The Muffled Voice of the Child by Carla Ditz and Helen Greenfield

May 6, 2015

The Muffled Voice of the Child – Children and Divorce (Part 4 of 4)

This is the last in a series of 4 articles which Family Law Associates Carla Ditz and Helen Greenfield wrote for Solicitors Journal on the Voice of the Child in family cases.

It is apparent to both professionals and families involved in the court process that children are being placed in an unenviable position. Crucially, children feel that more should be done to provide them a platform to enable them to be heard. But why should they have to shout from the rooftops?  In this concluding article, we pull together the different strands of this topic and reflect upon this much deliberated area.

The theoretical pros and cons

Simon Hughes MP has reiterated his views both at the Voice of the Child Conference in July 2014 and again in his response to the recommendations of the Dispute Resolution Advisory Group in March 2015; ‘I firmly believe that children and young people should routinely have the opportunity to have a say in matters which affect their future and agree that this should be a non-legal presumption’.

One of the main dilemmas that arises is how to balance the need to protect children from the conflict between their parents whilst also giving them an opportunity to express their views. Children’s competence depends not so much on the age of the child as on the context, the support they receive and the way activities are structured, something which the Family Justice Review considered.

It is important to remember that it can sometimes be very damaging when children are asked to take part in their parent’s battles.  They may feel the need to decide between their parents and may feel responsible for any final decisions made.  There is an important difference between listening to children and making them the de-facto decision maker; it is widely recognised that children should not be given a level of power and authority that they are not equipped to bear.  As professionals, we need to distinguish between a child’s own preferences, views and perceptions and those who are merely parroting the opinions of a parent.  Similarly, listening and hearing what children have to say also means understanding their perceptions of events, not our own construction of their meaning, which can be difficult.

All that said, being heard and understood can be a “healing experience” for children who may be empowered by the experience, rather than simply having adult solutions imposed upon them.

Different Jurisdictions

It is important to briefly mention that these issues are not confined to this jurisdiction alone. In their article in the May 2013 edition of Family Law, Gillian Douglas and members of the Network on Family Regulation and Society provided a very useful summary on how the debate surrounding the voice of the child is being settled around the globe.

Of particular interest, Australia continues to face difficulties despite the appointment of independent children’s lawyers as a result of both the lawyers and the Judge, continuing to take an adversarial approach to the issues faced.  Similar difficulties are being faced in Scandinavia with children being consulted but not heard. The Netherlands have a strict policy that all children over 6 must be consulted and children of 12 and over have the right to be heard by the Judge but not all children are taking up this opportunity.  Italy on the other hand has amended legal proceedings to “listen” to children, not just hear them. Finally, the US provides no consistent pattern of recognition of children’s views.

Conclusion

Unsurprisingly, the clear message from the research seems to be that the courts should always put listening to, and perhaps more importantly hearing, the child first when making any decision that affects them.  The Ministry of Justice has been heavily involved in promoting this cause making a number of proposals for a more child-inclusive system including the use of mediation and indeed endorsing a number of recommendations of the Dispute Resolution Advisory Group in the Government response both published in March 2015.

The need for children to be more involved also came to light in the views of the children on the Family Justice System Young Peoples Board and the finalisation of the National Charter.  However, is this an unfair sample of those involved with the system?  Aren’t the children on this board inevitably going to be the ones that want their voices heard and are others less willing to come forward?

What is apparent from current dialogue regarding the ‘Voice of the Child’ is that the deficiencies in this area are finally being brought to the fore and addressed. Ruth Smallacombe, family consultant, mediator and counsellor concludes, ‘This represents or should represent a fundamental shift in culture over time and impacts on how we all, parents and professionals alike consider the needs of children whenever there is family separation. Rather than many parts of the system still paying mere lip service to the ‘voice of the child’ I sincerely hope that we all now seriously offer child centred opportunities (not just legal nor mediation based) for children and young people, not only to have their say and get support, but to influence in some way (if they wish) the far reaching decisions which other people will make about them and which influence the rest of their lives. To do this we need raised awareness, better supported parents and families and better equipped professionals sensitive to the complexities and responsibilities involved.’

It is clear that listening (and hearing) children, however it is done in practice, is likely to change, not only the outcomes of the matters they are directly involved in, but the family justice system as a whole.

Carla Ditz and Helen Greenfield, Family Law in Partnership Ltd

  • Ruth Smallacombe is a family consultant, mediator and counsellor at Family Law in Partnership Ltd. She trains mediators in direct consultation (or child inclusive mediation) in the UK and abroad. She is familiar with the Australian and UK models and was part of The Voice of the Child Dispute Resolution Advisory Group consultation forum. 

Sources:

  • Family Justice Review: the children’s verdict.  Children’s views on the recommendations of the Family Justice Review Panel, 2011.  A report by the Children’s Rights Director for England.
  • New families, new governance: international perspectives on hearing and listening in family regulation.  Gillian Douglas and Members of the Network on Family, Regulation and Society.  Family Law May 2013.

This article first appeared in Solicitors Journal, May 2015