Research has recently been conducted into how often we hear the voice of the child during private children proceedings. The report summarising this research, published by the Nuffield Family Justice Observatory, suggests that children are only able to participate in the family court system around half of the time. This means that despite the court making crucial decisions about a child’s life such as where they live and who they spend time with, children are not being given an adequate opportunity to voice their opinions.
When the family court deals with disputes about the arrangements for children, the children themselves are not automatically part of the proceedings and there’ s no universal method for children to express their wishes and feelings directly to the court. The primary way a child’s voice is heard is when the court orders a welfare report to be produced by either CAFCASS (the Children & Family Court Advisory & Support Service) or the Local Authority. However, these reports are not regularly ordered.
Parents and Judges often take the view that involving children in proceedings will inevitably see children exposed to conflict, however, there’s strong evidence to suggest that children’s participation in proceedings actually enhances their wellbeing. When children play a role in determining their own arrangements, those arrangements are usually more durable. Additionally, the evidence indicates that children want to feel included in the process and have their voices heard.
A key finding of the report was that there’s no correlation between a child’s age and the frequency with which they are included and heard in family proceedings. There is, in fact, very little difference between levels of participation in children as young as 2–3, and as old as 15–16-year-olds. The data demonstrates that our current systems are potentially failing older children, who are likely to have the ability and motivation to meaningfully contribute to decision making about their own lives, yet are not being given the platform to do so.
It's important to note that each family’s situation will be different, and there may be circumstances where it would be inappropriate for children to play a direct role in a court’s decision-making process.
Outside of court proceedings, there are other ways in which the child’s voice can be heard. At Mills & Reeve as well as acting in court proceedings, we regularly help ensure that children’s voices are heard through other ways of dealing with family disputes.
Child-Inclusive Mediation
One way to ensure that children are given a platform to share their wishes and feelings is to participate in child-inclusive mediation. This is a process where a mediator speaks to the children in a carefully planned and structured way to understand their thoughts and feelings. These are then shared with the parents in a separate feedback meeting. A child will not be asked to make choices about what they want but will instead be given a chance to be honest about how they feel without fear of upsetting their parents, or saying what they perceive to be ‘the wrong thing’.
Parents can use their children’s views to help them understand what the best decision for their children’s wellbeing might be. Participation in child-inclusive mediation helps children to feel like their wishes and feelings matter and are being taken into account. Studies have shown that the majority of children and parents who have undertaken the child-inclusive mediation process speak positively about their experiences, citing better understanding of their own situations, enhanced family communication, and feeling happier with the contact arrangements that were ultimately made as a result of the process. Alison Bull, Partner at Mills & Reeve, is a fully trained and qualified child-inclusive mediator.
Arbitration
If an agreement cannot be reached using mediation, arbitration could be a suitable alternative way to resolve matters. Arbitration is a form of judging that takes place privately, with an arbitrator appointed instead of a judge. Arbitrators are typically highly experienced lawyers. Family arbitration can be a more flexible and less formal process than going to family court and has the benefit of being able to take place much more quickly than court proceedings. In arbitration, children’s voices can be heard and listened to in an appropriate manner depending on the circumstances.
Mills & Reeve have a number of lawyers specifically trained in children arbitration including Alison Bull, Suzanne Kingston and Jane Ingleby. If you want to find out how our team can support you, contact us today.
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