age of 10 involved in family court hearings will have access to judges to make their views and feelings known. The age of 10 has been used to be consistent with other existing policy and practice, for example it is the age of criminal responsibility for young people in England and Wales.

Resolution has long campaigned to make divorce and separation more child-focused, and have published a Parenting Charter calling for separating parents to prioritise their children’s rights to information and influence over decisions that affect their lives.

The Family Procedure Rules, Practice Direction 12B, provides that children should be at the centre of all decision-making. The Practice Direction sets out the ways in which a child’s view may be communicated to the judge in a number of ways including:

  1. By way of a Cafcass officer providing a report;
  2. By the child to writing a letter to the court;
  3. In limited circumstances by the child being a party to the proceedings in which case a Guardian is appointed to represent the best interests of the child and they will in turn instruct a solicitor for the child to convey the child’s wishes to the judge; and
  4. By the judge meeting with the child, in accordance with approved Guidance. The judge is not permitted to take any evidence from the child, the purpose is not so that the judge can independently ascertain their wishes and feelings, the aim is to ensure that the child fully understands the process and feels they are participating in it.

Children speaking in court proceedings

There is no automatic right for a child to speak at court, although this can happen. Given the inevitable pressure of speaking in court in front of parents, the other methods above are usually much better ways of assessing their views.

Guidelines are in place to govern the procedure for children giving evidence.  The guidelines say that children should only give evidence if it will assist in achieving a fair trial although this has to be balanced against the possible damage which could be caused to the child by having to do so. The child’s willingness to do so as well as the child’s maturity and understanding are crucial when making the decision about whether the child should give evidence.

This commitment to ensuring children’s views are considered is not just in relation to court proceedings. The Family Mediation Council’s ‘Code of Practice’ now requires that all children aged 10 and above should be offered the opportunity to have their voices heard directly during Mediation, if they wish. Collaborative practitioners and those involved in Arbitration are also likely to now be more aware of taking steps to ensure more child inclusion within the decision making process.

However, can the age at which children are able to express a view be conclusively defined? Children of the same age vary considerably in their ability to formulate clear views and is likely to be affected by their family situation and their relationship with their parents. Surely an initial and continuing assessment of each individual child is vital in helping them to express their views, if they want to, to ensure the process is not damaging to them?

There is concern that by involving children more in the decision making process it increases the risk that they will be pressured by their parents to say what they want them to and put in children in the position of having to ‘take sides’.

Whilst a lot of the focus is on the ‘voice’ of the child being heard, what is perhaps more important is that the child is talked to in an appropriate way about the process and is supported and shielded from the conflict and confrontation that so often arises.

Whilst the headlines taken out of context may conjure up worrying visions on children turning up at court and being cross examined by their parents lawyers about, for example who they want to live with, the reality is in practice it is likely to be very different, with the focus being more on children feeling they have had a chance to express their views about the decisions being made about their lives. It is also worth remembering that the wishes and feelings of a child are just one of the factors a court must have regard to.

A good example of how a more child inclusive approach can work in practice is in the recent High Court case where Mr Justice Peter Jackson set out his judgment in the form of a letter to the child concerned. It is by no means an easy read, but Mr Justice Jackson himself confirmed that his decision was received by the child with ‘apparent equanimity’.

The benefit as I see it to this shift to more child inclusive process, if it is carefully and sensitively handled, is the potential change it could bring about to family dispute resolution culture as a whole, ensuring that the focus is always on the child in question.

This article was first published on the Law Society’s Family Section on 27 November 2017.

21 responses on “The voice of the child in court proceedings

  1. My 10 year old child, is refusing to go to contact with his father…
    F refuses to give medication to my child. ( asthma spray )
    Do I have right to stop contact?

    1. Generally speaking it is thought to be a child’s best interest to have a relationship with both parents. It is important though that the relationship is managed in a way that ensures the child is not put at risk. When considering whether a child should spend time with a parent the law states that you have to consider the following:

      ? The ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
      ? The child?s physical, emotional and educational needs;
      ? The likely effect on the child of any change in circumstances;
      ? The child?s age, sex, background and any other relevant characteristics;
      ? Any harm which the child has suffered or is at risk of suffering;
      ? How capable each of the parents, and any other relevant person, is of meeting the child?s needs.

      Legal advice on your specific circumstances is beyond the scope of a blog post. You should seek legal advice from a lawyer. You can contact our specialist team to arrange a consultation by calling 01273 646900.

