A June 2022 study by Nuffield Family Justice Observatory has looked at how children participate in private law court proceedings.
A child’s right to participate and have their voice heard in private law proceedings is acknowledged in legislation and guidance. The study looks at exactly how children are involved, and how often.
The significant ways a child can be involved in proceedings are a) where Cafcass or the local authority carry out a section 7 or 37 report; b) where a Guardian is appointed. A Guardian is appointed in rare, particularly difficult cases to represent the child as a separate party in the proceedings. The Guardian’s role is to give the court an independent view of what has been happening and what should now happen.
The Nuffield study found that 48% of all new cases that started in 2019/202 involved either a section 7 or 37 report, or the appointment of a Guardian. ‘So in over half of cases, it seems likely that children have very limited opportunities to have their voices heard while the court makes important decisions about their future.’ Sir James Munby, when president of the Family Division in 2015, said that children are ‘by and large, completely invisible in court.’
The current president, Sir Andrew McFarlane’s plans for reform of private law children proceedings include a commitment to amplifying the voice of the child within proceedings. The ‘Pathfinder’ courts in North Wales and Dorset which are trialing the new system are looking at different tactics including the preparation of a ‘child impact report’ before the first court hearing. The report will involve direct or indirect (for example by digital means or through a third party) engagement with the child to determine their circumstances and their own wishes and feelings from the outset.
These developments coincide with a new Cafcass initiative, launched this month called ‘Hear to Listen’. The service provides a dedicated telephone line for children involved in court proceedings to share their feedback about their interaction with Cafcass. Cafcass says: The ‘Hear to Listen’ 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. 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’.
It’s good then to see new emphasis, seemingly across the board, being put on children’s involvement in proceedings. These cases are, after all, entirely about their futures and surely it is only right that their voices are heard, that they should be visible in court.
A childs right to participate and have their voice heard in private law proceedings is acknowledged in legislation and guidance both as a way of informing welfare-based decisions and upholding their rights.