The Muffled Voice Of The Child – Children And Divorce

March 16, 2015

Children and divorce: In this second article in a series of four, Family Law in Partnership associates Helen Greenfield and Carla Ditz examine the complex and emotive issue of the voice of the child. In last month’s article, Helen looked at some of the key reports on the effect of family breakdown on children. The findings were revealing and conclusive – there is a very real desire by children to have their voices heard and to be directly involved in the decision making process. 

In this article, we explore this issue further and consider whether the law is compatible with these findings. 

The Law

The basic principle that children’s views should be taken into account is not new.  The United Nations Convention on the Rights of the Child (UNCRC) was adopted by the United Nations in 1989. The UNCRC sets out the rights of every person under 18 and how those rights should be met. UNICEF have set out what it sees as the core principles of the UNCRC (two of which are referred to in more detail below);

  • Non-discrimination, or universality (Article 2);
  • Best interests of the child (Article 3);
  • Right to life, survival and development (Article 6);
  • Respect for the views of the child (Article 12)

Article 3 states that “in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration”.  It requires governments and other agencies involved in provision, legislation policies and programmes “to review any of their actions for the impact on children”.  Arguably, this introduces inherent tension between hearing the child and respecting the adults’ right to family life.

Article 12 concerns children’s rights to have their views heard and respected.  It says that states “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.”

Around about the same time the UNCRC was adopted, the recommendations of a report of the Inquiry into Child Abuse in Cleveland (1988) were released, with the emphasis on listening to children.

The Children Act 1989 followed shortly thereafter. The 1989 Act aimed to strike a balance between the rights of children to express their views on decisions made about their lives, the rights of parents to exercise their responsibilities towards the children, and the duty of the state to intervene where the child’s welfare requires it.

More specifically, section 1(3) of the Children Act 1989 (better known as the welfare checklist) requires that on any contested application for an order under s8, or any order under Part IV of the Act, a court shall have regard in particular to… “the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding)”.  Further, the Guidance and Regulations to the Act specifically recognised that “there will be a greater emphasis on representing the views, feelings and needs of the child in these proceedings”.

In addition, the Children Act 2004 recognises the importance of children having a voice, placing a duty on local authorities to ascertain children’s wishes and feelings and to take this into consideration when making welfare decisions. Further, the Family Justice Review of 2011 concluded that “children’s interests should be truly central to the operation of the family justice system”, children being given age appropriate information as early as possible in a case and being supported in making their views known.

Perhaps one of the most significant developments in this area was announced at the Voice of the Child Conference in July 2014 where the Rt Hon Simon Hughes, Minister for State Justice and Civil Liberties delivered a speech announcing the intentions of the Ministry of Justice as regards the voice of the child in public and private law family proceedings. The Government proposals are that children and young people aged 10 upwards involved in public or private law family proceedings will have access to the judge assigned to their case to communicate their wishes and feelings in person if desired. He stated, “I hope that I am really clear that in future we are not just going to say that the voice of the child and young person will be heard. In whatever are appropriate ways, we are going to make sure this happens.” Further, in February 2015, the MoJ made some key suggestions as to how children (involved in court proceedings) can express themselves such as writing letters to the judge (to be explored  in more detail in the next article). There is also a drive to work more with children within the forum of mediation. This represents a huge step in giving children, involved in family proceedings, a ‘voice’ and will be of considerable interest to the family practitioners and other professionals working in the field.

It is clear that the foundations for recognising the voice of the child are set out in both domestic and international law. The announcement of the latest proposals from the Ministry of Justice go one step further in promoting the voice of the child and demonstrates a commitment to a more child-centred approach in litigation.

The next article in this series will explore the practical aspects of communicating a child’s wishes and feelings including the role of mediation in this area.

This article first appeared in Solicitors Journal, March 2015.