Children should be seen and not heard? The role of children in private law proceedings

In October 2021, the Nuffield Family Justice Observatory published its research into children’s experience of private law proceedings – being proceedings between separating parents rather than where there is local authority involvement.

Whilst the research comes with a health warning that there is a need for further investigative work to be done, the report makes for sombre reading for parents and family law professionals alike.  Family lawyers are well versed in the need to act in the best interests of a child when exploring post-separation arrangements and navigating court proceedings on those. We often talk about shielding children from adult issues, and we strive to protect children from exposure to the conflict that these proceedings bring.  In doing so, are we overlooking the need for some children to be more involved and to have a clearer understanding of what is happening to their family?

The research highlights that, whilst there is a lot of information about how children are affected by conflict between separating parents, very little is available about how they themselves view their parents’ separation or divorce and what they feel about the court proceedings in which their futures are decided. Do children have enough of a voice in the discussions about the arrangements for them?  Are they adequately supported whilst court proceedings are ongoing to understand what is happening, when and why?  The research identifies a number of areas for further research and reflection and where improvements could and arguably should be made.

The 6 key findings were:

• Parental separation can be distressing, traumatic and confusing. How can we reduce this, and how might the court system be changed to alleviate stress and harm?
• Good communication and access to information are important. What is the right level of information that children should be given, and when? How do we avoid children “filling in the blanks” themselves to arrive at the wrong conclusions?
• Being heard and understood in court can feel empowering. How can we ensure that children’s views are heard and properly considered? What would a court system look like where children were given more choice and options about how they wished to participate in proceedings?
• Being properly involved and consulted in decision making is important. How can children be supported to share their views in a safe and protected way, without feeling overburdened?
• Getting the right support makes a difference. Interactions with professionals need to be sensitive and supportive. How can others in the community help, such as teachers?
• Thoughts and feelings on contact are complex and take time to process. How can we ensure children have enough time and space to reflect on and develop their views about contact (which might not always be straightforward)? Do our current practices enable flexibility and allow for children to have time to try things out?

The research raises thought provoking issues about how the family court system could possibly change to ensure that children’s interests are not just served but that children feel heard, understood and supported through the process.  It raises questions as to whether the people at the very heart of private law proceedings – the children themselves – are paid more than lip service in a process which is characterised by adult conflict.  It is clear that more research needs to be undertaken, and it may be that the ideal world scenario where children are given a wide range of options and information is unachievable in a world where funding cuts and strains on the court system are all too familiar. This research should however give family law professionals pause for thought about what it means to act in a child’s best interests and how, in every case, that can be achieved.