When the court reviews a child arrangement order application, the voice of a child is becoming more important in divorce proceedings.
The best interests and welfare of a child will be the paramount principle for the courts; and the voice of a child will be heard during proceedings, which concern contact arrangements.
A child arrangement order governs with whom a child is to spend time, have contact or to live with and when each of these things is to happen. Often, divorce proceedings and discussions surrounding arrangements for a child are difficult for all parties concerned, with children sometimes feeling caught in the middle.
Parties may want different living or contact arrangements for the child; and hearing the voice of the child is imperative to ascertain what is in the best interests of the child. It is hard to gauge how a child may be feeling or where they wish to spend most of their time; especially because a child will naturally not want to upset either parent.
At times, there can be undue influence from one or both parents which will undermine the right of a child to participate and share their thoughts and feelings on their future. The parents might not be aware that they are communicating their feelings to the child – children will often pick up a whole conversation from a facial expression, or will intuitively know when their parent is upset. The court will seek to hear a child’s wishes and feelings to take these into account when making a contact arrangement for the future.
Historically, parental views dominated the discussions within contact proceedings. However, there is a movement towards a more child focused process. This includes the voice of a child being heard: allowing them to express their wishes and feelings. The court will then consider this when determining the contact order to make.
The child is at the centre of the decision surrounding contact arrangements and the decision will be based primarily on their welfare and their bests interests. The way in which their voice will be heard varies. However, the most common method is the involvement of CAFCASS.
CAFCASS is an organisation which is independent from the court and from each of the parties, and works to promote the welfare of children during the family court process. CAFCASS is usually ordered to make a report with recommendations to the court. To inform their recommendations, CAFCASS speak to both parties and the children to ascertain how they are feeling, any issues or concerns which may have arisen and to determine suitable recommendations for contact arrangements going forward.
Having a third party such as CAFCASS involved removes an element of a child feeling like they cannot express how they truly feel. Interactions with children to allow them to voice how they feel will depend on their age; for example, it may be a discussion or it may involve drawings and games – the process is child centred to ensure the child feels comfortable.
Depending on the age of the child, they may be asked to take part in child inclusive mediation, write a letter to the court indicating their wishes or to meet the judge themselves.
The involvement of a child will be underpinned by their age and their understanding of the situation. A child who is able to form their own view and to understand the implications of their decision will be given the opportunity to do so and the weight given to this by the judge will depend upon the maturity, age and capacity to understand what is happening.
Different and age-appropriate interview techniques are used depending on the age of the child, in order to ensure that they are comfortable during the process and are able to freely express their thoughts and opinions. They are unlikely to be asked directly who they wish to live with, but and the CAFCASS officer will use their skill and experience to tease out the child’s wishes and feelings, which will then inform their report to the court.
What can I do?
Children are resilient and will adapt to their new situation; however, you should not coach a child for a CAFCASS review. During the process of the child contact arrangements being finalised, it may feel like an unstable environment for your child, who will pick up on any tension you may be feeling. It is important to support your child and listen to them. The Separated Parents Information Programme (SPIP) is a course you can attend to help you understand how to successfully co-parent with your ex-partner , how to put your child first when going through your separation, and – crucially – how to avoid unconsciously burdening your child with your own feelings.
The court will review a number of factors when determining contact arrangements. You can rest assured the primary concern when making a decision is the welfare of the child, who will be given the opportunity in a safe and age-appropriate way to express their wishes and feelings with the support of a third party who is only concerned with helping the court to establish what is best for that child and to support the child in taking an active part in their own future. The final decision – if the parents can’t agree – rests with the court, and the judge – like the CAFCASS officer – is only concerned with what is best for the child. In making that decision, the voice of the child can and will be heard.