On Friday last week the Ministry of Justice and Family Justice Minister Simon Hughes announced that children are to be given a greater voice in the family justice system, as I mentioned here in this post. The changes will affect both public and private law cases, although what I will say here relates primarily to the latter.
Specifically, the government has made the commitment that from the age of ten, children and young people involved in all family court hearings in England and Wales will have access to judges to make their views and feelings known. We were additionally told that the government will also work with the mediator sector so that children have appropriate access to mediators in cases which affect them.
The rationale behind the announcement was stated as being “that for too long children have been pushed and pulled through the family justice system with little or no say on what happens to them”. It was also explained that the age of ten was used “to be consistent with other existing policy and practice in this country”, ten being the age of criminal responsibility for young people in England and Wales.
Let us start with that last point. I really don’t see the significance of ‘marrying up’ the law on children giving their views in family proceedings with any other area of the law, such as criminal proceedings. What is important when it comes to taking the views of the child is not just the child’s age, but their understanding. This, of course, is already written into the existing law – see section 1(3)(a) of the Children Act 1989.
Ten is a completely arbitrary number, as would be any other ‘cut-off’ age. Some ten year olds are a lot more mature than others. Some eight year olds might be in a better position to put forward their views. Some twelve year olds may still not be mature enough to put forward theirs. As I said, the specific age does not matter – what matters is whether or not that child has a sufficient understanding of the situation for their views to be taken into account.
The current law retains the flexibility to take the views of any child into account irrespective of whether they have passed any particular birthday. Of course, the weight to be given to a child’s wishes will depend upon the level of the child’s understanding.
Otherwise, as I said in my post here last Friday, I simply don’t see that any new law is required, or will make any real difference. As mentioned above, it is already written into our current law that when considering whether to make a children order the courts must take into account the ascertainable wishes and feelings of the child concerned. The courts already do this, usually via a Cafcass officer interviewing the child.
The Cafcass officer may ascertain whether the child wishes to meet with the judge and, if so, convey that wish to the judge. However, any such meeting between the child and the judge is not for the purpose of gathering evidence (such as the child’s wishes) – its 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 or her. The whole issue of judges meeting children is acknowledged to be a sensitive area – hence there are specific Guidelines that cover it.
The announcement on Friday stated that children should have direct access to judges in order to put forward their views, and possibly even suggested that children should be able to demand access to a judge. This is fraught with difficulties. Firstly, the judge is not as highly skilled as a Cafcass officer at taking evidence from a child. Secondly, there are, of course, issues with judicial impartiality. Thirdly, it is simply going to take up a lot of precious judicial time, already overstretched by the huge rise in the number of litigants in person.
Similar difficulties must surely apply to children having access to mediators, who may have even less experience of dealing with children than judges do.
There is also the issue of putting too much power into the hands of the child. A child who knows that, with direct access to the judge, what he or she has to say may have a significant bearing upon the outcome of the case is put in a terrible position. They have to decide between their parents. They may possibly seek favours from one parent in return for a word to the judge in support of that parent. They may also be susceptible to ‘grooming’ by one parent. These are, of course, problems that already exist, but a change in the law may exacerbate them.
But above all, a change is not necessary. What is wrong with the current system of Cafcass officers ascertaining the wishes of the child? In a sense it doesn’t matter who ascertains their wishes, so long as someone does. The end result is that the child’s wishes and feelings are ascertained, and are taken into account, having regard to their age and understanding. This is exactly what happens already. In short, any new rules will make little or no difference to the ultimate outcome – they are just another example of government interference aimed at demonstrating to the voter that they are doing something that will make a difference, when they are not actually doing anything at all.