19th October 2017

Putting Children First: Should their views be heard in Court?

The reaction from most people to “Should children be heard in English family court cases?”, would probably be surprise that the question even needs to be asked!

However, the real question is not whether they should be heard (as surely it’s obvious that they should be), but rather how they should be heard.

Currently the role of CAFCASS (The Children and Family Court Advisory and Support Service) is to speak to the children and having heard their views, report back to the court. In a smaller number of cases a child is directly represented by a Guardian, who takes into account the child’s wishes, when presenting their case. However, those of us who have been family lawyers for longer than we would care to admit, remember the old days of wardship, when the Judge, where appropriate, would speak directly with the child concerned. It is this more direct type of communication between the child and the Judge which is under consideration.

Whilst it is easy to understand why some children would welcome an opportunity to put their views directly to the Judge whose role it is to decide their future, for others it may be just another source of anxiety and pressure in an already stressful situation. There is also the question of how the child’s view should be communicated to and responded to by the parents and other parties in a case, as if the child’s view is to be taken into account by the court when deciding what is in the child’s best interests (as clearly it should be, as otherwise there is no point in letting them speak to the Judge) then so too, must be the response of the adult parties in the case to that view.

As ever, what superficially appears to be an easy question to answer, just raises more difficult questions. However, that is no reason not to grapple with what is a crucial issue in cases involving the welfare and future of children.

If you would like advice on dealing with arrangements for children during divorce or separation or if you would like to discuss any other family law issue, we offer a free initial 30 minute meeting at any of our offices in Tunbridge Wells, Cranbrook, East Grinstead or Dartford. To make an appointment please contact Khaila Reid, Family Team Secretary on T: 01892 502 335 or E: KReid@bussmurton.co.uk

Melanie den Brinker

Melanie den Brinker
Partner