- The court procedure for all Children Act matters has been strained for many years.
- Bring on a worldwide pandemic and, unsurprisingly, the impact was catastrophic.
- As life continues to return to back to ‘normal’, the impact of the last three years in terms of delays and lack of resources continues to have a detrimental impact upon on all children proceedings before the court.
Despite this being the stark reality, it must not be forgotten that there is legislation that must be abided by to protect all parties, and more so the child, in ongoing court proceedings. This comprises Section 1 of the Children Act 1989 The Welfare Checklist as well as Rule 1.1 of the Family Procedure Rules 2010: The Overriding Objective.
When parents have separated, or if there has been an event that has caused concern, it is common that one parent will make decisions for the child, without the involvement of the other parent. This can often be without the other parents agreement or consent. This arrangement goes on to create a “status quo” whether agreed together or not. Due to all the court delays, this status quo is therefore likely to be in place for a considerable period before the court is even involved.
Within proceedings, the paramount principle is that of the welfare of the child. But also, we must apply s1(3)(c) of the Children Act 1989 which is the likely effect on the child of any change of circumstance. Here in lies the problem faced by the parent that is asking for there to be a ‘change’.
Commonly, that change is likely to simply be returning to the way it used to be. It is common that this parent may just want to be able to spend time with their child at a level that they used to; prior to the other parent reducing their time – without their agreement.
This therefore opens a loophole that the court cannot mitigate.
The extreme pressure on the court must be made clear. This may not be right nor fair, but it’s the reality. The courts discretion is broad when considering what is in a child’s best interests and this determination is made at the time the court hears the case it is not retrospective. Again, this can be problematic.
In any application made to the court, you must be clear about:-
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what is it that you are asking the court to do,
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why you want them to do it and, most importantly,
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why what you suggest is child focussed.
Due to all the pressures on the court, there is a clear expectation that alternative ways to resolve the dispute must be considered prior to a court application being made. This typically means mediation, but many other services can be considered also. These services are becoming more and more wide ranging and services available of this nature are thankfully becoming more common and accessible.
The reality in many Children Act cases is that family therapy should and must be utilised and this therapy is vital to help parents move forward. Such services are Parenting Apart, SPIP (which forms part of the court process) alongside many other available services.
Engaging with these organisations can be really helpful to the family to help make decisions for the child and make co-parenting more effective. The reason being that the adult difficulties are, in essence, the main issue to resolve.
It must be noted that where communication breakdown is the most prevalent issue, court proceedings will not resolve those issues. Counselling should be utilised to help families move on; not litigation.
What About the Voice of the Child?
The fact that a child’s voice is not being heard is an ongoing concern.
Firstly, private Children Act proceedings are between the parents. The child must not be aware of proceedings nor brought into those proceedings in any way. They are adult decisions that need to be made on behalf of the child.
But what if the child has a clear viewpoint and they are of an age and understanding to be listened to?
In 2014 the government made the commitment that from the age of 10, children and young people involved in all family court hearings in England and Wales should have access to judges to make their views and feelings known.
The perspective of the Family Justice Minister is that children and young people must, by law, have their views heard before decisions are made about their future and when decisions are made that will impact upon them. The government states that it is committed to giving children the chance to speak to a judge and make clear their views which is pleasing to note.
Whilst this is great to hear in theory, the reality is not quite as simple. In essence, a child would only be able to give their views to the court welfare officer, to be passed to the judge, at a point in proceedings that is deemed that a welfare officer needs to become involved to fulfil a certain role. This usually comprises the Section 7 report.
However, if the court deems it unnecessary for there to be a Section 7 report, it therefore remains to be a dispute between the adults only, and there no is one made available to talk to the child. At that point, there is no capability of the child’s voice to be heard. It simply becomes a ‘battle’ between mum and dad.
It should be noted that more mediation services are offering child inclusive mediation which is pleasing to note. This will be utilised on a case-to-case basis.
Despite there being services available, it is the unfortunate reality that all too often, a child’s views are not heard.
If you need more help or advice on this topic or other children law cases, please call, text or WhatsApp Jemma on 07534 175310 for advice.
Jemma Wentworth is a family lawyer who offers family law services throughout the UK as a Consultant Legal Executive for Ann McCabe Solicitors.