Having considered the practice in other jurisdictions, and taking into account many older children’s perceived frustrations at decisions being made about them without their direct involvement, the purpose of the new guidelines is stated as follows:
“to encourage Judges to enable children to feel more involved and connected with proceedings in which important decisions are made in their lives and to give them an opportunity to satisfy themselves that the Judge has understood their wishes and feelings and to understand the nature of the judge’s task.”
This additional opportunity is not to replace “wishes and feelings reports”, but to sit alongside them as an option to pursue in an appropriate case.
It will be for the judge to decide whether to meet the child, having heard representations from the parties to the proceedings. The child’s chronological age will be relevant, but not determinative, as one of the factors the judge will consider. If the judge decides to meet the child, he/she will stipulate how the meeting should take place, and decide who should prepare the child for the meeting and accompany him or her. The judge will not see the child alone and will also need to tell the child that his or her views cannot be kept confidential, and that the judge must make a final decision having taken many different factors into account.
This option sits comfortably with Article 6 of the European Convention on Human Rights, which is the right to a fair trial and to be heard in respect of one’s civil rights. The balance will be in determining which children are of sufficient maturity and understanding to be given a voice, but at the same time to ensure the child is protected from exposure to potentially stressful proceedings between their parents.
Claire Molyneux