Listening to the child involved in family court proceedings
Family law

Listening to the child involved in family court proceedings

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James Harbottle
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Listening to the child involved in family court proceedingsSandy Powell Partner and Solicitor - Resolution Financial Provision Accredited – Law Society Children Panel

Every year in England and Wales some 80,000 children are involved in court disputes between their parents over arrangements for the children (known as ‘private law proceedings’). It is of course absolutely essential that those children are listened to, where they are old enough, or mature enough, to express themselves.

They should be listened to not just for their views on what order or orders the court should make, but also to understand the effect upon them of being the subject of a court dispute.

There have recently been three developments in this area: two important reports have been published, and a new service has been launched by the Children and Family Court Advisory and Support Service (‘Cafcass’), which looks after the interests of children involved in family court proceedings.


The legal background

Before looking at these developments we should remind ourselves of the legal background regarding the participation of children in court disputes between their parents.

In all disputes between parents regarding arrangements for their children the court must consider a number of factors, set out in a ‘welfare checklist’. One of those factors is the ascertainable wishes and feelings of the child concerned, considered in the light of the child’s age and understanding.

The way that the court ascertains the child’s wishes is usually by appointing a Family Court Adviser from Cafcass, who will interview the child to find out their views, and recommend what order the court should make. In some cases a social worker or a guardian will be appointed, who will interview the child.

Other ways in which children may participate include writing to or meeting with the judge, giving evidence themselves, or engaging with experts, such as psychologists and independent social workers.


Two reports

Listening to the child involved in family court proceedings

The two reports were prepared by the Family Justice Data Partnership, a collaboration between Lancaster University and Swansea University, and published by the Nuffield Family Justice Observatory.

The first report examined the mental health needs of children involved in private law proceedings in Wales.

The report found that both rates of depression and the incidence of anxiety were higher for children involved in private law proceedings than children who were not.

Whilst these findings are perhaps not surprising, they do highlight the vulnerability of children involved in private law proceedings, and the need for the agencies that they engage with to be aware of the problem.

The second report looked at Cafcass data from England to see what it tells us about children’s participation in private law proceedings. The study found that in less than half of all cases that started in 2019/20 children had participated via a Cafcass officer, social worker or guardian.

It is rather disappointing to find that in most cases children do not have a chance to have their voices heard, but it should be pointed out that the data did not cover the other ways in which children may participate.


‘Hear to Listen’ – Family court proceedings

Listening to the child involved in family court proceedings

And so to the new service launched by Cafcass.

‘Hear to Listen’ is a new dedicated telephone line for children and young people, designed to share their feedback about the help and support they have had during their family court proceedings.

Cafcass says that the service “will give children the opportunity to share their views about how well we supported them, how effectively we listened and understood what life is like for them, and how that understanding influenced what the Family Court Adviser recommended in their report to the court.”

They go on: “We want to hear whether children understood our thinking, whether they felt able to influence proceedings about them and what we could have done differently and better. Our hope is that children will want to share their honest feedback with us in the comfortable space that is our ‘Hear to Listen’ phone line.”

Children can use the telephone line to contact Cafcass, during or after their proceedings to provide feedback, although if the proceedings remain live at the point Cafcass is contacted, the call will be directed to their Family Court Adviser, who will contact them directly to answer any question and/or to explain what is happening at that time.

Explaining the thinking behind the new service, Cafcass Chief Executive, Jacky Tiotto, said: “Our analysis of what [the children] and their families say to us informs our recommendations to the family court. Children’s feedback about how well we do this and what needs to improve offers us an unmissable chance to develop the best help and support we can offer.”

It must be hoped that significant numbers of children will take advantage of this new service, and that their feedback will indeed improve children’s experiences of private law proceedings.