  2. Hi I have court on Friday 24th/5/19
    Should be my final court,in getting my son bk home after he’s dad took both children aged 7 & 15 then refused to bring bk 7 year old telling my older son to tell me it’s now been the hardest 9mths of my life I’m not getting any support,the social worker came 200 miles to my home where I thought it went well then she said for the Wednesday she wanted me & my partner to go & see Jake which made us both so happy to be called next day to say this isn’t possible now the next day I get a call telling me I don’t think this is what u want to here but we propose for Jake to stay with his dad & comes to me on holidays where he can then interact with my partner the one that they have made the allegations towards.
    My little boy wants to come home but social are saying because of the memories Jake has of Chris he cannot come back even when Chris isn’t here ??? I’m so confused I have done nothing like she said all this will do is mess my little boys head up.
    PLEASE HELP SOMEONE IM DESPERATE

    1. Hi Natalie

      I hope it went well.Just another mother sharing my support to you

  3. My 11 year old daughter wants to attend our final court hearing to request that no order be made as she hasn?t seen her father for 2mths as they have fallen out. Would this be frowned on bringing her to court to let her have her say in her own words?

    1. There are specific court rules in place in order to account for how the voice of a child should be heard within court proceedings. The specific details of your case would need to be considered in order to advise as to how best your daughter’s wishes and feelings can be heard within the proceedings. I strongly advise you to seek legal advice. Our specialist lawyers would be pleased to assist you. Please contact our team to arrange a consultation by calling 01273 646900.

  4. My child is now 9 years old and he went to stay with his father for a 3-week vacation in Europe when he was 8 years old. The father decided not to return the child to me. We have been to court in Europe 8 times over the last 18 months already. The court says that the child wishes to stay in Europe. When asked why he wants to stay in Europe, he said that he wants to see the carnival. Is it legal to ask a child such a young child where he wants to live?

    I am not allowed to even spend time with my child in Europe. Every time I need to see my child I have had to go to court. The father is trying to completely isolate me from my child.

    Every time I go to the court, the court ask my child repeated “Do you want to see your mother?” my child says yes. However, on the last visit, I was told that my child does not want to see me. I was not even given an opportunity to see him. Is this legal?

    He cried that he does not want to go to the court anymore. There is another court hearing in July and again the court has decided that my child must appear before the court alone. Can the court force the child to appear before the court again and again?

    My child is 9 years old. is there a law that says that the child cannot decide for himself until he is 10 years old. My child is still talking about dinosaurs and his toy cars. He does not really understand that he is being manipulated by his father. What can be done about this?

    1. From your post it sounds as though the proceedings are in a court outside of England and Wales, in which case the law of that court’s country will apply, not the law in England and Wales. We are only available to advise on the law in England and Wales. If you want to arrange a consultation with one of our specialists that deals with cases with an international element for advice on whether the law in England and Wales would apply in your case then please contact us on 01273 646900.

  5. I would like to know if my child could write to the judge to express their feelings ahead of the preliminary hearing. CAFCASS don’t wish to speak with my child at present, and they may not be spoken too at all. I feel its unfair that his wishes may not be accounted for. They’re 13 years old.

    1. Thank you for your comment. Usually at the outset of the proceedings it is thought best to try and shelter a child from getting involved directly. At the preliminary hearing though a judge will consider matters and give directions as to how best to account for the child’s wishes and feelings (in light of their age and level of understanding) this can be done in one of the ways set out in the blog post. Specific advice on your circumstances is beyond the scope of a blog post comment, you can contact us to arrange an initial consultation (01273 646900) or if you are not based in Sussex, Hampshire or London and are looking to meet with a lawyer local to you can find details online at http://www.resolution.org.uk/findamember/. In some circumstances child inclusive mediation can be an alternative option to court proceedings, details of child inclusive mediators can be found online at https://www.familymediationcouncil.org.uk/.

  6. Hi, just curious to know how old a child in care has to be to say they will wanna come home

    1. There isn’t a specific age, it will depend on the individual child and their level of understanding and maturity. In care cases a Children’s Guardian is likely to be appointed and will assess the weight that should be given to a child’s wishes and feelings. We do not deal with care cases here at Family Law Partners, if you are looking for legal advice in relation to your case you can find details of solicitors who specialise in this area of law on The Law Society website.

