The Muffled Voice Of The Child – Children And Divorce (Part 3 of 4)

April 14, 2015

Children and Divorce: This is the third article in a series of four by Family Law in Partnership associates Carla Ditz and Helen Greenfield exploring the topical issue of the voice of the child. In the second article we looked at how the law supports children’s desire to be heard when they are the subject of court proceedings.  But how does this actually happen in practice?

The existing regime

There a number of different ways which have been developed to ensure children are given a voice;

  1. CAFCASS – an officer will be closely involved in most cases and “advises the courts on what [they] consider to be in the best interests of individual children”. They set out to commit to “using their influence positively as the voice of the child and the eyes and ears of family courts”.
  2. Guardian ad litem – represents children in cases involving local authorities, instructing a solicitor to act, interviewing anyone connected with the children and writing reports for the court as well as giving evidence.
  3. Their own solicitor – some children are permitted to instruct their own solicitors, without having a guardian ad litem but only when they are of sufficient age and understanding to have an appreciation of the nature of and reason for the proceedings.
  4. Giving evidence in court – only if the child understands the nature of the oath. Case law suggests that the guideline is somewhere between 8 and 10 years (R v Hayes (1977).  In practice however this is rare if not non-existent in the family division. Perhaps a more difficult question is whether one should compel a child to give evidence by witness summons.
  5. Seeing the judge – in paragraph 5 of the Guidance for Judges Meeting Children issued in April 2010 it states, “the purpose is to enable the child to gain some understanding of what is going on and to be reassured that the judge has understood him/her.” Up until now, seeing the judge has been rare. Reforms are however seeking to change this.
  6. The parties themselves – this comes with the caveat that the parties may be inherently biased. The court can however attach whatever weight they consider appropriate to the parties views.

The future?

The matter is still very much at the fore of Government proposals and public body initiatives. This suggests that there still remains a disconnect between the desire by children to be heard and what actually happens in practice or, at the very least, it’s efficacy.

The Family Justice Young People’s Board (FJYPB) have been doing considerable work in this area including the latest draft of the National Charter for Child Inclusive Family Justice which sets out what children and young people can expect from professionals in the justice system. One of the key principles of the Charter is the opportunity for children to meet with judges. Judges will also be guided by the Children and Vulnerable Witnesses Working Group set up by the President of the Family Division. The final report has just been published in March 2015 and includes reviews to guidance for judges meeting with children and the giving of evidence by children. Further, promising new developments have been emerging over the course of the past year such as allowing children to express themselves through letters and pictures as well as the development of the ‘Court Gaming App’ to provide information about the court system. These new means will be welcomed by practitioners and children alike as a means of offering children a myriad of options to communicate their wishes and feelings, whether direct to a judge for example or indirectly through written communication.

In a government press release in February 2015, the Justice Minister Simon Hughes reiterated government plans to further the voice of the child. “For too long, children and young people have struggled to have their voices heard during the family court process. Although they are often at the centre of proceedings, the views of children and how they feel are often not heard, with other people making vital decisions for them.” Of note, the Family Justice Review and the government’s current plans place considerable faith in the role of mediation as a means of resolving family disputes. The consensus is the need for greater inclusion of children in this process, the concern being that children are not having any input in a forum where decisions and discussions about them are taking place.

All too often, a decision is made that impacts directly on the child but which does not represent their views or feelings on a particular issues. Rather, one is forced to consider what is in the best interests of that child. However, it seems the system is finally moving in the right direction with a more child-inclusive approach. If successful, there is a real opportunity for the old proverb ‘Children should be seen and not heard’ to become a thing of the past.

Carla Ditz and Helen Greenfield, Family Law in Partnership Ltd

This article was written for, and appeared first in, the Solicitors Journal.