This is a common question I am asked at the outset by parents who are considering bringing court proceedings to sort out the living and contact arrangements for their child, or by parents whose ex has brought an application.
You may not like the idea of your child being involved in the court dispute with your ex or, on the other hand, you may actually want your child to be spoken to in order to get their own wishes and feelings over to the court.
In most cases a child will not be spoken to if an application is brought to court to determine their living and contact arrangements. In most cases the Judge will make the decision based on arguments presented to them by the parents (through their lawyers, if they have them). A child will only be spoken to if there is a need or reason for them to be spoken to, which would be done through a social worker or CAFCASS officer as part what is called a ‘section 7 assessment’. The reason for this is that, generally, the court’s view is that a child should be protected from litigation and intrusion into their lives by having to speak to a professional.
What is a section 7 assessment?
If a case is complex – for example, if there are safeguarding issues or if on the facts of the case it is considered essential that the child’s viewpoint be communicated to the court (often cases involving older children) – then the Judge may want some help from an independent professional before making final decisions. That is done by way of ordering a ‘section 7 report’ which entails an individual social worker or CAFCASS officer being allocated to a family to prepare a report for the court making recommendations to the Judge as to what they think the living and contact arrangements should be. CAFCASS are known as the ‘eyes and the ears of the Family Court’ as it is them who get to know and work with families, and not the Judiciary themselves for obvious reasons.
If a section 7 report is ordered then your child will be spoken to by the allocated social worker or CAFCASS officer. The conversation will usually take place in a neutral location such as school or the CAFCASS office, although it really depends case-by-case and family-by-family as to what is considered most appropriate. The section 7 report will detail what your child has told the social worker/CAFCASS officer. The professional writing the report may also advise the Judge as to whether they consider what they have been told by the child are the ‘true’ wishes and feelings of the child or not.
What is a Guardian in court proceedings?
In some cases the Judge may take the view that it is necessary for the child themselves to be formally joined as a party to the proceedings. It is important to stress that this only happens in the minority of cases and, again, the Judge will only go down this route if it is considered necessary to do so in order to help the court come to the right decision for that child. This most commonly happens in cases where there is implacable hostility between the parents leaving the child caught in the middle, or where the child has a strong viewpoint on a particular issue and the court assesses the child as being of sufficient understanding and maturity to be separately represented in the proceedings.
If your child is joined to the court proceedings then this does not mean that they will attend court hearings. Rather, an experienced CAFCASS officer will be appointed as a Guardian who will in turn instruct a solicitor under legal aid to represent the child. It will be the Guardian who gives the solicitor instructions on behalf of the child although, if considered appropriate, the child can give instructions directly to their solicitor in some circumstances.
So does this mean my child will never be spoken to by a Judge as part of the proceedings?
First of all, as outlined above, it is unlikely that your child will be spoken to by a professional at all during the court process. Your child will only be spoken to if a section 7 report is ordered or if a Guardian is appointed. If that happens then your child’s voice is communicated to the court through the section 7 report or through their Guardian.
There are some very narrow circumstances where a child may be called as a witness to attend court to give evidence. For example, if allegations of child abuse are being made and the court considers it necessary to hear evidence from the child themselves before making findings. However, it is important to stress that this scenario is rare. This means, therefore, that unless your case is one of the above rare ones, then your child will not attend court hearings or otherwise speak directly to the court/Judge even if a section 7 report is ordered or Guardian appointed.
What if my child wants to speak with the Judge?
The starting point here is that the child needs to be protected from the court litigation for the above reasons. A parent has to be careful before arguing that their child should be allowed to speak to the Judge as it could cause the other parent to allege that the child is being influenced or pressured into taking a certain position.
If a section 7 report has been ordered or Guardian appointed then the social worker/CAFCASS officer/Guardian will tell the child that they will inform the Judge on their behalf of anything that the child wants them to. The child does not talk directly to the Judge.
However, there are some limited occasions where a Judge will agree to speak to a child which would happen in their chambers (i.e. the Judge’s office) as opposed to in the court room itself. It is important to stress that this would not be an evidence gathering exercise – in other words, it would not be an opportunity for the child to tell the Judge what they want or don’t want – but rather it would allow an opportunity for a child to feel involved in the process where a Guardian has been appointed and for the Judge to explain directly to the child, in an appropriate way, what the legal process is and that the Judge will be making the decision for their parents.
How would my child find out the outcome of court proceedings?
It depends. In most cases the Judge will leave it to the parents to determine this – the parents are after all generally best placed to make this decision. However, there are occasions where the Judge will want to decide how a child is informed of a decision. For example, if it is a significant decision or whether the Judge is concerned that their decision may be misrepresented by either parent to the child. I have had cases where the Judge has requested that both parents sit down with the child and explain the decision together. I have had other cases where the Judge has requested that one parent sits down and explains the court’s decision to the child. In some cases the Judge will want neither parent to be involved in this process and will instead ask the author of the s.7 report or Guardian to explain the court’s decision to the child either orally in a face-to-face meeting or by way of a letter.
In some cases the Judge themselves may decide to inform the child of the outcome to the proceedings which would be done by way of an appropriately written letter. There has even been a recently reported case where a Judge decided to do this in a case involving two parents who were implacably hostile to the other and the Judge explained in the letter to the children that (to borrow a phrase that one of the children made to the CAFCASS officer) the Judge had told their parents to “cut the crap” in respect of their constant bickering and arguments.