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Should children be heard in English family court cases?

An article published today by the BBC explores the issue of whether children should be heard by the Court, when their parents are unable to agree what is in their best interests.

According to CAFCASS, more than 100,000 children were involved in family court cases in the last year. In the majority of cases, where parents are unable to agree the arrangements for where the child should live, the Court will instruct CAFCASS – the Children and Family Court Advisory and Support Service – to discuss the issues with the parents. In the event there are any concerns in relation to the children, or an agreement cannot be reached, the CAFCASS officer may also meet with the children in a familiar setting such as the school or the parent’s home.

Depending on the nature of the application, the CAFCASS officer may complete a “wishes and feelings” exercise with the child, which is an age appropriate tool designed to ascertain how the child truly feels. This in turn impacts upon the CAFCASS officer’s recommendation to the Court, as to how the matter should be settled.

So how much weight does the Court place on the child’s wishing and feelings? Well, this very much depends on the child’s age and their understanding of the situation. The CAFCASS officer will assess the child’s maturity and ability to consider the arrangements. There is no particular age from which a child has the sufficient wisdom to make these decisions, as the Court recognises that each child is unique and the circumstances differ on a case by case basis. Certainly, the Court is more likely to listen to the wishes of a teenager, rather than a young child and it is a sliding scale in between. By the age of 16, the Court will take the view that the child will vote with their feet and therefore the Court will not make an Order, unless there is specific need to do so (e.g. if a child does not have the mental capacity to make their own decisions). That is so even if the Judge views those wishes and feelings as unwise, as was the case in S v S (Relocation) [2017] EWHC 2345 (Fam). This case concerned an application made by two teenagers, for permission to live with their father in Switzerland, contrary to their mother’s wishes.  The Judge concluded that “unless the consequences of mistaken choices are profoundly harmful, the court cannot protect older children from every mistake that they may make.”

Unfortunately, notwithstanding CAFCASS’ involvement, many children feel that they are not truly listened to in proceedings. This may be because the CAFCASS officer has recommended a solution contrary to the child’s wishes and feelings. As a result of this, campaigners are arguing that children should be given the opportunity to speak directly to the Judge, or give evidence at a Court hearing.

In a very recent case, Mr Justice Jackson wrote a personal letter to a 14 year old boy, who had himself made an application to Court to move with his father to Scandinavia. The boy gave evidence at the hearing, but had then gone a school trip and did not attend the reading of the Judgment. In the letter, Mr Justice Jackson recognised the boy’s wishes but ultimately concluded that his wishes were very heavily influenced by pressure to please his father.

Similarly, in  L v L (Child: Arrangements Following Treatment) [2017] EWHC 1212 (Fam) (19 May 2017) a case involving a 14 year old girl suffering with severe anorexia, Mr Justice MacDonald concluded that it was in the girl’s best interests for an order to be made for her to live with her father, which was against her express wishes. In this case, the Judge highlighted that where an older child’s wishes may seriously compromise their welfare, the Court may override those views.  Emily Watson has written a blog on this subject.

The above cases highlights that whilst a child may wish to feel heard in family proceedings, many children do not have the emotional maturity to make such life altering decisions. Throughout separation, it is not uncommon for a child to change their mind, as they wish to please both parents. It would be very difficult for the Court to take a child’s voice at face value, as there are so many factors which may influence their decision.

Perhaps the biggest consideration is whether a child could suffer harm from giving evidence in Court. No doubt the pressure of giving evidence can be overwhelming for adults, let alone children. It is difficult to see how the Court could address this, in the very rigid Court structure. In addition, no child should feel responsible for the decisions which are made at Court and perhaps not involving the child, protects them from feeling that they are to blame if the Judge ultimately decides against their evidence.

Whilst there is an increasing number of children who want to be heard in family proceedings, the Ministry of Justice will need to carefully consider how to facilitate this, whilst also protecting children and sparing them the pressure they may feel to please one parent over the other. The discussion continues.

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