Posted by Emilie Haine on 4th October 2017

Many parents facing court proceedings are worried that their children will feel ignored by the process. Will their opinions be considered? Will they be able to understand the decisions made about them and the reasons why?

Thankfully, the courts are becoming much better at helping children feel involved in the process. As part of these efforts, a high court judge recently gave his judgement in the form of a simple letter addressed to the child concerned, a teenage boy known as Sam who wanted to relocate to Scandinavia with his dad. Sam’s mum opposed the move and the judge agreed with her. A judge’s ‘judgement’ is the legal document explaining the reasons behind their decision, and is usually very long, formal and dry. By contrast, the letter in this case is a straightforward and very moving explanation of why the judge decided that it was best for Sam to stay where he is. You can read it here http://www.bailii.org/ew/cases/EWFC/HCJ/2017/48.html

The letter begins with a simple explanation of the law:

“When a case like this comes before the court, the judge has to apply the law as found in the Children Act 1989, and particularly in Section 1. You may have looked at this already, but if you Google it, you will see that when making my decision, your welfare is my paramount consideration –more important than anything else. If you look at s.1(3), there is also a list of factors I have to consider, to make sure that everything is taken into account.

One of the factors in the list the judge mentions is the child’s ‘ascertainable wishes and feelings’. This obviously depends on the child’s age and maturity. As a child grows older, their views should become more important, but they should always be just one factor in the court’s broader assessment of what is best for the child. A judge has a very difficult balance between respecting a child’s views but also properly considering the reasons why a child might be biased in a particular way.

Mr Justice Peter Jackson summarised how he saw this problem in Sam’s case:

“All fathers influence their sons, but your father goes a lot further than that. I’m quite clear that if he was happy with the present arrangements, you probably would be too. Because he isn’t, you aren’t… So I respect your views, but I don’t take them at face value because I think they are significantly formed by your loyalty to your father”.

It is clear that a child’s views should be considered as part a broad range of other factors. But how does the judge listen to these views?

If you would like any advice on children matters please do not hesitate to contact us on 01392 421777.

 

 

 

The Family Law society accreditation in Advanced Family lawImage of The Law Society Accreditation of Children Law.
Would you like to speak to someone? Find out how to get in touch...