The Government have decided to allow children to have a voice in the family courts.
Where parents are arguing over what is best for their children the Government will now allow the children themselves to voice their opinion direct to the Judge – rather than be interviewed by CAFCASS or ignored completely if no CAFCASS report is commissioned.
Is this a good idea?
Yes. The Government have selected the age of 10 because that is in line with other legislation – for example the criminal age of responsibility – if children are deemed old enough to take punishment for their actions they should be old enough to have a say in their own life.
A child’s wishes and feelings are one of the factors to be taken into account when the court determines what is in the child’s best interest. It is not necessarily determinative – a child not always knowing what is in their own best interest – for example most children would choose not to go to school or the dentist.
The factors taken into account are called the Welfare Checklist as detailed here Children Act Matters and include the following:
- The wishes and feelings of the child, in light of the child’s age and understanding.
- The child’s physical, emotional and educational needs.
- The likely effect on the child of any change in their circumstances.
- The child’s age, sex, background and any characteristics the court considers relevant.
- Any harm the child has suffered or is at risk of suffering.
- How capable each of the child’s parent’s (and any other relevant person in relation to whom the court considers the question to be relevant) is of meeting the child’s needs.
- The range of powers available to the court.
Baroness Hale (as she was then) in Re D (a Child), A Hague Convention case, explains the importance of the views of a child in general terms, emphasising that it is the child more than anyone else who has to live with the reality of any order that the court makes:
‘There is a growing understanding of the importance to the children involved in children’s cases. It is the child, more than anyone else, who will have to live with what the court decides. Those who do listen to children understand that they often have a point of view which is quite distinct from that of the person looking after them. They are quite capable of being moral actors in their own right. Just as the adults may have to do what the court decides whether they like it or not, so may the child. But that is no more a reason for failing to hear what the child has to say than it is for refusing to hear the parent’s views’.
The announcement of the legislation can be read here… Simon Hughes speech at the Voice of the Child Conference.