Guest blog by Harry Nosworthy, Barrister at 4 Paper Buildings

In November 2014, the Minister for Justice and Civil Liberties, the Rt Hon Simon Hughes MP, commissioned the ‘Voice of the Child Dispute Resolution Advisory Group’  to address the issue of how children could be involved in out of court dispute resolution processes.

As expressed at the Voice of the Child Conference in July 2014, it has been the Minister’s view that:

‘it cannot be right that parents can mediate an agreement affecting their child or children …. In the absence of the children’s voice being heard.’

A push for child inclusive practices

In response, the Advisory Group proposed 34 recommendations in their final report in March 2015, which in summary push for child inclusive practices, and procedures for mediators or child practitioners to speak with the child and ascertain his/her views.

The most significant recommendations are as follows:

  1. There should be a non-legal presumption that all children and young people aged 10 and above should be offered the opportunity to have their voices heard during dispute resolution processes if they wish. 
  2. All communications between a child or young person and a mediator/child practitioner shall be essentially confidential. However, the mediator should always discuss with the child the issue of confidentiality and seek to elicit the child’s views about the confidentiality of discussions. The mediator/child practitioner should attach due weight to the child’s views according to the child’s age and understanding when considering whether information given by the child should be shared with the parents. 
  3. Only for good reason should the mediator/child practitioner assert the right to confidentiality overriding the wishes of an older child in relation to disclosure of information given in mediation.
  4. Safeguarding remains an exception to the principle of confidentiality.
  5. High quality, consistent, accessible and age appropriate information should be made available for all children and young people experiencing parental separation, via leaflets, booklets, support services and videos/internet.
  6. There should be closer partnership working between all the professionals providing help and support to separating families ensuring that the voices of children and young people are at the heart of interventions both in and out of court.

These proposals appear to differ from the current approach taken by the courts. According to “The Guidelines for Judges meeting children who are subject to family proceedings” (April 2010), the purpose of the judge meeting the child in proceedings is ‘to enable children to feel more involved and connected with proceedings in which important decisions are made in their lives and to give them an opportunity to satisfy themselves that the Judge has understood their wishes and feelings and to understand the nature of the Judge’s task.’

Where judges do meet with the child, which is a rarity, the judge will need to consider the following:

If a judge decides to meet a child, it is a matter for the discretion of the judge, having considered representations from the parties –

  1. The purpose and proposed content of the meeting;
  2. At what stage during the proceedings, or after they have concluded, the meeting should take place;
  3. Where the meeting will take place;
  4. Who will bring the child to the meeting;
  5. Who will prepare the child for the meeting (this should usually be the CAFCASS officer);
  6. Who shall attend during the meeting – although a Judge should never see a child alone;
  7. By whom a minute of the meeting shall be taken, how that minute is to be approved by the Judge, and how it is to be communicated to the other parties.

It cannot be stressed too often that the child’s meeting with the judge is not for the purpose of gathering evidence. That is the responsibility of the CAFCASS officer. The purpose is to enable the child to gain some understanding of what is going on, and to be reassured that the judge has understood him/her.”

The pitfalls of Judges talking with children

In the recent Court of Appeal case of Re KP (a child) [2014] EWCA 554, the pitfalls of Judges talking with the child were highlighted when Parker J asked a 13 year old 87 questions over the course of an hour about where she wanted to live.

Lord Justice Moore-Bick reiterated the guidance to judges as follows:

  1. During that part of any meeting between a young person and a judge in which the judge is listening to the child's point of view and hearing what they have to say, the judge's role should be largely that of a passive recipient of whatever communication the young person wishes to transmit.
  2. The purpose of the meeting is not to obtain evidence and the judge should not, therefore, probe or seek to test whatever it is that the child wishes to say. The meeting is primarily for the benefit of the child, rather than for the benefit of the forensic process by providing additional evidence to the judge. As the Guidelines state, the task of gathering evidence is for the specialist CAFCASS officers who have, as Mr Gupta submits, developed an expertise in this field.
  3. A meeting, such as in the present case, taking place prior to the judge deciding upon the central issues should be for the dual purposes of allowing the judge to hear what the young person may wish to volunteer and for the young person to hear the judge explain the nature of the court process. Whilst not wishing to be prescriptive, and whilst acknowledging that the encounter will proceed at the pace of the child, which will vary from case to case, it is difficult to envisage circumstances in which such a meeting would last for more than 20 minutes or so.
  4. If the child volunteers evidence that would or might be relevant to the outcome of the proceedings, the judge should report back to the parties and determine whether, and if so how, that evidence should be adduced.
  5. The process adopted by the judge in the present case, in which she sought to 'probe' K's wishes and feelings, and did so over the course of more than an hour by asking some 87 questions went well beyond the passive role that we have described and, despite the judge's careful self-direction, strayed significantly over the line and into the process of gathering evidence (upon which the judge then relied in coming to her decision).
  6. In the same manner, the judge was in error in regarding the meeting as being an opportunity for K to make representations or submissions to the judge. The purpose of any judicial meeting is not for the young person to argue their case; it is simply, but importantly, to provide an opportunity for the young person to state whatever it is that they wish to state directly to the judge who is going to decide an important issue in their lives."

Questions unanswered

The cautious approach taken by the courts in meeting with the child does not appear to be reciprocated in the proposals issued by the advisory committee and it does suggest that there are questions yet to be addressed.

For example:

  • How do the proposed practices in mediation guard against the mediator obtaining evidence from the child as opposed to making the child feel included in the dispute resolution process?
  • If there is a dispute between the parties regarding wishes and feelings expressed by the child to the mediator, how is this to be resolved?
  • Will the mediator have the requisite expertise to ascertain the wishes and feelings, a difficult task which in proceedings would be carefully managed by a CAFCASS officer or Guardian with apposite training and experience?
  • In the absence of safeguarding checks, how can the mediator guard against straying into unchartered territory, which may potentially be harmful to the child?
  • Are there other ways in which the mediator, or dispute resolution process, can ensure the child feels involved in the process if he/she wishes, without risking the pitfalls identified above?
  • Could the parties instruct an independent social worker, or could CAFCASS apply their resources to court run mediation services? 
  • Are there the resources available in an already burdened system to implement these recommendations, which will require a great deal more work for professionals?

Clearly, any proposal to enhance the voice of the child is to be welcomed, and may signal a change of tack for the courts. However, it appears there are a number of creases that will need ironing out before the proposals are up and running.