Often the most significant decision for a child can be made in family proceedings, including where they should live, how much time should they spend with each parent and where they should go to school if there is a dispute between the parents.
Children will often have their own views, wishes and feelings on matters that are important to them and modern family law recognises that children are not just a subject to proceedings when their parents disagree. Ensuring that children’s voices are heard is therefore important when considering what is their best interests. This principle is rooted in both domestic and international law.
The Law
United Nations Convention on the Rights of the Child (UNCRC)
The UNCRC is a legal agreement, signed by countries such as the UK, which provides rights to children.
Article 12 provides that any child capable of forming their own opinions has the right to express them freely on matters affecting them. Those views should be given appropriate weight, taking into account the child’s age and level of maturity. It also highlights that the child must be given the opportunity to be heard in any judicial or administrative proceedings affecting them, either directly or through a representative or appropriate body, in accordance with national procedural rules.
The Family Procedure Rules (FPR)
The FPR set out the practice and procedure for family proceedings in England and Wales.
FPR 12B incorporates Article 12 and provides that children should feel their needs, wishes and feelings have been considered in arrangements made for them. It also states that children should be involved in decisions affecting them to the extent that it is appropriate for their age and level of understanding.
This is relevant whether parents make arrangements between themselves, outside of court or within court proceedings.
The FPR encourage parents to consider the child’s perspective and ensure decisions are made in their best interests.
Welfare Principle
In any proceedings concerning children, the court’s paramount consideration is the child’s welfare. The child’s wishes and feelings are an important factor that the court considers when determining what arrangements are in the best interests of the child. The court will also consider the capability of each parent, any risk of harm to the child, the child’s age, background and characteristics, their physical, emotional and education needs and the likely effect of any changes in their circumstances.
Why hearing the child’s voice matters
Listening to children promotes fairness and acknowledges that they understand their own experiences. Children who feel heard are often more likely to accept decisions made, even where the outcome is not what they had hoped for.
Hearing a child’s voice does not mean that they should be responsible for making the decision. Children should be able to share their views without feeling pressured to choose between parents or carry responsibility for the outcome.
How are children’s voices heard
When matters end up in court, children are not automatically a part of the proceedings and they usually do not speak directly to the Judge. There are a number of ways in which a child’s voice can be communicated. These are as follows:-
- Through a Cafcass officer
- Through the Local Authority
- Through a Court appointed Guardian
- Meeting the Judge
- A letter to the Court
- Direct representation
- Child inclusive mediation
Cafcass
A Cafcass officer is a Family Court Adviser who can be directed by the court to provide a welfare report. The report will set out the child’s wishes and feelings alongside other welfare factors. If appropriate the Cafcass officer will speak to child. They will usually:-
- Meet with the child in a suitable neutral environment such as the child’s school or the Cafcass office.
- Explain to the child the court process in an appropriate way depending on the child’s age and maturity.
- Explore with the child their views and experiences in a child focused way without any pressure.
- Distinguish any influences from others.
Local Authority
If the Local Authority is already involved they will be directed to prepare a welfare report in place of Cafcass.
Children’s Guardian
In complex cases, the court may appoint a guardian to represent the child, although this only happens in limited circumstances. The guardian acts in the child’s interests and works with a solicitor appointed on the child’s behalf. Their role is to keep the child’s welfare central throughout the proceedings and make recommendations to the court.
Meeting the Judge
In rare circumstances, usually where proceedings involve older children, the Judge may meet with the child to ascertain their view. These meetings are not intended to gather evidence or for the child to make a determination of the outcome but the purpose is to assist in helping the child understand the process and where appropriate share any views they wish the Judge to consider. Any meetings are carefully managed.
Letter
In some situations the child may be encouraged to write a letter to the court expressing their views.
Direct Representation
Children who are older and demonstrate a sufficient understanding and level of maturity may in certain situations instruct their own solicitor and participate directly in proceedings. This only happens in limited circumstances.
Child inclusive mediation
In reality the above options provide limited opportunities for children’s voices to be heard. The most effective way for a child’s voice to be heard is through child inclusive mediation. Child inclusive mediation provides children with a safe space to share their feelings to an independent mediator. The child will speak to the mediator in confidence who then with the agreement of the child will share their views with the parents to help them agree on the best arrangements for their child. The child will not make the decision, the parents will still be responsible for reaching an agreement, or, where there are court proceedings, the Judge will make a decision, but this process can help children to feel like they have had a voice in the process and been somewhat involved.
Sometimes it can be difficult for children who feel as though they are in the middle of a conflict to express their feelings. Taking part in child inclusive mediation allows the child some control over what feelings are shared with parents and the mediator can help them with sharing their feelings.
How does the child’s voice impact proceedings?
It is commonly misconstrued that when children reach a particular age they can make their own decisions. There is no fixed age at which this happens and will depend on the individual child. The weight given to a child’s wishes depends on the following:
- Their age
- Their emotional maturity
- Their understanding
- Whether their views are independent
- Their reasons
As children get older, it is considered, that they can “think with their feet” and their views are generally afforded greater weight.
Balancing participation of children and protecting children from conflict
The aim of dealing with disagreements relating to children, whether through mediation or court, is to minimise any burden placed on a child. Children should not be asked to choose between their parents, or become involved in adult disputes, but they should still have a way to voice their wishes.
Parents should:
- Provide reassurance to the child
- Avoid discussing the court proceedings with the child or in the child’s presence
- Refrain from criticising the other parent directly to the child or in the child’s presence
- Support the child’s relationship with the other parent (where it is safe to do so)
Children should feel as though there is a safe place for them to express their views without the fear that they may upset either parent.
Summary
The objective of a child having a voice is not to transfer responsibility for the decision making, but to ensure that when important decisions are being made which affect their life, they are able to provide their own views. Ensuring that a child’s voice is listened to in an age appropriate manner, helps to achieve an outcome that genuinely reflects the child’s wishes and their best interests.
How can Pinney Talfourd help
Navigating child arrangements during a separation can be incredibly challenging, but you do not have to do it alone. Contact our Family team today on 0800 011 1195 to discuss your options or book a free 45-minute consultation.
More information
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