To discuss, in strict confidence, any of the issues raised in this article, please contact the author, Sarah Jackson at firstname.lastname@example.org.
In a speech on 24th July 2014, Family Justice Minister, Simon Hughes MP, announced that from the age of 10 all children involved in disputes in the family court in England and Wales will have access to the judge to make clear their views and feelings. And if a child younger than 10 is able to express themselves and wishes to do so, then they too should have that opportunity.
The government will also work with the mediation sector so that children have appropriate access to mediators as well in cases that affect them.
In a press release, Simon Hughes said:
“Children and young people must by law have their views heard before decisions are made about their future, and where decisions are made that will impact them. At the moment, it is still too often that their views are not heard.”
“Our commitment to giving children the chance to speak to the judge and make clear their views means children will not only be seen in family courts but they will have their own voice heard. This will put them firmly at the heart of the Family Justice System.”
Ascertaining a child’s wishes and feelings
It is already the law that children must have their views heard before decisions are made about their future. The court must take into account the “ascertainable wishes and feelings” of the child, which are usually obtained by an officer from the Children and Family Court Advisory and Support Service (CAFCASS) or by a social worker who must report to the judge before a court order is made.
The CAFCASS officer should also discuss with the child whether they wish to meet with the judge and, if so, convey this to the judge. However, any such meeting is not for the purpose of gathering evidence as to the child’s wishes, but purely to enable the child to gain some understanding of the court process – see Guidelines for Judges Meeting Children who are subject to Family Proceedings.
The government’s commitment to ensuring children are heard in family proceedings is almost universally supported. However, changing the rules so that children are able to make their wishes and feelings known directly to the judge is more controversial.
Resolution has voiced its support for the Government’s proposal:
“We welcome the Minister’s commitment to giving children a greater voice in the family justice system ….. our members are committed to ensuring that children come first. So anything the government can do to support this is to be welcomed.”
However, critics say that giving children direct access to the judge will place them firmly in the middle of a loyalty conflict from which they should be protected. They say it will put too much power in the hands of the child and make them at increased risk of parental pressure, manipulation and alienation.
There are also the very real practical difficulties of ensuring that judges (and mediators) obtain the relevant skills and training to consult children directly and that sufficient court time is made available (when courts are already stretched given the rise in litigants in person). There is also the issue of judicial impartiality.
Some professionals believe that children should be excluded from the court process altogether – removing the responsibility of adult decisions from a child’s shoulders and a very real risk of pressure or manipulation by one or both parents. However there is a large body of research that points to the benefit of allowing children to participate within the process and questions not whether children should be involved, but how.
Children giving oral evidence
In my practice before 2010, if asked by a client whether their child would have to give evidence in family proceedings, my answer was always “no” as the presumption in family law proceedings was that it was undesirable for a child to give oral evidence and doing so was an extremely rare event.
In 2010, the presumption against children giving evidence was removed by the Supreme Court in Re W (Children)  UKSC 12. This led to the Family Justice Council producing its Guidelines in relation to children giving evidence in family proceedings.
Despite this, children seldom give evidence in court.
Indeed, the view that children should not give evidence as a matter, of course, is clearly stated by Lord Justice Black in the later Court of Appeal case of Re B (Child Evidence)  EWCA Civ 1015.
In this case, an order had been made by a Circuit Judge for a CAFCASS officer to explore the appropriateness of the giving of oral evidence by a child of a family. The father was appealing the order. The Court of Appeal concluded that the Circuit Judge had correctly followed the principles set out by the Supreme Court in Re W and the subsequent Guidelines and Ld Justice Black said of the decision to dismiss the father’s appeal:
“I would not expect our … decision to open the floodgates, leading to a widespread practice of calling children as witnesses in cases such as this one. The Supreme Court did not consider that their decision would lead to children routinely giving evidence, predicting that the outcome of the court’s balancing exercise, if it was called upon to adjudicate upon such matters, would be the conclusion that the additional benefits in calling the child would not outweigh the additional harm it would cause him or her. I am sure that the natural sensitivity and caution of the family courts … can be relied upon to ensure that matters are approached in a way which properly safeguards all the interests involved.”
And yet, the government has now announced its intention to make it the norm that children be given the chance to make their views clear to a judge, i.e. to give evidence, in every case.
Advice to parents
If, when you separate, you are able to reach an agreement as to the arrangements for your children whether between yourselves, via solicitors or at mediation, there will be no need for your children to be formally involved in the decision-making process (although you may choose to involve them in the mediation process if you wish). It is important, however, that you manage your separation in the best interests of your children and the Resolution booklet entitled “Separation and Divorce – Helping parents to help children” provides some useful information about how to manage your separation in a child-centred way. It advises for example that older children need to be consulted about decisions which affect their lives.
Even if you, as parents, are able to agree future arrangements for your children between you, you may find that you or your children have a hard time dealing with the changes separation brings. Many parents and children in this position find that professional support such as family therapy is invaluable in coping with the transition, so you may wish to explore family therapy as an option for you and your children.
If, as parents, you are not able to reach an agreement about arrangements for your children and you need to go to court, the current situation is that your children will be asked their wishes and feelings by a CAFCASS officer and will be given the opportunity to meet the judge if they wish to do so.
In due course, it appears that children will be able to give evidence in proceedings if they wish to and parents may be directed to explore as an option family mediation with their children being directly consulted by the mediator.
Image by Richard Leeming under a Creative Commons licence