Should children be heard in English family court cases?
Children, campaigners and some judges are calling for a change in the law so that children at the heart of family cases in England and Wales can talk in private to the judge if they so choose.
More than 100,000 children were involved in family court cases over the past year, according to the guardian service Cafcass.
Many are at the centre of bitter fights – either between their parents or between their families and local authorities. The decisions made will have a fundamental impact on their lives.
Yet they do not give evidence directly, nor routinely meet the judge.
Instead, Cafcass asks them about their wishes and feelings and reports to the court.
This is intended to protect the child – but many children are unhappy with this, and feel they don’t have a voice. It can mean they distrust the process and won’t support the decision made.
At a recent conference the president of the Family Division, Sir James Munby, said it always struck him as curious that children were “invisible” in family cases.
Article 12 of the UN Convention on the Rights of the Child states children are entitled to:
- hold an opinion
- be given the opportunity to express that opinion
- know their opinion has been taken into account
Oscar, now nine, is one of the youngest members of the Family Justice Children and Young People’s Board. It is made up of 40 people now aged eight to 25 who were or are children in family cases.
At the age of seven, Oscar was the subject of a court fight between his parents over where he should live. He said he worried terribly about it, couldn’t concentrate at school and would watch the clock, wondering what was happening in court.
He asked to meet the judge. After a brief tour of the courtroom, they talked about the case for an hour.
“I told him what I thought of the situation and what I wanted. Because it is actually about the child, in this case, me.”
He is convinced the meeting made a difference, that he was listened to. The judge supported the outcome Oscar had asked for.
For years, district judge Nicholas Crichton argued children should be given the right to talk to judges privately if they wanted.
In 2010, he was asked to draw up guidelines for judges to support this.
Since then, a working group of senior judges has been looking at the issue, including considering whether children should give evidence in court.
And in 2014, the then Justice Minister, Liberal Democrat Simon Hughes, promised to change government policy.
But earlier this year, in response to a Freedom of Information request, the Ministry of Justice told campaigner Natasha Phillips the plan had been shelved.
Lord Justice Jackson was one of the most high-profile judges in the Family Division and has recently been promoted to the Court of Appeal.
Last year, he heard the case of a young girl dying of cancer who wanted her body cryogenically frozen.
She was too ill to come to court, so he visited her in hospital instead, and decided to allow the freezing to go ahead.
The girl was thrilled with his judgement and called him “my hero”.
He also published a separate judgment in simple language so the children in the case could fully understand it, and recently wrote a letter directly to a teenager who had brought a case asking to live with his father.
Lord Justice Jackson told BBC Radio 4’s Today programme not every child would want to meet the judge – for some that could be intimidating, even harmful – and such meetings needed to be carefully planned.
“You want to make sure that the child leaves the room feeling better than they went in,” he said. “that the child or young person feels better for knowing who is making decisions about their future.
“And so therefore you have to think carefully about what the conversation should touch upon – sometimes what it should not touch upon – and prepare yourself properly for a meeting of that kind.”
As for Oscar, he strongly believes all children should be invited to meet the judge.
“It would just give them a sort of feeling that they were wanted, they weren’t the problem, because some children may feel they’re the problem because the adults are battling it out for them.”
The Ministry of Justice told Today “protecting children and the vulnerable” was at the heart of the family justice reforms and it would be discussing proposals with senior judges in coming weeks.