The Child’s Voice at Court

31 Jul

Parents involved in private law disputes (i.e. disputes over where your child lives for the most part and how much contact the child should have with the parent he does not live with) often ask me how old the child has to be before their feelings are taken into account by the Judge.

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Torn family

Parents involved in private law disputes (i.e. disputes over where your child lives for the most part and how much contact the child should have with the parent he does not live with) often ask me how old the child has to be before their feelings are taken into account by the Judge. There is no simple answer: generally the older the child the more weight is given to his feelings, but in some cases the Judge may take the view having listened to all the evidence in the case that the child’s views should not be decisive.

This can be due to various factors, for example concern that the child has been unduly influenced, concern that the child does not have insight into the level of risk he may be facing or the child may be deemed not to be sufficiently mature to come to a decision himself. Teenage children are unlikely to be persuaded that they should live with a parent they do not want to live with or to see a parent they do not wish to see, regardless of any Court order made.

It is a very sad reality that children embroiled in parental disputes will frequently identify with the parent they live with, seeing the anger/sadness/frustration that the parent experiences in the wake of a breakdown of a relationship or divorce, to the extent that they do not wish to see the other parent.

The child may not wish to see the parent because they blame them for causing unhappiness to the other parent, they may not wish to upset the parent they live with by expressing a view that they wish to see the parent regardless or they may see the other parent and feel guilty about enjoying time with them because they are leaving the other parent alone.

There is no easy answer for parents with a child in that situation other than to encourage the parents to work together for the sake of the child to encourage the child to have a relationship with both parents who love him regardless of how they may feel about each other. In some cases mediation can be extremely helpful. The role of the Court in such disputes is to make an order in the best interests of the child, promoting a relationship with each parent.

For the reasons set out above, the child at the heart of the dispute may be conflicted in terms of what he wants, and the Court as neutral party is better placed to identify what is in that child’s best interests.

Returning to the child’s view and the question of when will the Judge listen to what the child thinks, the government, via its Justice Minister Simon Hughes, made a commitment last week, following calls from the young people’s representative group, the Family Justice Young People’s Board, that from the age of 10, children involved in all family court hearings in England and Wales will be able to speak to a judge to make their views and feelings known.

Mr Hughes set out the following when addressing the group: children and young people have a legal right to be heard before decisions are made about their own future and where decisions are being made that will impact on them; often that legal right is not being exercised or it is interpreted so that others (presumably he is referring to CAFCASS reports, social workers and Children’s Guardians) can make a presumption about a child’s view, often for the best of intentions and acting in their interests, but with the result that the child does not feel their view has been listened to.

He stated that he intends that where there are disputes about children in court, or through an alternative form of resolving disputes such as mediation, children and young people aged 10 or over will be given the chance in the future to make clear what their views are either in person, or if preferred in another way. He justified the age of 10, saying it was appropriate as being the age of criminal responsibility for young people in England and Wales.

He also said that children younger than 10 who wish to and are able to contribute should also be able to have a say in the future of their families.

Whilst this makes a good sound bite, I am not entirely sure what the practical impact of this will be on court cases. Currently if CAFCASS is involved in a private law case and asked to carry out a report they will speak to the child and record their views within the body of their report.

The Judge reads the report and is thereby made aware of the child’s views; quite how meeting the Judge and telling her his views in person will make the child’s views any more audible is unclear. In public law proceedings (where the Local Authority is involved with the family and in making plans for the child’s future placement) the child is seen by both a social worker and a Children’s Guardian and their views recorded in reports. In some cases further experts are instructed and speak further to the children, and where a child is deemed “competent”, i.e. old enough to know his or her own mind and it is not at one with the Children’s Guardian who would usually represent the child, then that child is provided with their own solicitor funded by legal aid.

It follows therefore in my mind that a child within care proceedings already has their views clearly put before the Court and would not derive any further benefit by talking directly to the Judge.  Certainly in those cases where no report is put before the Court by a third party (e.g. CAFCASS officer, social worker or Children’s Guardian) then giving the opportunity to the child to speak directly to the Judge will ensure that the child’s view is heard. However, the practicalities of bring the child to Court and arranging a time for him to speak to the Judge are yet to be outlined.

The pressures on the family judiciary are intense, particularly since the removal of legal aid from private law proceedings which has spawned a rise in the number of litigants in person (see earlier blog entry, 19th May 2014), so it seems unlikely that the District Judges are going to conduct home visits to speak to children, so that leaves meeting them at work, i.e. in Court. In the new stream-lined private law proceedings, it is not clear at what point the child would be invited to speak to the Judge and how much time in a busy list a Judge will be able to afford to speaking to them.

Finally, as a child care lawyer, I feel slightly uncomfortable at this new guidance as I fear that parents may encourage their child to demand to “speak to the Judge” so that the child can get their agenda across and the child is dragged into a court environment to witness the adversarial conflict between parents. Whilst Mr Hughes doubtless has good intentions, I do not think that his announcement will make a significant change to the way that disputes involving children are resolved; the paramount consideration of the Court is the child’s welfare, not to pander to popular pressure to be seen to listen to views that are already audible within proceedings.

He does not say that from the age of ten children’s wishes and views will be adopted by the Court as dictating the outcome of the case, merely that the children can vocalise their views.

 Is it not obvious that there is a real risk that the children in the future will be left feeling they haven’t been listened to when a Judge quite properly proceeds to make a decision about their future taking into account their best interests, which may or may not accord with what that child wants? So no change from what the Family Justice Young People’s Board complained about in the first place; rhetoric not reality.

Zosia Keniston

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