Children and divorce: In the first of a series of four articles Family Law in Partnership associate Helen Greenfield considers when and how children’s views should be taken into account in decisions about family breakdown.

Considerable research supports the contention that decisions which impact on children should not be made without an awareness of how the children themselves will respond.  After all, the children have to live with those decisions.

However, this becomes more complicated when the myriad of issues surrounding this argument are considered.  At what stage should children be involved and, more importantly, have their voices heard? How, and to what extent, should their views be taken into account?

In a series of four articles I will examine this complex debate from my perspective as an associate at Family Law in Partnership. I will look at the underlying research, the law, what happens in practice and the juxtaposition of law and practice, bearing in mind:

1. the changes children themselves view as necessary; and
2. how the law and professionals currently address this issue in practice.

The research…from the horses’ mouth

The CAFCASS website (www.cafcass.gov.uk) includes a reference to the Family Justice System Young People’s Board.  The Board, established by Cafcass and now working across the family justice system, comprises around 40 children who either have direct experience of the family justice system or have an interest in children’s rights and the family courts.  The website sets out the Board’s top five wishes for the family justice system for 2013 as being (emphasis added);

1. Cases don’t drag on and are always focused on our needs
2. There is more support when we just need to speak to someone
3. We find a way for the court to keep us informed about our cases such as when big decisions are going to be made about our lives
4. Help is available when things get tough and everyone’s arguments stress us out
5. We have a way to tell the people involved in our case about the good and bad bits and know they’d listen

The 2012 Report “Taking a longer view of contact”, considered the perspectives of young adults who had experienced separation in their youth. 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. 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.

Similar conclusions were reached by The Office of the Children’s Commissioner when gathering the views of children for submissions to the Family Justice Review 2011.  Their report, “Do more than listen. Act”, forced them to reflect on the difference between children having a voice and really being heard.  One 13 year old said “I don’t think our parents knew how we were feeling.  I feel glad that I’ve been able to talk – I’ve finally got to express what I feel”. The children interviewed wanted adults to “listen, hear them, understand them and act on that understanding”. One 14 year old commented “The people I speak to should do more than listen, they should act on it too.” The researchers concluded that each child should have a support plan and their voices should be heard. They found that children did not want their words interpreted by adults and translated into what was thought to be in their best interests. They wanted to know that their own words and views were heard by decision makers.  One 15 year old longed “For people to not twist words”. Another nine year old said “I want someone who can listen to me and take things to court properly”.  The report also highlighted the dilemma children faced – they were acutely aware of the emotional impact of family breakdown on their parents and consequently expressed anxiety about making their views known.

The Children’s Rights Director for England also investigated children’s views on the recommendations of the Family Justice Review.  The Director concluded “children should be asked more often for their opinions – and listened to more”.  Many children who had been to court did not think the courts listened enough to them.  They also highlighted the importance of building trust with the professionals around them – “you need to feel comfortable with them”.  The children felt strongly that they should be allowed to express their views (rather than have someone speaking for them) because when adults spoke on their behalf, they often didn’t say what the child wanted them to say.  A few acknowledged that court could be a scary place for a child and that “you shouldn’t have to go if you don’t want to”. But what was important was being given the choice of whether or not to be involved in the court process.

This is all powerful evidence of a real desire by children to have their voices heard in. My next article will examine whether the current law supports this view.

REFERENCES

• Family Justice Review: the children’s verdict.  Children’s views on the recommendations of the Family Justice Review Panel, 2011.  A report by the Children’s Rights Director for England.
• Time to listen to children.  Personal and professional communication.   Edited by Pat Milner & Birgit Carolin.  2010
• New families, new governance: international perspectives on hearing and listening in family regulation.  Gillian Douglas and Members of the Network on Family, Regulation and Society.  Family Law May 2013.
• Taking a longer view of contact: The perspectives of young adults who experienced parental separation in their youth.  Jane Fortin, Joan Hunt & Lesley Scanlan. 2012
• The Voice of the Child in Private Law Proceedings.  Nicholas Anderson, 1KBW.  November 2012
• Do more than listen.  Act.  Consultation response to the Family Justice Review undertaken for the Family Justice Council’s Voice of the Child sub-group.  Office of the Children’s Commissioner.  July 2011.
• The Voice of a Child in Family Law Disputes.  Patrick Parkinson & Judy Cashmore.  2008
• The Changing Experience of Childhood.  Families and Divorce.  Carol Smart, Bren Neale & Amanda Wade.   2001
• Children’s Rights in Practice.  Edited by Phil Jones & Gary Walker.  2012

This article first appeared in Solicitors Journal, February 2015.