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Thoughts on giving children a greater say

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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.

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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  1. Moputabe says:

    Could not agree more John.

    It is a dreadful idea and puts children firmly in the middle of the conflict and partaking, rather than being protected by the adults as much as possible.

  2. Mike Taylor says:

    Sadly this appears to be another vacuous piece of ‘Look how child friendly we are’ PR. I can’t see how it assists in tackling the problems currently in the Family Law Courts and would like to see the evidence that this approach will assist those families concerned, particularly in Private Law. I imagine it will be costly and time consuming which are factors we are told are in short supply.

    I am all in favor of children, if they have the understanding and desire, being kept well informed but it seems to me that the problems are created by the adults and they have the responsibility to resolve things. Besides which are we seriously being told that a 10 year old could possibly determine complex family issues? One has to only let ones mind drift over the many scenarios that come before a District Judge or above to see how naive this all is. As we know in court proceedings being involved doesn’t equal feelings of resolution or satisfaction.

    It is at this point that I usually ask myself whether it is worth continuing with this thread but today and following the Tony Benn line of ‘its best to say what you think even if nobody is listening’ I would just like to reflect briefly on my theory of how we have got to this in ‘Private Law’.

    I’m not sure but I would guess that Cafcass is behind this thinking somewhere, it follows for me then that a brief look at the short history of Cafcass can gives some clues.

    Cafcass was formed from two separate social work bodies, the Children’s Guardians and the Family Court Welfare Service. The Guardians came into being from the tragedies of abuse and Local Authority failings. Specifically the Guardians were there to safeguard the child in proceedings which involved the Local Authority. The Family Court Welfare Service had a longer tradition of resolving family problems going through the Courts, it was very holistic in approach and instrumental in areas of conciliation (even reconciliation), mediation and contact centers.

    When the two social work bodies came together I would suggest there was a certain amount of jockeying for prominence not to mention some attempts at elitism from certain quarters. However to cut a long story short I think the Guardian role of putting the child at the center of proceedings won the day.
    I have no problem with this in Public Law but believe it to be far to simplistic an approach for Private Law.

    Obviously in Private Law the child is the issue and very important in every respect but there are other players such as parents. grandparents, siblings, half siblings, step siblings and the list goes on. For me it is about the not only the child but the ‘Family’ .

    So I think we need imaginative support services for the court which are hands on rather than being offered grand statements of intent that sound good until you start reflecting on what they actually mean.

  3. Paul Apreda says:

    As ever you’ve encapsulated the issues. Simon Hughes speech refers to Welsh Govt legislation around UNCRC. Article 12 + the voice of the child is the focus of Welsh Govt policy in many areas. You talk about problems with Judges not being best placed to speak with children directly BUT more than 60% of cases are heard by magistrates in Wales. The allocation rules introduced in April will mean English courts will catch up with us very soon. So, will children speak with magistrates or only Judges? You also (while brilliant using the initials PA) raise the problem of children being manipulated. We see that in Wales already because of the Voice of the Child agenda. So, who is going to speak out against ‘listening to children’?

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