How can we protect children whilst giving them a voice during child arrangement decisions?

Family - 5 minutes read

Today is International Children’s Day, it is a day when the world comes together to celebrate children but also to consider how their welfare can be improved and protected. This focus on welfare is exactly what legal practitioners and Judges up and down the country strive to do every day when making decisions about the arrangements for children. This is, however, often at arm’s length from the children themselves.

It is still rare to see children actively included within proceedings about where they should live, where they should go to school and when they should see people. When they are involved, this is often managed by Children and Family Court Advisory and Support Service (Cafcass). Cafcass do fantastic work and have recently introduced new professional standards to ensure that their work with children and young people is the best that it can be.

In the words of Cafcass Chief Executive, Jacky Tiotto:

“Our ambition is that all children who need the support of Cafcass through their family proceedings, will have an exceptional experience with us. This means, taking the time to make relationships with them, to learn about what is happening for them, what they want and need for their futures. It also means making good assessments about what is safe and in their best interests, paying full attention to any harm they have experienced and understanding the risk of future harm that may exist.

Our intention is that all children understand why Family Court Advisers make the recommendations they do and that they have the opportunity to express a view about themselves in the reports that are submitted to the family court. The practice quality standards set down the expectations we have for Family Court Advisers working at Cafcass. They hold everyone to account in respect of our ambitions and responsibilities and their introduction is another important step forward in enabling us to continue to make further improvements in all that we do. I believe that is what children have the right to expect of us and I also believe it is what they deserve.”

Like many publicly funded organisations, however, Cafcass does struggle with funding and resources.

Children still rarely have their own independent representation within proceedings and as the stories in the “In Our Shoes” book (put together by the Family Justice Young Peoples’ Board) make clear, this can often leave children and young people feeling adrift from the process and decision making, wondering if their voices are really being heard. Since reading that book this is something that I have been reflecting on.

Traditionally children and young people were not included within the proceedings themselves as this was seen as a way to safeguard them from becoming embroiled in disputes between their parents. Whilst this may be helpful for younger children, is this actually helpful when we are talking about teenagers and pre-teens? Particularly when, at the same age children would be expected to fully engage with other types of proceedings about them, such as if they were ever a witness to a criminal offence.

Things are starting to develop in the Family Courts. It is now possible for parents and children to attend mediation to discuss matters. This “Child Inclusive” Mediation provides children (when they are of an appropriate age and level of maturity) to engage directly in the process and be part of the discussions about what should happen. It is likely that we will see more of this in the years to come, particularly if the requirement for parents to attend mediation to discuss arrangements before any application to the Court could be made, does become compulsory, as the Government is proposing.

At the other end of the spectrum, in a number of highly publicised cases recently Judges have taken it upon themselves to write directly to the children involved to explain the decisions that they have made about them, rather than relying on parents to update their children about this. This was particularly pertinent in a case concerning two children whose parents had been in proceedings about the appropriate arrangements for them.

The Judge took the time to explain the decisions he had made and why. He was keen to ensure that the children understood why he had made the decisions that he had and to reassure them neither of them had done anything wrong. This direct involvement and reassurance is a huge step forward but what else can be done?

This is still a step short of the children themselves being actively part of the Court proceedings about them. Should we be seeing more children involved in the proceedings directly? This comes with a myriad of practical challenges but if this is going to ensure that children are given a voice and that voice is heard directly, these should not be insurmountable.

There are, also simpler practical steps that can be taken now. One thing that really resonated with me from the “In Our Shoes” book were the number of comments about how children felt they had no one to talk to about what was happening, particularly on key days, like days when they knew their parents would be in Court. Often, we expect children to just carry on – attending school or clubs. It is not surprising that children find this difficult. I have certainly started encouraging my parent clients to ensure that the schools are at least aware of the relevant dates of Court hearings, so that they can offer additional support if needed.

Children can also find it helpful to have something that they can refer to, to help them understand the processes that are happening and also help them to manage their emotions. There is a wealth of literature available but some great starting points I always recommend are The Divorce Journal for kids by Sue Atkins, The Invisible String by Patrice Karst, Mum and Dad Glue by Kes Gray, and My Family is Changing by Pat Thomas.

Being part of the Family Justice Young People’s Board also provides teenagers with the ability to meet with others who have similar experiences to them and know how it feels. Perhaps there should be greater opportunity for children whose parents have separated to come together with other children and talk through their experiences?

Whatever the future brings it is clear that ensuring that children are at the centre of the proceedings about them is vital.

Talk to us

If you would like any advice on making arrangements for children then do not hesitate to get in touch with our highly experienced family law team.

We are dedicated to resolving matters as amicably as possible and every solicitor in our family team are members of Resolution which means we have a duty to reduce conflict wherever possible.