22 May 2020 - Article
The Victorian maxim, 'children should be seen and not heard' is now a thing of the past. Times have significantly moved on. The Court of Appeal has ruled that the child's entitlement to a voice is a fundamental procedural principle in our system. This should come as no surprise. On a domestic level, developments in case law together with the Final Report of the Voice of the Child Dispute Resolution Advisory Group produced in 2015 have acknowledged the need to give children participating in UK proceedings a greater voice. In a wider context, the UN Convention on the Rights of the Child obliges Member States to give a child capable of forming their own views an opportunity to express them, and the new provisions of Recast Brussels II proposes to extend this as a minimum standard across Member States of the EU
It makes sense that in children proceedings the child should have an opportunity to express their views but the more complicated question is just how much weight should we be placing on the child's wishes and feelings? To what extent is the child's view really his/her own and how do we deal with the universal parenting dilemma that sometimes what a child says they want is not what they actually mean or need?
The child's voice: a fundamental principle
The recent case of Re D  EWCA Civ 12 confirmed that 'in every case, the court is required to ensure that the child is given the opportunity to be heard… the rule of law in England and Wales includes the right of the child to participate in the process that is about him or her.' Here, the Court of Appeal was concerned with the question of enforcing a Romanian custody order which had been made without the Romanian court making a direct or indirect enquiry of the child's wishes and feelings. The child in question (David) was eight years old at the time that the father was seeking to enforce the Romanian order for the child to live with him but the Romanian proceedings had been in train for several years before the final decision was made.
Throughout its decision making process the Romanian court did not provide David with the opportunity to be heard – at one point the father suggested that his son's feelings and wishes should be assessed and made available to the Romanian court, but the mother objected to this. In looking at whether or not to enforce the Romanian order, the English court made it clear that 'the fact that the mother opposed David being heard is neither here nor there. The obligation to hear the child falls on the court and not the parties.' (2014 EWHC 2756)
The moral of Lord Justice Ryder's judgment rings loud and clear – children must be given a voice in proceedings which are about them, but it is up to the court to decide what form that voice should take and how much weight should be attributed to it.
The child's voice: how we listen
Section 1(3)(a) of the Children Act 1989 enshrines the fundamental principle that the court must have regard to the ascertainable wishes and feelings of the child (considered in the light of his/her age and understanding) when engaging in its decision making process. There is a range of options available to the court in undertaking this exercise. The most common is for the child to have an interview with a specially trained court appointed officer from the Children and Family Court Advisory and Support Service (Cafcass) who will usually also want to see the child in the company of each parent and will then relay their findings to the court in a report. In some cases the judge will meet with the child, and only in exceptional cases will the child be separately represented in the proceedings by an appointed guardian. The decision as to how a child is to be heard will depend upon the child's age, maturity and the individual facts of the case.
The child's voice: a mouth-piece?
Once the court determines the way in which it is to hear the voice of the child, the next stage is to consider what weight should be attached to the child's wishes and feelings. How is the court able to determine if the child is acting as a ventriloquist's puppet or expressing their own views? Parenting is a demanding role at the best of times. Relationship breakdowns are complicated and often fraught with emotion. Parenting, and especially co-parenting, through relationship breakdown is all the more challenging. It is an unfortunate reality that children often become part of the armoury of warring parents and can absorb any negative feelings towards the other parent by osmosis. In more extreme situations parents may actively seek to create hostility from the child towards the other parent. Whether active or passive, children can become entrenched in their views as a result of parental alienation and form negative impressions of one parent so as not to want to have them as part of their life. These views, which in alienation cases may have been created through a sophisticated process of manipulation (whether express or subconscious) can cloud the purity of the child's voice when expressing their wishes and feelings to the court.
Uncovering the child's true wishes and the reasons for expressions of negativity is a complicated and sensitive exercise, and which in a world where court-time is becoming ever more limited, can mean that these issues get missed or that they are not dealt with early enough or sufficiently thoroughly. Reversing the damage caused by alienation can be even more difficult and in some extreme cases the court may order for there to be a change of resident carer so that the child is no longer exposed to the constant damaging views of the alienating parent. Families where alienation has taken place often require ongoing therapeutic support to limit its detrimental effects and prevent further exposure to harm.
Where the court is asked to intervene to act in loco parentis, it is necessary for the court to do exactly that and to act as a parent. Children need to feel that they have a voice and a part to play in their own destiny but equally they require the comfort of knowing that there is ultimately an adult present who is able to make decisions for them in their best interests and who is able to cut any puppet-strings which may be in play.