Children Get Voice In Divorce Cases

Children caught in the middle of court battles between warring parents would be allowed to express their feelings and wishes personally to the judge deciding the case under plans being drawn up by the government, the Guardian has learned.

The proposal for children to talk to the judge or magistrate presiding over cases is controversial, and ministers acknowledge that the judiciary’s views are mixed. But Harriet Harman, the constitutional affairs minister, is convinced that children old enough to express their views should have a direct voice in cases about them. She is pushing for wide-ranging reforms of the family justice system.

“I just think it’s odd, paradoxical and can’t be right that the child who is supposed to be the centre of the interest of the court is the one person who will not see the judge, will not see the magistrates, will not talk to them, will not have the opportunity to ask any questions, will not be told what’s going on, when they’re the person who might be beset with the greatest fears about not knowing what’s going on,” she told the Guardian.

“It depends on the age of the child, but it’s about finding out the child’s wishes, finding out what information the child wants, giving the child information about the process and telling the child about the outcome.”

Ms Harman said the judge should consider in each case whether a child was mature enough to express his or her views. There was no cut-off age and primary school children could be old enough “though not necessarily from age five”.

The issues they could be asked to discuss include which parent they should live with and how much contact they should have with the other.

The Department for Constitutional Affairs is seeking views on the issue in a consultation paper which asks for responses by December 8. Ms Harman acknowledged that judges and magistrates would have to be specially trained and would need to be given enough time to work out a child’s true wishes.

“You can’t say the courts are too busy to listen to children. It used to be the case that nobody expected doctors to be able to talk to their patients. The question was ‘were they good scientists, were they professionally qualified?’ The idea that you could better treat a patient by being able to talk to the patient and understand what the patient was saying about their symptoms and conditions was quite revolutionary, but it’s now mainstream. And I think the same is happening about talking to children among judges and magistrates. Some will be naturally good at it. Others will need training but all need to be able to do it. It’s not just about knowing the case law and understanding the legal procedures. It’s difficult to imagine how a judge who can’t even talk to a child can make the right decision about the child.”

In the past, judges and magistrates have sometimes seen children in private if they were old enough to express their views. But current wisdom is against it because what a child says to the judge in private cannot be tested in evidence and because judges cannot promise to keep what is said confidential. Ministers now want to move to a more inquisitorial, child-focused system. In bitter disputes between parents, children’s needs, while ostensibly at the heart of the process, can become too easily marginalised, they believe.

In recent years, in a growing number of intractable disputes, the courts have been using powers to make children a party to the case, with their own solicitor and an independent social worker as their guardian for the court case. In these cases, children have been given a voice through the guardian, who spends long enough with them to fully tease out their wishes which children with divided loyalties may not readily express.

Ministers, however, do not see separate representation – with the extra burden it exerts on the legal aid budget – as the way of giving children a voice. They want to restrict it to cases where there is a “legal need” for it. “It’s too cumbersome, daunting and unnecessary and fills the court up with more lawyers when what you want is a light-touch ability for judges and magistrates to talk to the child,” said Ms Harman.