  7. I have 3 children, aged 12, 10 and 4. I have split with my ex wife for 2 years and are going through a divorce. I have been dating someone else for over a year. My children know about her, however my ex has told the children that I had an affair with her, and she?s the reason for the marriage ending. The children now want to side with their mother and have said they never want to see my current girlfriend. As you can imagine this makes my life very difficult , especially as my new girlfriend eventually wants a child of her own. If I was to go to court, can my children say they don?t want anything to do with my new life? It is only because of the ex, my current girlfriend is a school teacher, and very respectable. They have no negatives against her other than what my ex has poisoned them with. How can I fix this?

    1. If you were to take this matter to court the children’s wishes and feelings would be taken into account in light of their age and understanding. It is likely that CAFCASS (the Children and Family Court Advisory and Support Service) would be ordered to assess matters and report to the court. The introduction of a new partner can often cause difficulties for separated parents and their children. In order to try and fix the current difficulties a specialist family consultant and/or child inclusive mediator might be able to help. You can find details of such specialists online at Sussex Family Solutions or via the Family Mediation Council website here.

  8. My son is 13 and has lived with me for 2.5 years as his mother and him have a broken relationship.

    She is now threatening court action as she wants to see him more, not taking in to account what he wants.

    Where does my son stand in having his voice heard?

    1. If an application is made to court your son’s wishes and feelings (in light of his age and level of understanding) will be one of the factors a court must have regard to when making decisions. CAFCASS are likely to be directed by the court to obtain your son’s wishes and feelings. Another way of ensuring your son’s voice is heard is through mediation using a child inclusive mediator. You can find out more information about this, together with the details of how to find a child inclusive mediator, on our previous blog post here: https://www.familylawpartners.co.uk/blog/child-inclusive-mediation/?mh_keyword=%2Bfamily%20%2Blaw%20%2Bpartners.

  9. Please can you advise?
    After being assessed by IDVA as high risk, with our case heard at MARAC, I fled domestic abuse with the children, as several health professionals informed me social services would remove the children if I didn’t take them to safety. We fled with police protection, so that the perpetrator would not know our location. The children were very relieved that we fled and were safe and much happier.
    The children’s father took me to family court, which has enabled him to find out the area in which we fled to. I explained the situation of domestic abuse. The perpetrator denied it, and a fact finding was held. The judgement minimised the abuse, and dismissed all the professional evidence of domestic abuse (police reports, IDVA/MARAC letters, GP notes, school teacher notes etc). The perpetrator falsely accused me of parental alienation, which the court are taking more seriously than the domestic abuse!
    The children remember how their father treated them and have spoken to the court professionals involved about their fears. They have stated that they do not want to see their father. The eldest is secondary school age. Their voices are not being heard or taken seriously, and the court and professionals involved are all aiming to get the children in contact with their father. The children are distressed that the professionals are trying to make them see their father.
    How old does a child have to be before they are listened to and respected?
    If children’s voices are not listened to in family court, then children are learning that their voices are not important, and that they don’t have a right to be safe and free from abuse – it is appalling that in this day and age, with the knowledge we all have of abuse and the detrimental affects on children, that family courts are still willing to put perpetrator’s contact rights before the the rights of children to be safe and free from harm.
    It is very worrying, and has really upset and disrupted the children. They thought they were safe.
    Is there any advice you can give me please?

    1. We are really sorry to hear about your situation. Advice in relation to your circumstances is beyond the scope of a blog post comment. If you would like to book a consultation with one of our specialist lawyers please call 01273 646900. Alternatively NYAS maybe able to help: https://www.nyas.net/.

  10. I’m currently going through a court case as my ex wants more access to my son, he is 7 & a half. I’ve never stopped my son from seeing his father but because of the way my ex has been with my son my son does not want to be with him. Cafcass were not interested in what my sons feelings were & neither was the court. My ex is blaming me & trying to get my son to go to counselling rather than admit his own findings. When will my son be able to get his feelings taken into consideration? My son gets very upset when he has to go to his fathers

    1. We are sorry to hear about what your son is going through. Where there are court proceedings CAFCASS should be able to assist, as they are there to represent children in family court cases. Alternatively Child Inclusive Mediation and/or a Family Consultant maybe able to help by working with you, your son and your son’s father to find a way forward that is in your son’s best interests and ensures your son’s voice is heard. You can find details of Child Inclusive Mediators and Family Consultants on the Resolution website https://resolution.org.uk/find-a-law-professional/.

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