The muffled voice of the child: Part four

It is apparent to both professionals and families involved in the court process that children are being placed in an unenviable position. Crucially, children feel that more should be done to provide them with a platform
to enable them to be heard.
But why should they have to shout from the rooftops?

Pros and cons

Former MP Simon Hughes
has reiterated his views
both at the Voice of the Child conference in July 2014 and
again in his response to the recommendations of the Dispute Resolution Advisory Group in March 2015: ‘I firmly believe that children and young people should routinely have the opportunity to have a say in matters which affect their future and agree that this should be a non-legal presumption.’

One of the main dilemmas that arise is how to balance the need to protect children from the conflict between their parents while also giving them an opportunity to express their views. Children’s competence depends not so much on the age of the child as on the context, the support they receive, and the way activities are structured, something which the Family Justice Review considered.

It is important to remember that it can sometimes be very damaging when children are asked to take part in their parents’ battles. They may feel the need to choose between their parents and may feel responsible for any final decisions made. There is an important difference between listening to children and making them the de facto decision maker: it is widely recognised that children should not be given a level of power and authority that they are not equipped to bear.

As professionals, we need to distinguish between a child’s own preferences, views, and perceptions, and those which are merely parroting the opinions of a parent. Similarly, listening to and hearing what children have to say also means understanding their perceptions of events, not our own construction of their meaning, which can be difficult.

All that said, being heard and understood can be a ‘healing experience’ for children, who may be empowered by having a say in matters, rather than simply having adult solutions imposed upon them.

Child-inclusive system

Unsurprisingly, the clear message from the research seems to be that the courts should always put listening to and, perhaps more importantly, hearing the child first when making any decision that affects them. The Ministry of Justice has been heavily involved in promoting this cause, making a number of proposals for a more child-inclusive system, including the use of mediation, and indeed endorsing a number of recommendations of the Dispute Resolution Advisory Group in the government response published in March 2015.

The need for children to be more involved also came to light in the views of the children on the Family Justice Young People’s Board and the finalisation of
its national charter. However,
is this an unfair sample of those involved with the system?
Aren’t the children on this board inevitably going to be the ones who want their voices heard, and are others less willing to come forward?

What is apparent from
current dialogue regarding
the ‘voice of the child’ is that
the deficiencies in this area are finally being brought to the
fore and addressed. Ruth Smallacombe, a family consultant, mediator, and counsellor who was part of the Dispute Resolution Advisory Group’s consultation forum, concludes: ‘This represents or should represent a fundamental shift in culture over time and impacts on how we all, parents and professionals alike, consider the needs of children whenever there is family separation.

Rather than many parts of
the system still paying mere
lip service to the “voice of the child”, I sincerely hope that we all now seriously offer child-centred opportunities (not just legal or mediation-based) for children and young people, not only to have their say and get support, but to influence in some way (if they wish) the far-reaching decisions which other people will make about them and which influence the rest of their lives. To do this
we need raised awareness, better-supported parents
and families, and better-equipped professionals sensitive to the complexities and responsibilities involved.’

It is clear that listening
to (and hearing) children, however this is done in practice, is likely to change not only the outcomes of the matters they are directly involved in, but
the family justice system as
a whole. SJ

Carla Ditz and Helen Greenfield, pictured, are associates at Family Law in Partnership