In recent times there has been a growing impetus in the courts to consider the wishes of the child in all court proceedings concerning children, including relocation proceedings, as a matter which will directly impact him or her, rather than as a “passive recipient” of a judgement passed down by the court. There is now a keener appreciation of the child’s autonomy and his or her right to take a key role in the decision making process. The courts approach is rapidly evolving in the UK to bring us more in line with our European counterparts in terms of considering the wishes and feelings of the child and how to best represent the views of the child within proceedings.
Government Commitment
In February of this year government former Liberal Democrat Justice Minister Simon Hughes signalled further that children will have a greater say in family court cases when he addressed the Family Justice Young People’s Board and said: “For too long, children and young people have struggled to have their voices heard during the family court process. Although they are often at the centre of proceedings, the views of children and how they feel are often not heard, with other people making vital decisions for them.” This view is now being promoted in out of court dispute resolution services, such as mediation, which it is envisaged in the future will also become more inclusive of children. Under the new rules children will have the chance to speak to a judge and make clear their views. The Judge will be able to conduct a limited evaluation by inviting the child to speak to him/her in private. Before doing this, the Judge will discuss this with the parties to the case and also someone known as ‘the Children’s Guardian’. The ‘Children’s Guardian’ is an independent officer who is responsible to the court on behalf of the child. Their role is to investigate the child’s circumstances, to represent the child’s best interests, and to advise the court about the child’s welfare and any other relevant matters in order to assist the court to decide whether any further expert assessments are needed and whether the parties positions match the child’s specific needs.
Judicial Guidelines
In addition to the above, the long awaited Report of the Vulnerable Witnesses & Children Working Group was also concluded in February 2015. Within it are the final recommendations/guidelines on children and vulnerable people meeting Judges in the family courts and how they should give evidence. Some of these are set out below: i) If the child wishes to meet the judge but the judge decides that a meeting would be inappropriate, the judge should consider providing a brief explanation in writing for the child. ii) If the meeting takes place prior to the conclusion of the proceedings – (a) The judge should explain to the child at an early stage that a judge cannot hold secrets. What is said by the child will, other than in exceptional circumstances, be communicated to his/her parents and other parties. (b) The judge should also explain that decisions in the case are the responsibility of the judge, who will have to weigh a number of factors, and that the outcome is never the responsibility of the child. (c) The judge should discuss with the child how his or her decisions will be communicated to the child. (d) The parties or their representatives shall have the opportunity to respond to the content of the meeting, whether by way of oral evidence or submissions.”
Age of the Child
The reality is that these changes are aimed at children aged ten and over and the majority of children in such proceedings will be below this age. In fact, statistically only 14% of children in private family proceedings are above the age of ten, with children having a mean age of 4.5 years. This age barrier is not set in stone, however, as one child does not have the maturity and understanding of another. A child younger than ten can have very set views on what they want for their future and with whom and where they wish to live. Are the Views Expressed those of the Child? Children are impressionable and often open to adult influence. It is sometimes hard to discern whether the views being expressed are taken from a script prepared for the child by one of the parents or whether the child is guided by loyalty or fear of hurting their parent by saying the wrong thing. For those reasons the child might not be as forthcoming or outspoken with their true views, they may be feeling nervous or afraid or might simply be overwhelmed by what they perceive to be a strange and alien situation. Children’s Guardians understand, recognise and are trained at identifying such issues in court proceedings. They are adept at picking up adult ‘turns of phrases’ and will explore a child’s views to gain a better understanding on why they have formed a particular view. Clearly despite a child expressing clear wishes the Children’s Guardian mat formulate different recommendations and a court can take a very different view of what is in a child’s best interests.
In Conclusion
It certainly seems that the courts are moving away from the old proverb that ‘children should be seen and not heard’ where they were treated as silent witnesses in all children cases rather than the central protagonists. It would therefore seem that the system is moving towards a more child-inclusive approach in relocation cases and children cases across the board. There is still a great deal of progress to be made in this area, but the voice of the child in children cases continues to gather momentum.
If you are a parent considering a move overseas and need more information and advice please contact me on natalie.friday@london-family-solicitor.co.uk or telephone number 020 3755 3151 and I will be happy to assist.
Written by Natalie Friday Family lawyer.
PHOTO: KATSUHITO NOJIRI
See this article on divorcedparents.co.uk