The Children’s Commissioner has suggested that Children should be given a greater voice in Children Act proceedings. These are proceedings which determine the decisions regarding the arrangements for children where their parents cannot agree, or where the Local Authority are concerned that a child is not being sufficiently cared for. For example, the proceedings could relate to where and with whom a child should live, how often they should have contact with a particular person, and/or to resolve a specific issue in a child’s life such as where they go to school.
Currently a child’s wishes and feelings are usually reported to the Court by a Cafcass Officer. Cafcass stands for Children and Family Court Advisory and Support Service. The officer works with the child and family before reporting to the Court what they consider to be in the best interests of the child taking into account the wishes and feelings of the child.
As an alternative, the Court can appoint a Guardian to inform the Court of the views of the child, and the child would become a party to the proceedings, just like a parent for example. The Guardian would appoint a solicitor on behalf of the child to represent the child within the proceedings. If a child is older, and it is considered that they have understanding and capability to give instructions direct to a solicitor, a Guardian may not be needed, and the Court could decide that a child can become a party to the proceedings without the appointment of a Guardian.
However, the extent to which the Court will take a child’s wishes and feelings into account varies depending on the age, maturity and understanding of the particular child. The Court do not have to follow the wishes and feelings of a child but the older the child is, and the greater their understanding, the more influence this should have on the decision of the Court.
However, a recent consultation with 35 children and young people undertaken on behalf of the Family Justice Council reported that the children wanted a number of improvements to take place in family court proceedings. The children wanted:-
• Adults to have a greater understanding of the pressures that children face at each stage in the family justice process;
• Information provided to them in a child-friendly language and format; and
• Their own individual plan detailing how they would like to be supported and have their voice heard.
This highlights the important role which children play in family court proceedings, and it seems that children do want a greater voice in those proceedings. Sue Berelowitz, the Deputy Children’s Commissioner, said “we feel a strong sense of responsibility to [the children and young people] to ensure that they are indeed heard and the changes they request are made.”
Only time will tell as to whether changes will be made to the legislation and protocol which surrounds family proceedings to enable children to have a greater voice in litigation than they currently have. In our experience, children already have a significant voice in family proceedings. However, if you are concerned about the arrangements for your child following the breakdown of a relationship, or the Local Authority have suggested that they are concerned about the care of your child it is essential to take quality advice at an early stage.
Sarah Walls is a Solicitor in the Scown Family team. The top rated team advises clients on a wide range of family law issues including divorce, family finance and public and private children proceedings. We can also advise you how your children could be involved in any proceedings, and also have solicitors who are members of the Children Panel and Resolution credited, and who can be instructed direct by children who have capacity, or by children through their appointed Guardian.