When parents separate, a common concern is about how their child’s thoughts and feelings about their future living arrangements can be taken into account.
The two key factors which impact the ability of a child’s voice to be heard are their age and maturity, as well as their parents’ relationship following separation. As a child gets older and more able to express independent views, they should be able to express themselves and know that they have been heard and that their views are being taken into account. How this happens depends on what help or support parents seek through separation.
If parents are able to speak freely to one another, then one option is to speak to their child together. In this way a child is able to play a central role in how their living arrangements evolve. Cafcass provides helpful guidance for parents about listening to their child’s voice here. Another helpful website is oneplusone, in which parents can watch video clips that give guidance entitled ‘Getting It Right For Children’, and Seeing It Differently’: https://www.oneplusone.org.uk/our-resources.
If parents are not able to agree the arrangements for the future directly in this way, then it might be that they are able to use mediation to assist. Children and young people aged 10 and above should be offered the opportunity to have their voices heard during mediation, if they wish. In child inclusive mediation the child can speak with the mediator and talk about any concerns or worries they have. Younger children are not excluded from having a similar opportunity as older children. However, whether this is appropriate will depend on the specific child. If a child does not wish to meet the mediator, they are still able to part of the process to some extent - the mediator will ask the parents questions to help them see things from their child’s perspective.
If parents need to ask the court to help them with decision making about their child’s future living arrangements, or about a discrete issue such as choosing a child’s school for example, the court must take account of a child’s ascertainable wishes and feelings (in light of their age and understanding). The United Nations Convention on the Rights of the Child states that a child should be given the opportunity to be heard in any court proceedings, either directly or through a representative or an appropriate body (Article 12). How does this happen in practice?
If an application for a court order has been issued, the child's view may be communicated to the judge in one of a number of ways. One way is by a Cafcass officer who is appointed to prepare a report (known as a section 7 report) for the judge which sets out the child’s wishes and feelings. In order to prepare such a report, the Cafcass officer will meet and speak with each parent, but also with the child. Their thoughts and feelings will be explored and fed back to the court in the report. The Cafcass officer will also often attend court hearings and answer any additional questions the judge may have about the child and their views. You can read more about the role of Cafcass here.
Another way that a child may be able to communicate with a judge is by writing a letter to the court. Alternatively, in limited circumstances, it might be appropriate for a child to be made a party to the proceedings. This might be appropriate if there is a great deal of conflict between parents, or a particular area of complexity, such as if a teenage child has views that differ from their parents’, the court may direct that a child is separately represented. The child will then have their own Children’s Guardian to help them. This is an independent person who represents the child’s views and positions. The Children’s Guardian will appoint a solicitor to act for the child in court.
Another way that the judge may hear from a child is by meeting with him or her. These meetings are subject to strict guidelines and will not be used for the judge to take any evidence from a child. However, such a meeting can be useful to help ensure that a child feels more involved and connected to proceedings.
In certain cases it is possible for a child to give evidence in proceedings. There are guidelines in place to ensure that the possible advantages of a child giving evidence are balanced against the possible risk of harm to a child of doing so.
Overall, how a child’s voice is heard during their parents’ separation will depend on the child’s age and maturity as well as the type of help their parents seek. Ultimately, whatever method is used, the focus should always be on ensuring that the child is involved in an age appropriate and sensitive way.