Will the family court listen to a child?

It is rare for a judge to speak to children during court proceedings, leading to the concern on the part of parents that their child’s wishes have not been ascertained or listened to.

It does not take the best London children solicitor to tell parents that what a child wants is not necessarily what a child should get. After all, how many parents know that their child would say that they do not want to go to school, do their maths homework or spend an afternoon visiting their grandmother when they could be playing football instead. A judge’s job is to decide what custody and access orders are in the child’s best interests taking a number of factors into account, including the child’s wishes.

When a court is making a decision about a child, for example, how much time the child should spend with their mother and father or if the child should go to a specific school that one parent is advocating and the other parent objects to, then the child’s welfare is the court’s paramount consideration.

The court also has to consider a check list of factors when making orders relating to a child:

• The ascertainable wishes and feelings of the child concerned, in light of his or her age and understanding; and

• The child’s physical, emotional and educational needs; and

• The likely effect on the child of any change in his/her circumstances; and

• The child’s age, sex, background and any characteristics the court considers relevant; and

• Any harm which the child has suffered or is at risk of suffering; and

• How capable each of the parents and any other person in relation to whom the court considers the question to be relevant is of meeting the child’s needs; and

• The range of powers available to the court.

In some children court applications one factor may carry more weight than others, for example, if one parent is not capable of meeting the child’s emotional needs or poses a risk of harm to the child, those concerns might outweigh other factors such as the strength of the child’s wishes.

The checklist is therefore a balancing exercise and it is often prudent to get the best London children solicitors advice before starting children applications for orders such as child arrangements orders or specific issue orders so that you are aware of the types of order that the court has the power to make, the factors that would be particularly relevant when the judge makes a decision in respect of your child and the likely outcome of any court application.

It is all very well for top London children solicitors to say that a judge will take a child’s wishes into account when making a decision about the child’s welfare but how does a judge know what a child wants if they are not interviewed or spoken to by the judge? Judges only see children in exceptional circumstances. That is not because judges do not want to hear what children have got to say but because not all judges have the special skills of interviewing children and, in any event, to do so in a court setting puts too much pressure on a child.

If there is a dispute between parents as to what the child wants, for example the child’s mother telling the court in her application that the child wants to move with her to Spain whereas the father is adamant that the child does not want to go, then a judge may order a report by an officer from the Children and Family Court Advisory and Support Service (CAFCASS).

A CAFCASS report is prepared on the order of a family court judge. The report is prepared by a family Court advisor who is independent of the court, social services, and health and education authorities. The family court advisor will have a social work background and is therefore thought to have more skills, than a judge, in listening to children in a non-threatening environment.

The family court advisor can either be asked to prepare a report limited to the child’s wishes or to report more widely on the child’s needs and best interests.

When assessing a child’s wishes the advisor may ask to observe a contact visit between parent and child as well as speaking separately to the child. That is because sometimes actions may speak louder than words as a child may have been encouraged by one parent to have a particular view but actions and expressions during an observed contact visit can reveal that they have a good relationship with their parent and the child’s stared wishes may therefore just be a reflection of the views of one parent rather than genuinely held views.

A CAFCASS report is therefore highly influential to the judge, whatever the child’s age. However the older a child is the more weight his or her wishes and feelings will carry with the court application.

Any parent would agree that no 2 children are the same so just because one 10 year old is able to clearly articulate what he or she wants does not mean to say that a 12 year old sibling is able to express what they want to a family and court advisor.

If a CAFCASS report is ordered by a judge, the advisor should look at and assess both the child’s age and their level understanding of the application before the court. Is the child, for example, saying that they do not want to see a parent because they know that the collection for contact on a Friday night causes a massive row between mother and father, and the child wants to avoid conflict rather than positively not wanting to spend time with the non-residential parent causes friction and trouble at home or is it a genuinely held view? Alternatively is a child keen to move to Spain with one parent because they want to spend their days on the beach they do not the emotional maturity to understand and appreciate what living and going to school in Spain would be like.

That is why children’s voices in children court proceedings need to be heard but also assessed and measured – after all do parents always listen when a child says that they do not want to see their best friend because they have had a falling out at school? There may be sympathy about the school argument but most parents will do what’s in their child’s best interests and look beyond a child’s immediate wishes if they do not think that they are in a child’s best interests.