In this blog Helen Greenfield and Elizabeth Fletcher, directors at Family Law in Partnership, examine how the voice of the child can be heard during proceedings involving family breakdown. 

Decisions which impact on children’s lives should not be made without an awareness and understanding of how children themselves will respond.  It is, after all, the children who have to live with those decisions and what they entail. Despite the plethora of research supporting this view, many children still feel that they’re views are often disregarded or, at worse, they are not given the opportunity to be ‘heard’ at all. Involving the children in the decision-making process itself can, however, be inherently problematic and gives rise to yet further questions; at what stage and in what circumstances should children be involved and, more importantly, how do we give them a voice and indeed encourage them to speak up.

In this blog, we consider the significance of the voice of the child during family breakdown and post separation.

Consulting with the child

The research

In 2012, a report by Jane Fortin, Joan Hunt & Lesley Scanlan entitled ‘Taking a longer view of contact: The perspectives of young adults who experienced parental separation in their youth’ examined this issue. The Report found that despite the upheaval, many children emerged from the shock of family breakdown with “considerable clarity over their own needs”. Large numbers of parents assumed their children would “fall in with whatever arrangements were put in place” but children were most likely to rate their experience of contact with the non-resident parent as being positive if they had been involved in the decision-making process. The Report concluded that “Genuine consultation with children should produce contact arrangements with which children are themselves happy”.  Parents should be more keenly aware of their children’s capacity to “discern their own needs” and, unless they are infants, children should always be consulted before establishing arrangements. Where court proceedings are underway, it was vital that the court heard the views of the child as contact arrangements which did not accord with the child’s views were unlikely to be successful.

The impact

Giving children the freedom to express themselves can give rise to anxiety for the child. Many children will be sensitive to their parent’s own wellbeing and will, in turn, be concerned not to upset their parents through voicing their own opinions or feelings about contact arrangements. So there is a balance which needs to be met to avoid undue pressure or unease on behalf of the child in what is often already a sensitive situation.

The theoretical pros and cons

One of the main dilemmas that arises is how to balance the need to protect children from the conflict between their parents whilst also giving them an opportunity to express their views. Children’s competence depends not so much on the age of the child as on the context, the support they receive and the way activities are structured.

It is important to remember that it can sometimes be very damaging when children are asked to take part in their parent’s battles. They may feel the need to decide between their parents and may feel responsible for any final decisions made. There is an important difference between listening to children and making them the de-facto decision maker; it is widely recognised that children should not be given a level of power and authority that they are not equipped to bear. As professionals, we need to distinguish between a child’s own preferences, views and perceptions and those who are merely parroting the opinions of a parent.  Similarly, listening and hearing what children have to say also means understanding their perceptions of events, not our own construction of their meaning, which can be difficult.

All that said, being heard and understood can be a “healing experience” for children who may be empowered by the experience, rather than simply having adult solutions imposed upon them.

In practice…

There are a number of ways in which a child may voice their opinion when parents separate (whether or not there have been court proceedings). From writing letters to meeting with neutral third parties, the range of options available mean that it can be tailored to each child. In England, for example, in certain circumstances, a child may meet with a judge in private to express their concerns where decisions are being made about their upbringing.

In court proceedings where a judge has made an order, communication and explanation of that decision can also be of crucial importance in helping the child understand and come to terms with the outcome. Re A (Letter to a Young Person) [2017] EWFC 48, a decision of a High Court judge in England illustrates this very point. It was the first case in which a judge delivered his judgment in the form of a letter to the child (who was 14 years old at the time) – please see our blog here. Whether or not this form of judgment will be followed remains to be seen but it certainly highlighted the current sentiment as regards inclusiveness of a child in decisions relating to their own upbringing and accessibility for that child of any decision of the court.

Away from the court arena, a suitably qualified mediator can discuss matters with the child direct, thus avoiding the need for a child to have a difficult conversation with their parents where there are sensitive issues involved. Unless children are encouraged to do so however, they may shy away from communicating their views. Equally, unless they are told how to voice their opinion, they (and indeed their parents) may miss out on a valuable opportunity.

Final thoughts

Research has shown that there is a very real desire by children to have their voices heard and to be directly involved in the decision-making process. The message is clear – listen to what children have to say; make them feel heard; make them feel like their concerns, feelings and views are understood and importantly, act upon it. Giving children the opportunity to express themselves about contact arrangements or involving them in decision making generally will send a powerful message to the child that their views matter. Crucially, the long term benefits of ‘consulting’ with a child will be evident where a child feels included in the decision-making process – from small, everyday decisions to more significant ongoing decisions (whilst bearing in mind the practicality and/or appropriateness in asking for their opinions).

Elizabeth Fletcher is a director at Family Law in Partnership Ltd. She joined the firm in 2007 and has specialised in family law for over 10 years. Elizabeth focuses on all aspects of family breakdown, but has a specific interest in managing arrangements for children both in and out of the court arena as well as resolving financial disputes arising from the breakdown of a marriage or relationship.

Helen Greenfield is a director at Family Law in Partnership Ltd and has been specialising in family law for over 10 years. Helen advises on all matters relating to family breakdown, divorce and cohabitation and has a particular interest in helping those who have been affected by domestic abuse.