The importance of the child’s voice in family law disputes
21 October 2024
A judgment was published this week (Mother v Father [2024] EWFC 252 (B)) which involved the child arrangements for four children aged 14, 13, 11 and 9 who lived with their father since 2016 and had not spent any time with their mother since 2018.
At the conclusion of the final hearing, the judge in the case, Her Honour Judge Suh, made an order preventing the mother from applying back to the court for a child arrangements order to spend time with the children for three years.
Whilst this is a seemingly Draconian order to make, it was made against the backdrop of the children making it clear to a Cafcass (Children and Family Court Advisory and Support Service) officer that they were tired of being ‘bothered’ by professionals and wanted to continue to lead an undisturbed life with their father.
The children had rejected gifts from the mother and efforts by her to make contact and, ultimately, the judge considered that attempts by the court, or anyone else, to force a relationship would end up pushing the children further away.
The decision must have been incredibly difficult for the mother and, not wanting to shut the door on the children reaching out to their mother of their own volition, the judge took an unusual step of writing a letter to them.
The letter highlights the significance the Judge placed on the children’s wishes in reaching her decision. Generally, children should be protected from being directly involved in contentious proceedings as far as possible, but, where the children are of sufficient maturity and understanding to express their views, it is important that they feel heard by the tribunal tasked with making a decision about their young lives, whether that be a judge, arbitrator or bench of lay magistrates. The Judge’s letter is written in child-friendly and accessible language to help the children understand the decision reached:
I have listened to your voices and have put you first in making this decision. The e-mails that your Mum is allowed to send are like a bridge towards a relationship with her if you want it. It is up to you whether you cross that bridge and decide to see her in future.
You only ever get one Mum in your life. She loves you all so very much and misses a relationship with you greatly. She has had a difficult time, and things have not been easy for her. “Well, things have not been easy for us”, you might say. You are right. Both of those things are true. But I want you to know that you are loved by your Mum. She is not perfect. None of us are. But you should know that she came to court not to upset you but because she genuinely does not want to lose the possibility of a relationship with you. I am clear that the choice of whether you want that relationship to develop, and when, is yours.
Time will tell as to whether this practice is adopted more widely by the judiciary in the future.
A non-court dispute resolution (NCDR) option with which children can be more actively involved is that of child-inclusive mediation. Child-inclusive mediation is a service that can give children a direct voice and the platform to express their wishes and feelings to both parents in an open and safe environment.
Unlike the traditional approach which primarily focuses on the parents themselves, this child-centred approach directly involved the children in the process. The parents and the children have separate sessions with a specially trained mediator. The children can share their concerns confidentially with the mediator and it is decided with the mediator what should be shared with the parents. The children can express their feelings, preferences and concerns to both parents simultaneously in a neutral and amicable setting.
Child-inclusive mediation is not a widely known option, and as a result, some parents may overlook mediation without fully understanding the different types of mediation processes available. It is a vital tool in offering an effective way to resolve disputes that directly takes into account the children’s wishes and feelings which often leads to the creation of more harmonious and sustainable outcomes for families in the long term.
The Birketts view
From the beginning, we encourage clients to explore non-court dispute resolution (NCDR) options for resolving disagreements about children’s welfare. This approach aims to adopt a positive and sustainable co-parenting relationship in the long term.
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The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at October 2024.