Will The Court Listen To My Child?
- NeilAndrewsMckenzie
- May 22, 2023
- 6 min read
The Voice of the child
One of the questions I’m asked most frequently about by the clients that I advise is whether or not the court will listen to their child. The short answer is yes. The longer answer is that it depends.
Will my child be questioned in court?
If your imagination is picturing a small child stood in the witness box casting the deciding vote over which is their preferred parent then I can almost entirely assure you it doesn’t happen. I say ‘almost entirely’ because there will always be an exception (being a family law practitioner gives a constant reminder of this) but in the many hundreds of hearings I have personally attended the prospect of putting a child on the stand was only even mentioned just once. In this case it was summarily dismissed as an unthinkable proposition. Courts will go to great pains and efforts to prevent this eventuality - as so they should. The extreme heartache of even just the prospect of this should be enough to make anyone see it as a dire last resort. Indeed – the impact that something like that would have on a child is unimaginable.
During proceedings the court has a duty of care to the child above all else due to the child welfare principle (s1(1) Children Act 1989) which states “when a court determines any question with respect to [a child or their property] the child’s welfare shall be the court’s paramount consideration”. With this in mind it is hard to imagine any scenario where such a horrendous experience for a child would be paramount to the child’s welfare.
So, when will my child’s voice be heard?
Despite what some might think it should be, it’s usually not until some way into proceedings that the children will be first spoken to. Unless Children’s Services are already involved with the family in an open case then it will be a CAFCASS officer that speaks to the children, and this will be almost always as a part of a section 7 report. This is (in brief) a report that the court orders when it needs some consideration about who should have contact with the child, and when, in light of the various facts of the case. One of the factors considered is the views of the child as can be ascertained in light of the child’s age and understanding.
What will be asked of my child?
As I said in the previous paragraph the CAFCASS officer will attempt to ascertain the views of the child as can be ascertained in light of the child’s age and understanding. This is found in the child welfare checklist (s1(3)(a) Children Act 1989).
It’s worth breaking down this sentence in detail because it’s not merely advisory, it’s statutory law.
“Views of the child…”
Part of the CAFCASS officer’s job is to establish whether what the child says is based on their own view, and to what extent this may be influenced by other people (particularly a resident parent with whom the child may spend the majority of their time). This is tricky because of the consideration of any parental alienation that may have taken place that affects those views offered. Yes, there is controversy surrounding the term parental alienation / alignment / enmeshment, but whilst it is something that CAFCASS consider then so must legal professionals and users of the family court. I will not be elaborating on the validity of the concept of PA here as it is beyond the scope of this blog.
“…as can be ascertained…”
It isn’t just conversations between the child and CAFCASS officer that can take place. Children may be asked to draw a picture or complete diagrams pertaining to their family life and the two households.
Examples
“…in light of their age…”
This is possibly one of the most misunderstood areas and is frequently overlooked by others. It is accepted that children get more mature as they get older of course, but I’ve witnessed many members of my Facebook group assure other members that (for example) their child is a very mature 4-year-old whose views should be accepted wholly and conclusively. Whilst CAFCASS would listen to their views it’s unlikely that any weight would be given to their expressed views due to their age. At 11 and onwards weight starts to be added to the child’s voice, and by 14/15 (depending on perceived maturity) their voice becomes a dominant factor (more on the other factors that are considered below).
“…and understanding”
Being ‘Gillick competent’ is how CAFCASS will determine the level of understanding the child has about their circumstances and their expressed views. Gillick competency is what is used to consider whether a child is mature enough to consent to medical treatment in their own right, in full awareness and understanding of the consequences. It is that last part - in full awareness and understanding of the consequences - that is vital here. Whilst a child when put on the spot may express the view that they don’t wish to see one of their parents then unless they’re considered Gillick competent then CAFCASS will not consider this to be conclusive. After all, as children, many of us as children did NOT know what was best for us, especially in the long term!
Can I be there for the interview?
In short, no, that would be highly unusual. As we have found above the idea of the meeting is to ascertain the child’s own view, so having one of their parents in the same room is unlikely to see the child giving honest and uninfluenced views. In many cases the meetings take place at the child’s school.
There would have to be an extremely compelling reason for CAFCASS to allow a parent to be with the child for the meeting.
What is the context of the child’s view?
As highlighted above, the child’s view is a part of the child welfare checklist, and the relative weight of it will be quite variable. If we look at the rest of the checklist there are other factors which are seen as just as important, and case dependent can often be even more important than the child’s voice.
Their physical, emotional and educational needs
The likely effect of any change in their circumstances
Age, sex, background and any other characteristics the court considers relevant
Any harm suffered or at risk of suffering
The parenting capability of each parent
The range of powers available to the court
Particularly important is the harm suffered or risk of harm. This has been made even more important of late due to the Domestic Abuse Act 2021 because a child who has witnessed Domestic Abuse between their parents is also now considered to be a victim of that abuse in their own right.
Recommendations by CAFCASS and indeed orders made by the court MUST take all of these factors into account. It is such an important statutory consideration that you can absolutely challenge the court directly about how any particular aspect has been considered when they make a decision.
Some group members have asserted that it was their child that chose the contact arrangements that are in place. As per above it’s almost certainly not the case – it’s highly likely not to have been the deciding factor unless the child was 15/16, and therefore considered entirely capable by the courts of making their own decision in full awareness of the consequences.
Why does the court not speak to my child straight away, and why are they not always spoken to?
At the start of this blog, in answering whether children are always spoken to, I said ‘it depends’. Simply put because unless the court decides it is required, it is preferable that the children aren’t involved at all. In determining this the parents are the first port of call, and are asked first of all about safeguarding issues via the CAFCASS safeguarding phone call. Rightly therefore, children being spoken to is considered later.
Need further advice?
To discuss your case individually and to see how your child’s voice might be considered by the courts, and indeed for any other child arrangements issue then please book a 1:1 telephone consultation with me at calendly.com/firstfamilylaw or contact me at contactneil.co.uk
Nothing in this blog should be taken as legal advice. This is generic advice given based on my experience as a McKenzie Friend of several years practicing. All cases vary.
댓글