The value of children’s wishes and feelings in court proceedings

As part of that report, they will often, in some way, speak to or work with the children to ascertain their feelings about the situation.

This process is met by different reactions from parents but the responses usually this fall into one of three categories:

1. The parent is keen for their child to be spoken to and for their opinion to be heard;
2. The parent is concerned about involving the child or what they might say and does not want this to happen;
3. The parent believes the child is too young to make decisions about what should happen.

There are now plans in place for children to be more involved in the court process and for their views to be heard. This follows an announcement in July 2014 by Simon Hughes MP, the Minister of State for Justice and Civil Liberties, stating that children over the age of 10 may be able to speak to the Judge and visit courtrooms themselves, albeit not during the actual hearings.  As many parents who are dealing with a difficult separation often let their feelings towards the other parent dictate their views on what arrangements should be made for their children, in my view it is almost always useful for those child to become involved in the decision making process to some extent.  Clearly, the value of such participation will vary depending on the particular circumstances and the age of the child.

An important point to make clear though is that the decision will never entirely be in the hands of the child.  Their wishes and feelings will be taken into account, but unless they are aged around 15 or older (in which case the Court may feel there is no need to make an order at all), decisions as to what arrangements should be in place are for the Court to make if the parents are unable to agree.  Therefore parents should be under no misconception that their 10 year old will be deciding which parent they should live with.  Although the child’s views are important, the law recognises that many other factors are relevant when making such a decision.

When reaching its conclusions, the court must consider the so-called ‘welfare checklist’ which highlights the important aspects of the case that must be taken into account:

(a)  The ascertainable wishes and feelings with the child concerned, considered in the light of his age and understanding;

(b)  His physical, emotional and educational needs;

(c)  The likely effect on him of any change in his circumstances;

(d) His age, sex, background and any characteristics of his which the Court considers relevant;

(e) Any harm which he has suffered or which he is at risk of suffering;

(f)  How capable each parent (or other relevant person) is of meeting his needs.

Each and every one of these factors must be considered by the Court and so the wishes and feelings of the child alone will not dictate the outcome of an application.

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Cafcass must also consider the welfare checklist when preparing their reports.

Cafcass officers are highly trained in knowing the best way to speak to a child.  Parent should not be concerned about children being put under pressure to give an answer or make a decision.  They work with the children is to gain a better understanding of the entire picture, beyond the parents’ side of the story.

Cafcass use many different techniques to ascertain a child’s views, from talking to them directly about a particular issue (if it is appropriate to do so) to asking the child to draw a picture to express their views.  One example I have come across is an officer asking a child to draw a picture of a deserted island that the little boy was going to live on and explained that he should draw on the island what he felt he would need with him.  He was also to draw a “bad island” where he could put things that he did not want to take with him or that he was worried about.  The child in this particular case drew his island with his mum, her new partner, his baby brother, his teddy bear and some cake on it.  The bad island had his father on it but the picture was drawn of his dad shouting.  The little boy also drew a boat next to his dad’s island and commented that the boat was so his dad could come to the good island sometimes when he was not angry.  It was clear how the little boy felt about his father without him being asked quite so directly.

The exercise is not intended to be an interrogation.  Cafcass officers do not expect children to be able to decide and would not push a child to do so.  Some gentle encouragement is common to enable the child to open up about their feelings but if a child did not have a view or did not wish to express a view they would be under no obligation to do so.

Not every child will necessarily be spoken to.  A careful decision is made at the discretion of the Cafcass officer.  The officer has to ultimately decide whether it is in the child’s best interests to be spoken to or whether it could potentially be damaging to them.  There is also no clear age at which a child should or should not be spoken to.  Each case and each child is considered individually.  It is generally understood that a very young baby will not be able to express much of a view, but even toddlers are able to do so in their own way.  They perhaps will not necessarily be able to say outright how they feel but through their actions it can soon become clear, just like the little boy with his islands.

Cafcass and the Court have to consider the value of the comments made by a child and the context in which they have been given.  It is sometimes agreed that little weight should be given to the child’s views for one reason or another.  The extent to which their views are taken into account very much depends on the individual child and the individual circumstances.  If a child is felt to be mature and aware of the issues in their case, their view will be given more weight than if they take a very simplistic approach, such as preferring whichever parent can buy them more presents or who takes them to the park more frequently. Cafcass officers are experienced in being able to not only to listen to a child’s views but also to analyse them so that the appropriate weight can be given.

Children can be told what to say by one parent and are sometimes given a script.  I have read a number of reports in which children have, somewhat randomly, made a comment about not wanting to see their father or telling the Cafcass officer about how mean their mother had been to them when the officer was asking them what they liked best about school.  It soon becomes clear if words have been put into a child’s mouth or they have been encouraged to talk about a particular incident and it then becomes the officer’s job to find out why the child made the comments in question and if a more positive view of the other parent can be encouraged in the child.

Children often like to please both parents and don’t want to hurt either.  They are sometimes very aware of what they are being asked when a Court is considering which parent a child should live with.  Children often put their parents before themselves in their comments and suggest that they should live with both parents.  Sometimes, thankfully, the comments of children in reports are enough for the parents to recognise their own behaviour.  In one particular case I dealt with, a child refused to comment on what she wanted and literally put her hands over her mouth and shook her head repeatedly when asked about her parents by the Cafcass officer because she did not want to make either parent sad by making any kind of comment that she thought would get her in trouble.  The Cafcass officer was extremely concerned for her emotional welfare.  Fortunately, the parents realised their war was impacting on their daughter and although I am sure they will not have suddenly become the best of friends, they did both agree to make a conscious effort to work together better because they had been very upset at the realisation of the impact of their actions on her.

It will be interesting to see how the role of children in proceedings develops and how that is managed by the courts and Cafcass.  One presumes that this will have to be be determined on a case by case basis to be assessed by Cafcass and the Court, as is currently the case.  In my view, the input of children in determining their future relationships with their parents is vital and if that is to become more of a focus for the court, that must be a positive development – as long as it is done in the right way of course.