When considering whether to make a residence or contact order (or, when it comes into effect, a child arrangements order) the court must, of course, consider the factors set out in the ‘welfare checklist’ in section 1(3) of the Children Act 1989. The first of those factors is the ascertainable wishes and feelings of the child concerned, considered in the light of their age and understanding.
The court should, therefore, always consider the wishes of a child before making such an order. The checklist says nothing about the weight to be given to those wishes, but it is of course generally acknowledged that the older or more mature the child, the greater the weight that is likely to be given to their wishes.
But sometimes just ascertaining the wishes of a child, particularly an older child, is not enough. Sometimes it is appropriate that they be given a full opportunity to participate in the proceedings as a party.
Although it was not a case concerning the making of an act under the Children Act, the involvement of a child was what was being considered in the case of Cambra v Jones and Another.
Cambra v Jones was actually a child abduction case involving two children, Jessica and Tomas, now aged 16 and 14. The family had lived in Spain but after the parents separated the mother returned to her home country of Wales. The mother retained the children in Wales and the father obtained an order requiring her to return the children to Spain.
The mother failed to comply with the order, saying that it was impossible to compel the children to return to Spain against their wishes. The father applied for the mother to be committed to prison for breach of the order.
Shortly before the father’s application was due to be heard Jessica indicated that she wished to take part and be represented at the hearing.
The matter went before Sir James Munby, President of the Family Division. He explained Jessica’s reasons for wanting to be a party thus:
“Her reasons for wishing to participate are threefold: first, she says that it is her own refusal to return to Spain that has resulted in my order not being complied with, and she does not want to see her mother being held responsible for that; second, she says that the impact on her personally if her mother were to be imprisoned at this crucial stage in her education (with GCSEs looming) would be hugely significant; third, she wishes to participate in any renewed attempt the father might make to enforce the order for her return to Spain, for it is, she says, unfair to her, as indeed to Tomas, to continue to seek their return despite what she says are their strong and long-held objections to returning.”
Sir James acknowledged that making a child a party to proceedings can be very damaging to family relationships. However, he said that in this case it was hard to see how matters could get any worse. He went on:
“Jessica is, in the eyes of the law, a child, though she is, and no doubt sees herself as, a young woman. I must of course consider what is in her best interests. But I have to ask myself whether it can really be in her best interests to shut her out from participating in proceedings which … affect her very profoundly for all the reasons which she [has] articulated, and which she is so very anxious to be able to participate in.”
It was therefore “overwhelmingly clear” that Jessica’s best interests were served by enabling her to participate as she would wish, rather than preventing her. Accordingly, she should have party status.
In the course of his judgment Sir James referred to the growing acceptance in recent case law of the need to involve children, particularly children of Jessica’s age and maturity, in processes which so directly impact upon them. He quoted Lord Justice Thorpe’s words in the 2005 case Mabon v Mabon:
“…we must, in the case of articulate teenagers, accept that the right to freedom of expression and participation outweighs the paternalistic judgment of welfare.”
I suspect that in future we may see more applications to have older and more mature children made parties to proceedings.
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