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A Child’s Wishes and Feelings in Court Proceedings

Where separated parents cannot agree on the living arrangements for their child or there is a dispute about a key aspect of a child’s life such as education or religion, court proceedings under the Children Act 1989 may ensue.

The child’s welfare is the court’s paramount consideration in such proceedings and the court has to take into account a list of factors known as the ‘welfare checklist’.

The first factor on that checklist is the ‘ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding)’.

The wishes and feelings of the child concerned will not be determinative. However children and young people have a right to be heard and to know about and understand issues affecting them in the family courts.

Welfare Checklist CAFCASS

So how are a child’s wishes and feelings listened to and relayed back to the court in family proceedings? Usually, this is via the Children and Family Court Advisory and Support Service, known as Cafcass.

Cafcass represents children in family court cases. It makes sure that children’s voices are heard and decisions are taken in their best interests. It is independent of the courts, social services, education and health authorities.

Cafcass uses many different techniques to ascertain a child’s views, from talking to them directly about a particular issue to asking the child to draw a picture to express their views. Not every child will be spoken to; Cafcass will make a careful decision about whether that is appropriate or not.

Once Cafcass has completed their enquiries, it will prepare a report that will be read by the parents and the court. The Cafcass officer may be called to court to give evidence during the proceedings so that they can be questioned on their opinions and recommendations.

The judge will make the final decision about what is in the child’s best interests but will usually place great weight on the Cafcass report.

Court proceedings are becoming more child-centred. The recent judgment in Re A (Letter to a Young Person) [2017] EWFC 48 (http://www.bailii.org/ew/cases/EWFC/HCJ/2017/48.html) comprises a letter sent to a 14 year old boy who was the subject of court proceedings to determine whether he should be permitted to move to Scandinavia with his father. This novel approach is a clear sign of the court’s increasingly child-centric focus.

For more information on the issues raised in this blog please do not hesitate to contact one of the team at Rayden Solicitors.

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