Will my child's voice be heard by the Court?

When parents seek court assistance for child arrangements, how are the wishes of their children considered? Solicitor Megan Porter explains how age, maturity, and Court-appointed professionals play a role in ensuring a child’s voice is heard. Read about the factors that influence these vital decisions.

When parents are forced to resort to the Court to help them make decisions on arrangements for their children, in private law proceedings, the Court’s focus is on the best interests of the children and their welfare which is of paramount consideration for the Court. It is enshrined in law that the Court shall have regard to the ascertainable wishes and feelings of the child concerned. This means that when the Court are making important decisions regarding a child, they must consider the views of the child, but how in practise can this be done?

Age

The age of the child plays a big factor in determining whether their wishes and feelings will be given any sort of weight by the Court. Of course, a baby or a toddler who cannot speak or form their own opinions cannot have their voice heard directly, but a Cafcass officer will assume that like any other child, all this child wants is to be loved, cared for and feel safe with their parents. The Court will also consider their wishes and feelings in other ways by looking at the welfare checklist. The welfare checklist is contained in Section 1 of the Children Act 1989 and lists factors the Court must consider when making decisions regarding a child such as their physical and emotional needs and the likely effect on the child of any change in circumstances.

Children between the ages of 5 – 10 will have their voices heard, however the weight the Court will attach to their opinions will unlikely sway the outcome of the case drastically. For example, if one parent is seeking permission to relocate to another country but the child is saying they will miss their school friends or miss their bedroom in their home country, this will unlikely be a determinative factor in the Judge refusing permission for the parent and child to relocate. The key decision is therefore whether the child is displaying mature views for their significant weight to be attached to their wishes and feelings.

Elder children in their teenage years are more likely to have their voice considered by the Court and have weight placed on this due to their age and level of maturity. For a child between the ages of 16 – 18, the Court are highly unlikely to make any orders for these children as they simply do not have the power to make orders in relation to a child aged 16 and above, save for exceptional circumstances, for example, a medical emergency. Age is therefore a key factor to consider when answering the question whether a child’s voice will be heard by the Court.

Section 7 Report

Once an application for a child arrangements order is made to the Court, the Court will appoint a Cafcass officer to speak to the parents and undertake safeguarding checks. It might be that after the initial safeguarding checks are complete, Cafcass recommend that a further, more detailed report needs to be done so that they can speak to the parents in more depth and to their children. This will help Cafcass form a recommendation on what the child arrangements should look like which will influence the Court in the making of an Order. The local authority can also prepare a section 7 report if they have had previous involvement with the family.

As part of their report, the Cafcass officer will meet directly with the child at home and have a short conversation with them, in an environment where they are most comfortable. The Cafcass officer will engage in activities that the child likes doing, for example, painting, drawing, or playing with their toys to ensure the child feels at ease to put their thoughts across. This ensures that the child’s voice will be heard as they will have the space to tell Cafcass their wishes and feelings which will be reflected in the final recommendation. The Cafcass officer will also offer children the chance to write a letter to the Judge direct with their wishes and feelings. In some cases, a Judge might meet with a child if they have expressed strong views, to reassure the child that the Judge will listen to their views and is going to make a decision, or after the case has been decided in order to explain the decision to the child.

Rule 16.4 Guardian

A guardian will be appointed to represent a child in cases where a child is made party to the court proceedings. This is common if the case is very complex, so the child needs to be separately represented to ensure their voice is heard. The guardian represents the child and will speak with the child directly about their wishes and feelings and with other professionals involved with the children. The child will be represented in Court before a Judge as the guardian will appoint their own solicitor and barrister to represent the child’s best interests and directly communicate with the Judge what it is the child wants.

Legal representation

If a child is old enough and mature enough to provide instructions and understand the nature of the proceedings, then they can be legally represented through their own solicitor. The solicitor will meet with the child to take their instructions and will appoint a barrister to represent them in Court.

As can be seen above, there are a variety of ways that a child’s voice can be heard in proceedings but ultimately the deciding factor on whether their voice will be given any weight in the making of a final order, depends on the child’s age and level of maturity.

Written by Megan Porter (Solicitor)

If you have any enquiries regarding a children matter, then please contact a member of our team on 020 8290 0333 or email info@judge-priestley.co.uk to speak with one of our solicitors in the Family Team. 

For further information on our Family Law services, click here.