Seen but not heard
It is widely accepted amongst the court and practitioners that proceedings should be child-centred and child focused. However, the fact that the parents have gone to court over the arrangements for their children means that there is a contentious and potentially acrimonious environment. Children will be sensitive to this so care must be taken to ensure they are safeguarded and further that the views the child is giving are truly their own.
The basis of children’s right to be heard comes from Article 12 of the United Nations Convention on the Rights of the Child (UNCRC).
“States parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law”
The UK ratified the UNCRC in December 1991. While it has not been specifically incorporated into the law of England and Wales, its concepts and provisions are present in domestic law such as the welfare checklist in the Children Act 1989, specifically, “the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding)”.
Those most affected by court orders are the children themselves so the importance of their views cannot be minimised.
Below we discuss some of the different ways children can currently participate in private children proceedings and consider whether more can be done.
Cafcass and Local Authority social workers
In private children proceedings, children are not automatically party to the proceedings. Therefore, traditionally, their wishes and feelings are communicated to the court via a Cafcass officer (a court appointed independent social worker).
The role of these professionals is to ascertain the child’s wishes and feelings and put forward what they deem, in their professional view, the best interests of the child. When parents are unable to agree arrangements for the children and if the court requires further evidence, the court will likely order a section 7 report to be undertaken by the Cafcass officer or local authority social worker (depending on whether there has been previous local authority involvement).
In order to compile the report, the child welfare professional will meet and speak with each parent and with the child. The child will be encouraged to participate in various activities that explore their feelings and wishes which the professional will relay in the report. At the conclusion of the report, the Cafcass officer sets out their recommendations for the arrangements for the child, specifying amongst other case specific requirements, with whom they should live and how much contact they will have with the non-resident parent.
The Child Meeting the Judge
In 2010, the Family Justice Council published guidance for judges meeting children during court proceedings. The guidance states that its purpose is to “encourage Judges to enable children to feel more involved and connected with proceedings in which important decisions are made in their lives”.
The purpose of the meeting is twofold. It ensures the child feels satisfied that they have expressed their wishes and feelings to the judge and it allows the judge to explain their role to the child and the process they will use to decide with whom the child will live with and spend time with.
This route will not be appropriate for all children and will entirely depend on the child’s age and maturity and whether they want to be able to speak to the Judge directly.
In 2014, the coalition government committed to ensure that children from the age of 10 in all family court hearings in England and Wales will have access to the judge to make their views and feelings known. Following a Freedom of Information request by the group Research Reform in October 2017 it was revealed that the policy was not implemented during that administration. This does not mean that no child has been given the opportunity to speak with the judge directly but there is scope for more work to be done to establish a consistent approach to judges meeting with children.
The Child giving Evidence
The court has the discretion to decide whether to direct a child to give evidence in family proceedings. The position is that a child should not be called to give evidence unless the situation demands it and the child him/herself is happy to give evidence.
In the case of Re W (Children) (Abuse – oral evidence) in 2010, it was held that there was no longer a presumption against children giving evidence in private law family cases. Following this, the Family Justice Council published Guidelines in Relation to Children Giving Evidence in Family Proceedings setting out the balancing exercise the court needs to take in assessing the possible advantages versus damage to the child’s welfare in being called.
The guidance considers alternatives to a child giving evidence in court and suggests questions being put to the child separately from the hearing. This means that the child will not be subject to cross-examination, which can be a daunting process, in particular for a child.
Importantly, the guidance sets out strict guidelines for examining children. It is essential that this guidance is followed so that children are cross-examined appropriately, so that the child is able to give the best evidence they can.
Joining Child as Party to the Proceedings
The Family Procedure Rules 2010 establishes the test for whether the child of private family law proceedings should be allowed to instruct their own solicitor. Rule 16(2) states that the court may make a child a party to proceedings if it is in the best interests of the child to do so. The Rules and Practice Directions are very clear that a child should only be joined as a party if the facts of the case demand it with guidance offered as to what circumstances might justify this decision.
When a child is made party to proceedings, a children’s guardian is appointed under Rule 16.4 of the Family Procedure Rules. The guardian will instruct a solicitor to represent the child and they will present the child’s case during proceedings.
What more can be done?
While this article has demonstrated that there are more methods for children to have their voice heard rather than simply through Cafcass or a social worker, the question remains as to how often the alternatives are used.
As a starting point, Cafcass or the social worker could ask children who are able to express their opinion (starting as a reasonable age of around 7 years-old) whether they would like to be involved in the court process and highlight the different ways they can.
If the overriding concern is exposing children to undue stress by giving evidence or becoming a party to the proceedings, perhaps the path of the least harm is for children to meet with the judges separately.
In addition to this, thought should be given to encouraging judges to write to the children directly when they have made decisions that go against the children’s wishes and feelings. By doing so, the affected child will understand why the judge made their decision which will assist the child in accepting it. A well-known example of this was the then Justice Peter Jackson who penned his judgment in the form of a letter to ‘Sam’ the child at the centre of proceedings between his parents.
Perhaps it is unrealistic to insist that all judges style their judgments as letters when they go against the child’s wishes. However, if the judge were to write a separate letter to the children to explain their justification this would probably go some way to helping children feel like their voices are truly heard and considered.
How can Hanne & Co help?
Our experienced family & divorce lawyers assist parents and other family members to reach agreement on arrangements for children following separation or when there has been a breakdown or disagreement about existing arrangements.
Contact the team today on +44 (0) 207 228 0017 if you would like to discuss any of the above in more detail.
