Parents in cases involving disputes about children will often feel that it is important that the children’s views are taken into account, rather than have their views ignored by the grown-ups. Can I get the judge to speak directly with the children is a frequently asked question. The law recognises this. It says that children’s views will be taken into account in light of their age and understanding. Therefore, a child aged, say, 5 years old, is not likely to have any weight attached to his or her views, whereas a child of, say 13, will find that the court will take into account his or her views, albeit that the child’s views will not be on the only factor that the court will take into account.
Older children may find that their views are the determining factor. It is relatively rare to see disputes about children aged between 14 and 16 being dealt with at court, as the court will often take the view that it cannot make a child of that age do something which he or she does not wish to do. (The court cannot usually make orders about children aged 16 or above). Judges will often be very reluctant to speak directly to a child. They generally prefer to leave that to people who are better trained to do so – the CAFCASS Officers. (We have more information on Cafcass in this section of the hub.)
At an early stage in any application to the court (usually at the First Hearing Dispute Resolution Appointment), the court will consider whether or not it should order that a section 7 report be prepared, in order to provide the court with independent recommendations about what it might be ordered. These reports (which grizzled older solicitors and barristers sometimes still refer to as Court Welfare Reports) are usually prepared by the CAFCASS Officer.
Sometimes the only thing that the CAFCASS Officer has to address in his or her report is what the child’s wishes and feelings are. The Cafcass Officer will not simply parrot what the child says. The Officer will speak to the children about what they want and will also bear in mind that it is common for children who are at the centre of disputes to be telling each parent what they want to hear, rather than what the child actually wants. Experienced CAFCASS Officers can be very good at getting to what the child actually wants.
There are a small number of cases where a judge will talk directly to the child in a case. One judge, Mr Justice Peter Jackson was praised in 2017 by family lawyers for the sensitive and intelligent way in which he wrote a letter to a child in order to explain his decision to the child – you can read the letter here.
Mr Justice Jackson has even used emojis in such letters to help communicate with children about their cases. However, he is somewhat unusual in his approach. Most judges prefer not to speak to the children direct and rely on parents to explain the court’s decisions to their decisions.
Jon Armstrong contributed to ‘Separation With Children 101’, 3 edition, (Bath Publishing 2023).
