Voice of the Child – Family Law Update

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The President of the Family Division has recently approved new guidelines which suggest that Judges should be prepared to meet children who are the subject of Court proceedings. The guidelines were prepared by the 'Voice of the Child' sub-committee of the Family Justice Counsel and will very soon be implemented by all Judges and Magistrates in England and Wales.

Children’s wishes and feelings have always been taken into consideration, but it has long been felt that children should not be subjected to the stress and emotions of Court proceedings, and as such it would be very unusual for a child to be asked to give their views direct to a Judge. Instead, Court Welfare Officers (known as CAFCASS Officers) are asked by the Judge to meet with the children, to discover their wishes and feelings, and report back to the Court. However many young children feel that their voices are not heard - they want to see the Judge, and expect that Judges should be prepared to hear what they have to say before making important decisions about their lives. The authors of the guidelines, Judge Clifford Bellamy, Judge John Platt and District Judge Nicholas Crichton argue for the need to protect children in participation, rather than protecting them from participation and say:

"We accept that when we meet with children we must ensure that they are not led to believe that they will be responsible for the decision made by the Court. We accept that we must not place them in the middle of their parents’ conflict. We accept that we must be honest with them about the problem of confidentiality. We accept that we must not make promises to them about the ultimate outcome. We accept that we must be alive to the risk that the views the child expresses to us may be tainted by the toxic influence of one or other of their parents. But in our opinion all of these point to the need for quality judicial training and not to the need to deny to the child who wishes to speak to us the right to do so."

It is proposed that a CAFCASS Officer will initially meet with the child involved in the proceedings and attempt to address the child’s needs, wishes and feelings. If, during that process, the child wishes to meet the Judge, then that wish should be conveyed to the Judge where appropriate. The primary purpose of the meeting with the Judge is essentially to benefit and satisfy the child, and ensure that the child genuinely understands that his or her feelings and circumstances are being properly considered. However, experts also think that a meeting between the child and the Judge will benefit the Judge and other family members.

The guidelines state that a child’s age will be relevant, but not the determining factor when deciding whether or not a meeting shall take place between the child and the Judge. It is accepted that some children of 7 years or even younger have a clear understanding of their circumstances and very clear views which they may wish to express.

It must be remembered by everyone involved that the child’s meeting with the Judge is not for the purpose of gathering evidence. That remains the responsibility of the CAFCASS Officer. The purpose is to enable the child to gain some understanding of what is going on, and be reassured that the Judge has understood him or her.

A DVD showing 3 children expressing their views will accompany the guidelines and will be distributed to all Judges and Magistrates in England and Wales. This could be the turning point for many families in understanding how their children feel, and it is hoped by everyone in the legal profession that it will assist Judges in making the right decisions for the children.

Emma Pearmaine is a Resolution member, a qualified collaborative solicitor and a member of the Family Law Panel. She has over 13 years’ experience as a Specialist Family Solicitor and is more than happy to answer any queries in relation to your family case.

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