It is a real privilege for us to have family law blogger John Bolch to write for our #familylaw event.
His clear approach to this difficult subject is a great addition to this ongoing series of articles. Thank you John.
Starting with first principles, the wishes of the child are, of course, one of the factors in the ‘welfare checklist’, contained in s.1(3) of the Children Act 1989. To be more precise, it is “the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding)” (my italics).
Accordingly, in any proceedings in which any question with respect to the upbringing of a child arises (i.e. where there is a serious dispute between the parties, which is incapable of being resolved by agreement), the court must ascertain the wishes and feelings of the child, if this is possible having regard to the child’s age and understanding. How does the court go about this?
In the vast majority of cases, a Cafcass officer is appointed to be the ‘eyes and ears’ of the court, and it will be for the Cafcass officer to ascertain the wishes and feelings of the child, by whatever means they consider appropriate, and to report their findings back to the court.
This then raises two questions:
(1) Has the Cafcass officer correctly ascertained the child’s wishes and properly passed those wishes on to court? and:
(2) Does the court take those wishes into account?
To answer the first question you obviously need to know what the wishes of the child are (if, indeed, they have expressed a clear wish – many children do not express a clear view, wishing only that their parents could be back together). The problem here is that usually the only thing against which to compare the child’s wishes (as stated by Cafcass) is what the parents think those wishes to be, and obviously each parent is likely to be biased. Having said that, I don’t recall many occasions over twenty-five years practising family law when my client instructed me that the Cafcass officer had got it wrong.
Of course, the quality of the job done by Cafcass depends upon the skills and experience of the Cafcass officer concerned. Cafcass officers have come under serious criticism from several quarters in recent times (although my personal experiences of them were generally very good), and it is no doubt the case that mistakes are made, whether by error, omission or lack of the necessary skills. It should be pointed out, however, that where there has been such a mistake the ‘injured party’ can have it investigated by the court including, if necessary, requesting that the Cafcass officer attend any court hearing, for the purpose of cross-examination.
The other way to judge whether the child’s wishes have been correctly ascertained is, of course, for someone else to ask the child, although this option is not usually available at the time. The matter was investigated by Cafcass in their How It Looks To Me report which found (at paragraph 7.6) that in terms of how satisfied young people were that their wishes and feelings had been made known to the court, only one third responded that they were ‘very satisfied or satisfied’, a result that Cafcass said: “suggests that, overall, levels of satisfaction were not as high as they should be in relation to such a key area of practice”.
The second question is perhaps easier to answer. The amount of weight given to a child’s wishes by the court will depend largely upon the child’s age: the older the child, the more weight the court is likely to give to the child’s wishes. There is no ‘cut-off’ age beyond which the courts will follow the child’s wishes, but it has been stated that, save in respect of medical treatment, orders which contradict “the wishes of normal children aged 16, 14 and 12 are virtually unknown to family law”. On the other hand, it is unusual for the court to find the views of children under 10 to be conclusive.
Having said that, it seems that the courts are increasingly keen to listen to the wishes of very young children. For example, in the recent case of Re W (Minors), a six-year-old girl was considered mature enough for her views to be taken into account. On the other hand, of course, the court is not bound to follow the wishes of even a mature child, but another recent case, R (A Child), made it quite clear that the court must have good reasons for not doing so.
Obviously, this is only a very brief look at what can be a complex subject, but some thoughts can be put forward. It is certainly not right that children are not heard. However, it does appear that the wishes of the child have perhaps not always been given the consideration they deserve. Having said that, it seems that Cafcass is aware of the situation (and presumably aiming to address it), and recent case law suggests that the courts do seem to be giving them greater consideration.
John – you have set out the facts very clearly. We invite our site users to comment on this – perhaps the most central question in the whole divorce/separation process.