Why your child has a legal right to be heard in divorce proceedings

Laura Ousby Solicitor

Every parent wants the best for their child…but sometimes in the emotional turmoil of a divorce, that natural protective instinct can become a little blurred.

It means that in some cases, children are caught in the cross fire between warring couples.  They can feel as though they are being overlooked and that their views are not being taken into account.

A survey by the family law group “Resolution” found that six out of ten children felt they had been “left out of the decision making process” when their parents divorced.  Half of the children surveyed felt they hadn’t had a say about which parent they should live with and that their parents had put their own needs first during the divorce proceedings.

A spokesman for Resolution said: “Being exposed to conflict and uncertainty about the future are what’s most damaging for children, not the fact of divorce itself.  This means it is essential that parents act responsibly to shelter their children from adult disagreements and take appropriate action to communicate with their children throughout this process, and make them feel involved in key decisions, such as where they will live after the divorce.”

Parents can help reduce the stress felt by children if they involve them as much as possible in important decisions.  In fact, the court pay attention to the wishes and concerns of children as much as possible, appropriate to their age and level of understanding of the issues involved.

The Family Procedure Rules also ensure that children should be at the centre of all decisions that affect them.  This can be achieved by the child writing a letter to the court or by asking an officer from Cafcass, the organisation that looks after the interests of children in family proceedings, to provide a report for them.

A judge may also meet with a child if necessary, not to take evidence but to ascertain their wishes and to ensure that they fully understand the process and feel engaged with it.

Children may also be allowed to speak in court in certain circumstances, although there is no automatic right to do so.  The judge may allow a child to give evidence if it is necessary to ensure a fair trial.  However, that requirement would be balanced against the potential damage caused to the child by the stress of appearing in court, possibly giving evidence that might be damaging to one or even both of its parents.

The judge will consider the child’s age, maturity and level of understanding before allowing them to give evidence.

Children may also have significant rights during Mediation.  The Family Mediation Council has a Code of Practice stipulating that children aged 10 and above should be offered the opportunity to express their wishes and have them taken into account.

One of the biggest issues facing children when their parents’ divorce is where they should live: with mum or with dad? If the child is 16 or over, they are legally entitled to choose for themselves.

Younger children have no automatic right, but parents should discuss the question with them and try to adhere to their wishes, unless there are reasons making that impracticable.

If parents can’t agree where their children will live or how much contact each parent will have, they may have to go to court to settle disagreements.  If that happens, the court will be sure to listen to children’s views and act in their best interests.

As we’ve seen, children have considerable rights to make their voices heard, but the more they have to exercise those rights, the more upset and stressed they are likely to feel. It’s possible that they may feel pressurised to take sides against one parent or the other.

It’s clearly better if parents do everything possible to ensure children don’t have to give evidence in court or make choices they don’t want to make.  Divorcing couples should try to reach amicable agreements and ensure their children are always consulted so they aren’t dragged into the legal process unless it’s unavoidable.

For more information on this article or for any family law advice, please contact Laura on 01228 516666 or alternatively click here to send her an email.