The advantages of mediation in resolving family disputes
Earlier this summer, the Minister of Justice, Simon Hughes, confirmed the Government’s commitment to a further change to the Family Justice System, which will see children given more of a voice in court and other proceedings in which decisions are made about their lives.
In his speech at the Voice of the Child Conference, Mr Hughes confirmed that, from the age of 10, all children involved in court proceedings will have access to the Judge hearing their case so that they can give the court their views directly. By access, we are told that children will have the opportunity to meet the Judge or to communicate their feelings in writing or via a third party, such as a Cafcass (Child and Family Court Advisory and Support Service) officer.
The Justice Minister is discussing the proposals with Cafcass and Her Majesty’s Court Service but he has called for the changes to be implemented as soon as possible.
In addition to changes to court proceedings, the intention is also for the mediation process to be adapted so that, for parents using this service (as an alternative to court), the mediator will, in appropriate circumstances, be able to meet with the children directly. This is a new initiative for the mediation and alternate dispute resolution sector.
To what extent do children already have a voice in family proceedings?
Many parents come to us for advice about their children following the breakdown of their relationship. Parents want to know where their children are going to live and what, if anything, is the ‘norm’ when it comes to agreeing the amount of time a child should spend with their other parent. When parents are unable to agree, and court proceedings are issued, it is not unusual for a Cafcass officer to speak to the child about what they want to happen, providing the child is old enough and has sufficient understanding of the situation.
The practice differs across the country but in the Central Family Court in London (where most of our cases are heard), Cafcass are automatically informed when an application is made and, even before the first hearing, it is their role to undertake preliminary safeguarding checks (for example with the police and social services) regarding the family. Parents are obliged to bring children aged 9 or above to the first hearing where someone from Cafcass is also available to meet with them to explain what is happening and to feed their views back to the court and the parents. When children proceedings go all the way to a final hearing (ie because the parents have not been able to agree after the first hearing and once the child’s views have been fed back) often a full report is undertaken, either by Cafcass or an alternative expert, in relation to how the court can best promote the child’s welfare (which is the court’s paramount consideration) when making a decision about their future.
In light of existing procedures and the steps already taken to listen to children’s views, it is difficult to see how the proposed changes discussed by Mr Hughes can be considered groundbreaking. Also, it is worth noting that the law as it stands already recognises the need for children’s views to be taken into account, even though these may currently be represented by a Cafcass officer.
Children also already have the opportunity to meet the Judge hearing their case (albeit in limited circumstances) and since 2011, guidelines have been in place governing the procedure for children giving evidence. The guidelines say that children should only give evidence if it will assist in achieving a fair trial although this must be balanced against the possible damage which could be caused to the child by having to do so. Crucial to the decision about whether the child should give evidence is a) the child’s willingness to do so and b) the child's maturity and understanding.
What will the new proposals mean in practice and for families?
The new changes will mean that children aged 10 or over will now be given the opportunity to speak to the Judge and this seems to mirror the provisions of the 2011 guidelines in which the child’s maturity and willingness are relevant to whether they can give evidence to the court.
Under the new proposals, the age at which children should be given their ‘voice’, 10, draws parallels with the age of criminal responsibility in England and Wales. While we will have to wait to see how the new proposals will play out in practice, I wonder whether the court’s approach will really be very different, and just how many parents will seek to encourage (or push) their children to take the opportunity to communicate with the Judge and how many children will want to. If the new procedure does result in a real change in children’s roles in court proceedings, there is a risk that they will be pressured by their parents to say what they want them to. I hope that the Government will safeguard against this so that the voice being heard really is the child’s, and not one of their parents.
What I think is more crucial is a transparent system whereby, either through their parents, Cafcass and/or the Judges, children (of sufficient maturity and understanding) are talked to about the process and kept informed about the progress being made. In either case, a better Family Justice System can only work where children are supported at home by their parents and shielded from the confrontational nature of court proceedings, which unfortunately is not always the case.
You may also be interested to read our previous blog, Recognising the wishes and feelings of children – how old is old enough?, regarding family disputes around decisions about medical treatments, religion and/or schooling of children.
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