The Unseen Client – A Child’s Rights In Family Proceedings
The guiding ethos at Hodge Jones & Allen is to Fight For What Is Right – but what is ‘right’ in private family law proceedings?
In some cases this is more straightforward than others. For example, it is right that you are free from any abuse – whether physical, financial or emotional – from your partner. It is right that on divorce you are provided with a fair share of the marital assets and that, in so far as is possible, your income needs are met. However, for many people, matters are rarely black and white. By their very nature family matters are complex and full of both factual and emotional history, all of which provides important context to the issues in dispute. This is particularly true for parental disputes involving children. Most parents want the best for their children, but what happens when your idea of what is right for your child – where they live, where they go to school, who they have contact with – is different from their other parent’s idea of what is right for them?
Family law contains a number of special provisions aimed at protecting children during times of adult conflict. As lawyers, we will advise you on the basis of: if this case went to court, what would a judge be likely to order? As such, it is important to not only understand your own legal position, but how this is impacted by the rights and privileges that the law affords your children in private family proceedings.
Children, rightly, have a very privileged position in legal applications concerning matters relating to their upbringing. Under section 1 of the Children Act 1989, it is enshrined that the child’s welfare is the court’s paramount consideration when determining such matters. In fact, parent-centric arguments that focus on your own needs and wishes will not hold much weight, except in so far as you can show that a decision benefiting your personal welfare would directly improve your ability to parent your child, so would in turn improve your child’s welfare.
When considering what is best for your child’s welfare, the court take into account a number of different factors set out in the Children Act. For example:
- It will be presumed that the involvement of each parent in a child’s life will be in the child’s best interests, unless the contrary can be proved.
- The wishes and feelings of the child will be considered, insofar as they are ascertainable and in light of their age and understanding.
- The court will look at the physical, emotional and educational needs of the child, and how capable each parent, and any other person the court considers relevant to the matter (e.g. grandparents and others in your extended support network), is of meeting those needs.
- The court will consider the child’s age, sex, background, and any other characteristics which they believe to be relevant. This casts a wide and discretionary net as to what the court might consider significant to their decision-making.
- Any harm which the child has suffered or is at risk of suffering will be taken into account. This can be physical or psychological, and the court can consider whether there could be future harm caused by not seeing one/both parent(s).
- There is often a presumption in favour of the ‘status quo’, if it is working, as the court will look at the likely impact of any change to the child’s circumstances on their overall welfare.
The court will consider these matters at any hearing you attend and may also ask for an expert report to be produced by CAFCASS – the Children and Family Court Advisory and Support Service – to get a wider understanding of your child’s needs and general family dynamic in the home(s).
The voice of a child
Your child’s personal views are unlikely to be the sole factor in deciding what is in their best interests. Many children think it would be in their best interests to eat ice-cream for breakfast every day but we know this is not the case! However, children do have a right for their voice to be heard. The more capacity your child is deemed to have – the more they can understand what is happening and grasp the consequences of their decisions and express them – the more weight a court is likely to give to their views. This is what is meant by “age and understanding” above.
There are a number of ways for children to participate with the court process. They can speak to the CAFCASS reporter, if one is appointed. It is also possible for your child to write a letter to the court, or meet the judge in person.
The court may appoint a third party guardian or social worker to act for your child if they fear that their voice is being lost within the parental conflict. That guardian may or may not decide to instruct separate legal representation for your child. Solicitors instructed to represent children must have specialised training to do so.
Even during financial proceedings where children are not the main focus of the decisions being made, they are still given a privileged position in the court’s decision-making process. When determining whether a financial remedy order is fair or not, section 25 of the Matrimonial Causes Act 1973 sets out the factors the court must consider. Within this section, the court is under a legal duty to have regard to all the circumstances of the case and, although it will not be the overriding factor, they must give ‘first consideration’ to the welfare of any child of the family under the age of 18.
Why do children need extra rights and protections?
The special status that children are afforded in private family law proceedings means that their interests are always in the mind of the court and, consequently, the lawyers advising you. In this way, children are often considered to be our ‘unseen clients’ – even when we do not directly represent them, you can trust that their needs and welfare are still a key priority.
But why is this the case? There are numerous theories as to why we allocate additional rights to children beyond those which adults already hold. Some laws aim to protect children in light of their relative vulnerability, shielding them from real or potential harm. Others aim to recognise a child’s ability to make decisions for themselves, helping them grow into autonomous young adults. Whether we focus specifically on the context of family proceedings; the law of England and Wales in general; or additional protections recognised on a political level; the common theme is to promote a child’s best interests, first and foremost.
Generally speaking, legal proceedings are there for adults to use. Most cases are raised, negotiated, and pursued by adults, using a set of rules designed by and for adults. These additional rights and privileges therefore serve as a vital reminder of the children often caught in the middle of such cases. No matter the dispute being had, it is always right that children are not forgotten about during times of adult conflict.