In an ideal world, neither children nor their parents would set foot in a courtroom. They would grow up without the involvement of judges, childcare professionals, experts and lawyers. However sadly, for many families the involvement of family law professionals in the lives of the children is an all too present reality. As the chief executive of Cafcass (see here for our explanation of the role of Cafcass) Anthony Douglas put it recently: “home life should tick over in the background for children, allowing them to grow up in the outside world without always being worried. For too many children … family life is in the foreground, because it is so difficult and preoccupying.”
There has been a steady development within family law to allow children a voice within disputes which affect where, with whom and how they live. On the one hand this is a hugely positive development – children are given the opportunity to have their opinions heard by the judge dealing with their case, and to put forward their own view, which may differ from the polarised positions of the adults in the case. However, the flip side may well be to make the children feel like they are under even more pressure, with their home life under scrutiny from outsiders.
There are various professionals who might become involved with children. Firstly, there is the staff of Cafcass, whose officers are known as Family Court Advisers. When a Judge feels that to properly decide a dispute, he or she needs a report about what is in the children’s best interests or their wishes and feelings, the Family Court Adviser will meet with the children (as well as their parents and any other relevant adults) in order to form an opinion on what would be the best outcome for the children. The Officer’s report will often be the only place where children can get their opinions across to an independent adult, so it can be of fundamental importance.
In some cases, other experts will speak to or represent the interests of the children. Where the court feels the child needs more of a voice in the court process to ensure that his or her interests are fully looked after, a Guardian may be appointed to look after the child’s interests within the legal proceedings. A Guardian will represent the child, or children, and may instruct lawyers to represent the child separately from those representing the adults. In very unusual cases, children may be permitted to instruct their own solicitors, to argue their case.
These days, it is not uncommon for judges to meet the children in a complex case, although it happens less often in local courts than in the larger family centres. This is done in a controlled setting, and is a chance for the judge to get to know the children a little, and for them to meet the person who will make or has made decisions that will affect them.
Apart from legal representation, some cases require the involvement of experts, such as psychologists, paediatricians or independent social workers, all of whom will, in some way, be directly involved with the children and affect decision making with regards to their future.
The impact that any of these adults will have on the children can be profound. We are all familiar (or ought to be) with the pressure and responsibility children feel when their parents separate. Add an extra ingredient to the mix in the form of an expert or court adviser, and the situation can get harder for the children. However, if managed well, it could be seen as a pressure valve for children to let off steam and concerns to someone who will listen to them and not take sides.
In mediation, there is the possibility of direct consultation with a child or children, which is undertaken by a mediator who has special training to talk to kids. The idea here is that the consultation is slightly separate from the main mediation process, and often undertaken by a different mediator. This mediator will meet the children and find out their concerns, only feeding back into the main mediation if the children are happy for her or him to do so, and in an agreed form – sometimes a summary of the meeting, sometimes a letter. The children are always reassured that the adults will make the decisions, but that their opinion counts and the adults want to hear what they have to say, if they want to say anything.
When children’s family lives go from the background to the foreground, it is always important to help support them in the best ways possible.
There are always things parents can do to help children through the process. These include trying an amicable alternative to litigation, i.e. negotiation, mediation or collaborative law. Try to insulate your children from the dispute, and if possible focus on enjoying time together and doing the activities they love, rather than dwelling on the dispute or pushing for details about their “other home” or coaching them for the involvement of experts. They might benefit from being able to talk to a therapist or counsellor – a neutral party to whom they can speak openly about their feelings and work through any grief, resentment, or guilt. Your GP should be able to put you in touch with someone.
Don’t forget to remind the children that the separation and dispute are not their fault, and that both of their parents love them. You might think it’s obvious that they aren’t to blame, but children often internalize feelings of guilt around separation, assuming they must be the cause. Take a look at our children page for some excellent resources.
If you would like to make an appointment to speak to us about family law, please give us a ring on 01223 443333.