21 March 2024

Arrangements for children – the child’s right to be heard

By Maria Endall, Solicitor, Hayes + Storr.

When parents separate, difficult decisions have to be made about who their child/children will live with and how long they will spend time with the other parent. If parents can’t agree these arrangements or other decisions concerning the upbringing of their child, this can cause uncertainty and anxiety, not only for the parents but for the child as well.

A key point that can often be lost when making such decisions is that the child has a fundamental right, in law, to be heard in legal proceedings that concern them. This right is enshrined in the UN Convention on the Rights of the Child, article 12; the European Convention on Human Rights, article 8; and in our own domestic law within the Children Act 1989.

If disagreements between parents reach the Family Courts then the court is under a duty to consider the wishes and feelings of the child in relation to the decisions the court is being asked to make. Often Cafcass (Children and Family Court Advisory Support Service) will undertake work to ascertain the child’s wishes and feelings. In some instances, the child can write to the judge or, depending upon the age of the child, meet the judge in person outside of court hearings.

Research shows that arrangements made for children after their parents have separated are more likely to be successful (not breakdown) if the child has had an opportunity to be involved in the decision-making process themselves and have their own views heard, even if the decision that is made does not follow the child’s wishes, so long as the reason why the particular decision was made is explained to them.

However, children need an opportunity to express their views freely, safely and without fear. It’s not always easy for children to tell their parents their feelings about the decisions being made about them. Children can fear upsetting either or both parents, so it can be difficult for children to express their own wishes, fears and anxieties directly to their parents.

Resolving arrangements and other decisions concerning children should ideally be done outside of the court arena – court proceedings can inflame tensions and consequently have a detrimental impact on the child and their relationship with their parents.

One option for resolving child arrangements with the best prospect of success, and ensuring the child is given a voice about those decisions, is through Child Inclusive Mediation, usually suitable for children aged 11+. As parents, you will have a mediator with whom you will work through the decisions that need to be made and your child will have their own mediator who will discuss with them how they feel about the decisions that need to be made concerning them.

The child’s mediator will feedback to the parents the information their child wants them to know. This information can then really help to inform parents about the decisions they need to make and help them to work together in the best interests of the child.

Including their child in the process enables the child to voice their feelings freely and to feel they have been heard, even if their wishes are not followed through with.

For more information about resolving arrangements and other decisions for children, contact Maria Endall on 01328 863231 or email maria.endall@hayes-storr.com. 

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.