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 letter can be read in full here: http://www.bailii.org/ew/cases/EWFC/HCJ/2017/48.html.

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.

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