Are we nearly there yet? The voice of the child and how to hear it

Family lawyers rarely work directly with children, but children are often at the heart of what we do. Decisions made, both in terms of how they spend their time between their parents and the financial implications of their family separation, will have a significant impact on them.

Helping parents to navigate separation in a child-focussed way is key in providing the best possible support. There are plenty of resources available to help parents but often the most important message is to minimise the conflict between their parents – when children see their parents working together it is reassuring and mitigates their concerns around the future.

Parenting is challenging. Parenting post separation often more so – especially as differences in parenting styles can become polarised. One of the issues parents may disagree on is the extent to which their child should be involved in discussions, negotiations or (if agreement cannot be reached) court proceedings. Some parents feel strongly that it is best for children to be presented with a certain outcome rather than feeling a degree of responsibility in the decision-making progress, others believe the child's voice should be determinative – their life, their choice. The court's approach is nuanced and based on the particular circumstances, but what is absolutely clear is that the child's welfare is paramount. 

The voice of the child can be important for various reasons, for example:

• They have a unique perspective – nobody understands the reality of moving between their separated parents better than them and sometimes they can raise concerns that would otherwise be entirely overlooked;
• Some children find the prospect of decisions being made about them without their input to be troubling and upsetting, which can potentially mean an arrangement is destined to fail as the person most impacted by it does not feel engaged;
• Hearing their child's voice can be a powerful reminder to parents of the importance of working together and finding solutions – without their voice they can unintentionally stay focussed on their own objectives.

For most families, arrangements for children are agreed without a court application. Sometimes directly between parents, through solicitors, or through a mediation. In mediation, children can meet with a Child Inclusive Mediator so that, if they choose to, their voice can be heard. In court proceedings the voice of the child is most often heard through a report from the court welfare service (CAFCASS) – a Family Court Advisor (FCA) meets with the child and their parents and gives their view to the court as to what is in the child's best interest. The view of the FCA is not determinative – it is for the judge to make the decision- but can be influential. 

However, a report is not prepared in all cases and is often not prepared until some months into any proceedings. There is a pilot scheme in some areas of England & Wales – the Pathfinder Pilot – and one of the driving forces behind it is to hear the voice of the child more quickly in court proceedings. Due to its early success, the Pathfinder Pilot has been extended twice since it was launched in 2022 and is set to extend again this year. Courts using the Pilot have found the average case lengths have reduced, and the number of open cases has halved in those areas where the pilot has been introduced. The pilot enables earlier engagement with children within proceedings, allowing their voice, and their wishes and feelings, to be heard early and centred within the process.  

Hearing a child's voice is not the same as letting the child choose. One of my favourite judicial quotes when it comes to hearing the views of children within court proceedings comes from Baroness Hale who said in Re D: ' As any parent who has ever asked a child what he wants for tea knows, there is a large difference between taking account of a child's views and doing what he wants.' 

As important in hearing a child's voice, is thinking about how decisions are delivered to them. Judges sometimes write to children in order that they know quite how much the judge has considered and understood their perspective even when the decision they have made is different from what the child would like. A recent development has been for some judges to write their judgment in 2 parts – a child-friendly version that children could understand and then the more formal full judgment. It is a recognition that children are as invested in the outcome as their parents. 

In 2017 when Mr Justice Peter Jackson wrote his 'Dear Sam' judgment – a judgment in the form of a letter to the 14 year old boy who wanted to move overseas with his father, but the judge refused permission. The letter is an excellent example of a child-focussed approach with the judge explaining to Sam why he did not think a move abroad was right for him and sharing his concerns that Sam did not yet realise the influence his father had over him. 

The question of whether the child's voice is really their own is the most challenging element of children being involved in decisions. Many children struggle with divided loyalties when their parents separate, and feeling like they have to choose is enormously difficult. The judge was able to articulate how hard it is to make decisions in respect of someone who feels strongly but perhaps for the wrong reasons. It was a masterclass in understanding the situation from a child's perspective.

A more recent example was a case involving an 8 year old who felt so strongly that their views had been ignored they wrote to the appeal judge to explain: 'I am disappointed in the other judge's decision because I want to see my Mum and I want to see my Dad as well. ….. I really, really, really really, really, really, really don't like the decision that you have made I don't think  this should carry on. If you make the decision that it should carry on I don't think I will never get used to it the fact that you have made it happen…. and if it doesn't change for my WHOLE LIFE. Can you just listen to me and be in the room when MY life is decided, don't I deserve to be there when MY life is decided…. I want it to go back to the way it was and everyone knows that even you and I never want it to be like this EVER'. The appeal judge did listen – and found that the child had not been influenced by their mother but was sharing their own views.

Two different cases with different circumstances and different outcomes but in both the judges had taken a great deal of time to consider the views of the children but also the impact of any decision on them. I was delighted to see that the President of the Family Division has prepared a toolkit for judges to support them in writing to children. It includes a summary of key considerations when writing to children, examples of language tone and format that can be used, and some moving examples of letters that have been written. I am hopeful that this toolkit will provide the support required for cases outlined above to become the norm. The message that comes across with absolute clarity when reading the toolkit is just how important it is to children to better understand not just what decisions have been made but why. A judge gave an example of the child sleeping with their letter under his pillow, and another child said 'I think a letter would have completely changed my life'. The toolkit provides a message of positivity – we can develop practices so that children can feel seen, heard, understood and protected.