Hearing Children In Court Proceedings

In most disputes about children that require resolution by a Judge, the child in question will not play an active part in the court process. Instead, his or her voice will be heard indirectly. The court will be informed about what the child wants, and why, through a report from somebody with social work qualifications and experience who has met and spoken with him or her (usually somebody from CAFCASS or the social services team of the child’s local authority).

This is because a court, when considering making an order that will affect a child, is required to have regard to his or her ascertainable wishes and feelings, considered in light of age and understanding. This is one of the factors that feature on the welfare checklist. Unsurprisingly, the older the child, the more seriously his or her opinions and views will be taken. Generally, the views of a child over ten might carry considerable weight, a child between 6 and 10 less weight, and a child under 6 is unlikely to have opinions that are really capable of being distinguished from those of his or her main carer.

But there are cases where a report on a child’s wishes and feelings is not enough. The child’s interests will require him or her to play a more active part in the court proceedings, with his or her own legal advisers. The child may have to become a party to the proceedings alongside the adults. Cases where this is appropriate are uncommon, but by no means rare.

Making the child a party to the proceedings is a step that will be taken only in cases which involve issues of significant difficulty. The decision to make the child a party will always be that of the court. Representation of the child may result in a delay in the resolution of the dispute. When deciding whether to make the child a party to proceedings, a Judge must take into account that risk of delay, amongst all other relevant factors. The court’s primary consideration will be the best interests of the child.

Some situations where a court might think it is appropriate to join the child as a party to the court proceedings include:

  • where a CAFCASS report has indicated that that is appropriate;
  • where the child’s interests are inconsistent with those of any of the adult parties;
  • where there is an intractable dispute over residence or contact (particularly where all contact has been stopped), where there is irrational but implacable hostility to contact, or where the child may be suffering harm associated with the dispute;
  • where the views and wishes of the child cannot be adequately met by a report to the court;
  • where an older child is opposing a proposed course of action;
  • where there are complex medical or mental health issues, or other unusually complex issues;
  • where there are international complications, in particular where it may be necessary for there to be discussions with overseas authorities or a foreign court;
  • where there are serious allegations of physical, sexual or other abuse in relation to the child;
  • where the proceedings concern more than one child and there is a conflict between what their welfare interests require, or
  • where there is a contested issue about genetic or other scientific testing involving the child.

The general rule is that a child joined as a party to proceedings is represented through a Guardian. Unhelpfully, the same label is used for person who assumes responsibility for, and has PR for, a child on the death of his or her parents. However, the two roles are very different.

In this context, a Guardian is usually a professionally qualified social worker with experience of working with children and families. However, the court can authorise another suitable professional to act as the Guardian. The Guardian’s role is to represent the wishes and best interests of the child. A Guardian must instruct a specialist children’s solicitor to advise on legal issues that arise, to prepare the case and to argue the child’s case before the Judge. This is known as the tandem model of representation.

There is an exception to this general rule. A child joined as a party to proceedings can be involved without a Guardian (so, with a solicitor only) provided that:

  • the child has obtained the court’s permission, or
  • a solicitor considers the child is able to give instructions in relation to the proceedings, and has accepted instructions to act.

In either case, the key question is whether the child, having regard to his or her understanding, is able to give instruction without requiring the Guardian to act as an intermediary.

A relatively recent development in proceedings about children is for the Judge dealing with the case to meet and to speak with the child first hand. Judges are increasingly more receptive, in our experience, to having such meetings. These are not a substitute to the representation of the child, but rather are an opportunity to:

  • ensure the Judge sees the child as a real person, rather than as the object or focus of the adults’ disputes or concerns
  • allow the court better to understand the child’s wishes and feelings than is possible at second or third hand;
  • ensure the child feels respected, valued and involved;
  • help the child to understand the court’s rules, and
  • to reassure parents that the court has been actively involved, rather than simply rubber-stamping professionals’ opinions.

How can we help?

  • Advise about the ways in which children may be heard in disputes about them, and which is likely to be most suitable in any particular case;
  • Advise about whether a case is suitable for the child affected to be joined as a party;
  • In situations where the child is a party, identify whether that should be with or without a Guardian;
  • Meet and speak with children and young people about their situations, with a view to assessing their understanding to be involved in court proceedings without a Guardian;
  • Represent children and young people who are parties to court proceedings;
  • Help arrange any meeting that is appropriate between children and the Judge making decisions about them.

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