Is it time to rethink: Should children be seen but not heard?

Louisa Bestford, Senior Associate, Divorce & Family

It's widely accepted that children should be the focus of family law proceedings. But in the chaos of legal battles and the emotions involved, are we really listening to what children have to say?

Louisa Bestford explores two key questions: Should children be allowed to participate in family court proceedings, and how much is this already happening?

Should children be involved in family law proceedings?
Decisions made in private law cases involving children can have life-changing consequences for both the kids and their parents. Orders about where a child will live, how much time they spend with each parent, and decisions on education or medical issues can deeply affect a child's life. Given the impact of these decisions, it's crucial to consider the child's perspective whenever possible.

What does the law say?
Article 12 of the 1989 United Nations Convention on the Rights of the Child states that every child capable of forming a view should have the right to express those views on all matters affecting them. This became law in the UK in January 1992.

The Children Act 1989 echoes this, stating that a child's welfare is the court's paramount consideration. It also says that the court should consider the child's wishes and feelings. This means children aren't just bystanders in legal proceedings; their opinions are vital.

How does this work in practice?
In the case of Mother v. Father [2024], Judge Suh took an unusual step by writing a letter directly to the children involved. She wanted them to know she had listened to their voices and put them first in her decision. The children had strong negative feelings about seeing their mother, so the judge decided that forcing contact could harm their relationships with both parents. She issued an order preventing the mother from seeking a child arrangements order for three years. The judge emphasised that the choice of whether to develop a relationship with their mother was up to the children.

Can a child really know what's best for them?
While children can express their feelings and desires, their understanding of what's best for them may be limited by their age, maturity, and emotional development. So, while their voices should be heard, they also need support from professionals to help them understand their emotions and the consequences of their choices.

Do children participate in family law proceedings?
Research by the Nuffield Family Justice Observatory found that only about half of the children in family law cases had any opportunity to participate in their own proceedings. This suggests that the ideal of children participating in their own matters isn't fully realised in practice.

When children are involved in decision-making, they're more likely to accept the outcomes and have positive experiences with their parents. Steps toward increased involvement include meeting with a judge, writing letters to the court, attending hearings, or being represented separately. However, these measures are not consistently implemented.

What next?
As we rethink the idea that children should be seen but not heard, it's clear that a more nuanced approach is needed. While children may not always know what's best for them, their voices deserve to be heard and considered in family law proceedings. By creating an environment that encourages genuine participation, we can work towards outcomes that better reflect children's needs and perspectives.

To find out more or if you have any queries, please get in touch with Louisa.