July Newsletter

The Children and Young People’s Board made significant ground this month as the government expressed its commitment to allowing children aged 10 years and over access to judges during family proceedings.

Justice Minister, the Rt Hon Simon Hughes, indicated in his speech at the Voice of the Child conference convened by the Family Justice Young People’s Board (FJYPB) this month that the government agreed with much of what is contained within its ‘Charter’, in particular that every child of sufficient age and ability should have the opportunity of meeting the judge overseeing their cases.  The FJYPB Charter includes the following objectives;

Children and young people should be given the opportunity to meet and communicate with the professionals involved with their case including workers from the Children and Family Court Advisory and Support Service (Cafcass), social workers, the judges and legal representatives; every child of sufficient age and ability should have the opportunity of meeting with the judge overseeing their case; every child should have the opportunity through Cafcass of submitting their views directly to the judge in writing; all children should be able to communicate their wishes and feelings to the judge; children and young people should be kept informed about the court proceedings in an age appropriate manner, kept informed of the stage their case has reached, and contacted prior to the first hearing, and have the opportunity of giving feedback through email, text, telephone or written form.

Mr Hughes told the conference that he had already shared his intentions with the key players within the family justice system, including the President of the Family Division, CAFCASS and the HMCTS.

The Children Act 1989 (the Act) and the United Nation Convention on the Rights of the Child require that a child’s wishes and feelings are taking into within court proceedings.  The welfare checklist under section 1(3((a) of the Act requires that the court has regard to the ‘ascertainable wishes and feelings…(considered in light of age and understanding)’.  Age and understanding are key to the FJYPB proposals.

Ascertaining a child’s wishes and feelings is, very often, a far from straightforward exercise. As family lawyers we will all have been involved in private law cases where the parents disagree with the allocated Family Court Adviser (FCA) about the reported wishes and feelings of their child(ren). To that end, it would seem an entirely positive step forward that a child of the appropriate age could speak directly to the court, whether that be in writing to the judge or directly.  Considering age, Mr Hughes considered whether 10 was the appropriate age and said,

‘It seems to me wrong that a 10 year old in England and Wales is deemed old enough to be criminally responsible yet has no automatic voice in family proceedings in which decisions are being made about them’.

Inevitably, there will be many cases in which it will be clear that a child’s involvement in proceedings is appropriate and will benefit the child and the outcome.  However, we will all have been involved in cases where the parents worry about the pressure on their child in speaking to a FCA about their views and question whether they are able to be open with them.  FCAs often report that they felt a child appeared to be under pressure to tell them negative things about one parent or had become so embroiled in the proceedings that it was difficult to distinguish between genuine wishes and feelings and those expressed to please one parent or the other.  In these circumstances, will it always be in a child’s best interests to involve them further in proceedings if they are already struggling with the pressure, just because they are 10 years or over?  How will children be protected from the exertion of further pressure to speak up?

If we agree that 10 is the appropriate age for this enhanced involvement in family proceedings, then the next question must be, is the child ‘able’ to participate?  Is the child in the above scenario ‘able’ to express their wishes and feelings within proceedings if they are experiencing parental pressure?  Who will decide whether it is in a child’s best interest to participate?  CAFCASS will be required to play a crucial role in assisting the court to make these decisions.  After all, we will at some time have advised a parent, on the recommendation of CAFCASS, that they must not involve the child in the proceedings by discussing the case with them or even informing them of the impending court hearing.

The proposed change has the hallmark of fairness and justice for older children whose views may often be lost in the cross fire of private law proceedings.  However, affording children a louder voice will require sensitive handling by the legal profession, CAFCASS, the courts and judges to ensure that children are protected from the stress of joining their parents on the front line.

Beth Heaton
Colleton Chambers
July 2014