The Family Justice System, is committed to hearing the views of children and young people when their parents separate. The Family Law organisation Resolution as part of its Dispute Resolution week at the end of November 2015 has Children First as its focus. It also promotes a parenting charter which appears at the end of this article.
In 1989, the Children Act enshrined the “welfare” of the child as being of paramount importance. Discovering what the wishes and feelings of a child are has long been recognised as one element of this principle of the child’s welfare. In practice, it can be difficult to hear the voice of the child when the voices of the disputing parents are centre stage. The parents are the decision makers in a family unit. But when that family unit is disrupted, decision making is often more difficult.
This is where family law specialists are often called upon. Many parents look for initial guidance from a family lawyer. All parents in dispute are encouraged to be signposted towards getting advice that will keep them out of court wherever possible. Much work has been done to promote the CAFCASS website to provide families with information. The website also provides a parenting plan that parents can use to work out the details of what their children will need from each of them.
Parents are encouraged to consider mediation or a collaborative process to map out what options exist to overcome the difficulties that present when parents separate. Not every case is suitable for this style of dispute resolution but it is grounded in the principle that a court application should be the last resort. It is rare that a child will attend court because more often than not, going to court can be harmful to a child and their interests.
Mention court to a child and they are likely to be afraid. They commonly associate courts with criminals who have done something wrong. For the third year running, the Family Justice and Young Peoples Board has hosted an annual conference entitled “Voice of the Child”. The board has within its membership young people who have had experience of the Family Justice System as children. Their experiences are feeding into decisions that are now being taken about how to manage and ease issues for the child in family law proceedings.
Children and young people have reported that they often do not know what is happening or what will happen. One child in particular said “I feel like sometimes adults forget that our views are also important”.
Ideally each parent should listen to how the child feels and try to take into account those feelings in their decision making. This can be problematic when the parents disagree on what has happened or what they want to happen in the future. They can have their own vested interests in the outcome.
A distressed parent may find it hard to talk to their child. Any conversation should be age appropriate. Childcare professionals who are independent of the parents can be called in if need be.
The Dispute Resolution Advisory Group have put forward a number of recommendations, a small extract of those recommendations being listed below:
A common thread that runs through mediation, collaboration and court practice is that all the professionals and the parties involved in disputes should be listening to the children. If the parents can agree and find a solution that is best for their children, the court will not intervene. The court will only determine disputes where the parents cannot agree.
The court is assisted by a CAFCASS worker whose role it is to engage with the child or young person and ascertain their wishes and feelings and report that back. The way in which this work is being done is essential to promoting the child’s voice as some of the most vulnerable people in our society. Whilst a Judge can speak to a child within a case, it is extremely rare for him or her to do so. A Judge is far more likely to rely upon the CAFCASS officer who will have met the child in their own home and with their parents so they better understand the family dynamic and the interests and needs of each child.
The Resolution Parenting Charter encourages the parents to agree;
OUR CHILDREN HAVE THE RIGHT TO:
If you or a family member are experiencing issues that affect children and may need some legal guidance, the family law specialists at Whitehead Monckton can help you understand the steps that need to be taken and solutions that can be offered.
