Member Article

As we continue through Lockdown 3, we are seeing how children can be caught in the middle of family disputes involving separated parents trying to navigate living arrangements between different family bubbles.

With that in mind, it appears to be more important than ever within the context of private law children proceedings for the courts and authorities to be alert to the views of the children when determining what should happen.

A child’s right to be heard

The notion of a child’s right to be heard is enshrined in legislation, namely Article 12 of the United Nations Convention on the Rights of the Child (UNRC) 1989, which stipulates the rights of children to have their perspectives taken into account in legal proceedings that affect them. In England and Wales, the family courts refer to the Children Act 1989, which provides us with the welfare checklist – a list of factors which a judge can consider when deciding what is in the child’s best interests.

Section 1(3) of the Act requires that the courts consider “the ascertainable wishes and feelings of the child concerned”. These are considered in light of the child’s age and understanding and subject to the first principle that the welfare of the child should come before and above any other consideration in deciding what order to make.

One of the most controversial challenges faced by the judiciary and authorities, however, is just how much weight is to be given to a child’s expressed wishes and feelings. This was a debate which was addressed in the Ministry of Justice Report published in June 2020, “Assessing Risk of Harm to Children and Parents in Private Law Children Cases” .  So much will depend on the circumstances of the case in question. For instance, key factors will include: the age of the child(ren); the family history and dynamics; and if there are any perceived risks to the child(ren) posed by one or both of the parents.

A recent Shoosmiths case

This challenge was presented in a recent court case, in which the Shoosmiths family team was involved. We represented the Mother who sought an order that her two teenage children should live with her, whereas the Father sought an order that the children should live with him. The court hearing was the culmination of an acrimonious divorce and years of bitter legal disputes between the Mother and Father in two different countries. The two teenage children both expressed the clear and consistent opinion to the court-appointed Cafcass reporter that they wished to live with the Father. Cafcass acknowledged their wishes and feelings and recommended that the children’s views should be followed, and they should live with the Father. The judge, however determined that Cafcass had erroneously applied too much weight to the children’s wishes and feelings.

This may seem surprising at first glance however the judge was concerned that, when interacting with the children, Cafcass had given insufficient consideration to the background history of the matter. In particular, there was evidence of sustained instances of coercive behaviour and parental alienation  on the part of the Father. The judge in this case emphasised the importance of acknowledging a pattern of behaviour over a long period of time on the part of the Father and how this had unduly influenced the expressed wishes of the children.  It was ultimately ordered that the children were to live with the Mother.

This case shows that, regardless of how vital it is that the courts listen to the voices of the children involved in these disputes, it is equally important for the court to appreciate the bigger picture and be alert to the potential reasons why the children are expressing particular views. As the judge indicated in this case, the children’s views were most definitely listened to by the court, but it is not the court’s role to merely agree with those views. Rather, it is the court’s role to decide on a balance of probabilities what is in the best interests of the children.

To discuss how Shoosmiths might be able to help you with problems regarding any private children law matters please feel free to get in touch with our family team on 03700 86 8300.

 

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