The place of children in our family justice system is rather complicated. There’s a constant tension between giving children enough of a say in decisions about their future to ensure that they feel heard and respected, while ensuring that they do not bear, or feel they bear, the responsibility of any specific outcome in a dispute. In family law, as children grow more mature their views about what should happen are given greater weight, but remain only one factor in the court’s assessment of what is in the child’s best interests. This means that even where the child is a teenager, the court takes a broad view of all the relevant circumstances and may override the child’s wishes and feelings if it feels that the child’s welfare will be better promoted by a different course of action.
So it was with great interest that the case of P -S (Children) caught our eye. The case concerns a 15 year old boy who wants to return to live with his mother, from whom he had been removed due to concerns that her parenting left him and his brother at risk of significant harm through neglect. He had a Guardian (a court social worker appointed to safeguard his interests throughout the court process) who retained a solicitor, and the child himself had his own representation by way of a solicitor and barrister. But he wanted to give his own evidence – literally to have his own voice heard in the court – so that the court could understand how strongly he desired to live with his mother. The Court of Appeal had to decide whether the initial trial judge, who had decided that he should not be permitted to give evidence and had ordered that he should not be returned to his mother, had made a mistake.
The law is quite clear: children’s views should be heard. Article 12 of the UN Convention on the Rights of the Child says:
“1. 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.
2. 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.”
In addition, domestic law – the Children Act 1989 – requires that the child’s wishes and feelings should be ascertained in the light of his age and understanding, as part of the exercise of determining what the child’s welfare requires (for more details about what welfare is, see our previous blog here). But does this extend to a right to give evidence?
The court held that the child had no right to give evidence in proceedings about his future. Because there were other avenues by which his wishes and feelings could be ascertained, the court would learn nothing new from the child giving evidence and it would be detrimental to his welfare to allow him to speak in court because of the specific and very difficult circumstances of the case.
So it is clear that a child caught up in court proceedings has no independent right for his own voice to be heard as long as there are clear channels by which the court can be informed of his views, wishes and feelings. But what are those channels? In private law children proceedings, which are disputes between parents about the children’s arrangements after divorce or separation, a Guardian is not usually necessary and the children’s interests are safeguarded instead by a CAFCASS officer. This is a social worker who will talk to both of the parents, and the child or children if they are old enough, and will write a report for the court on the children’s wishes and feelings, and in some cases make recommendations about the children’s future arrangements based on what they have seen or heard.
In recent years, there has been an increase in the practice of judges seeing children, and indeed within strict boundaries they are encouraged to do so; this is not, however, so that the judge can independently ascertain their wishes and feelings, but rather to ensure that the children fully understand the process and can feel they are participating in it.
Mediation also promotes consideration of what children’s wishes and feelings might be. Where children’s futures are being discussed, it is always the mediator’s aim to bring the children into the room in a metaphorical sense, by encouraging the parents to discuss with each other what children have said or might be feeling. Also, direct consultation with children is possible within the mediation process so that the mediator can work with the children to let their parents know what they want to happen, or what they need to have understood. This is highly specialised work requiring a particular qualification, and is not appropriate in all cases, but can be transformative in appropriate circumstances.
If you’ve any questions or comments on how we as lawyers and mediators work to ensure that children’s voices are heard in the family justice process, please leave us a comment below, or you can call Adam, Gail, Simon or Sue on 01223 443333.