In cases where there is a dispute about the arrangements for the child(ren) of the family, whether upon divorce or separation, sometimes the adult disputes take over from a clear focus on the child(ren) involved and who sadly are firmly at the centre of the applications before the Court.
Gabi Chester, Director of Staffordshire Family Law and Specialist Child Panel solicitor, says:-
“Staffordshire Family Law aim to keep the adults involved focused on the child, and avoiding losing sight of this due to the perceived need to advance respective adult issues and concerns. The difficulties between yourself and the other parent are exactly that, between yourselves, and should not directly impact or involve the children of the family unless there are safeguarding concerns advanced.
All too, often we hear a parent saying ‘when is my child going to be spoken to’ and ‘why is no one listing to what they want’ . The truth is, no parent would take their child to be subject to a medical examination unless this was truly needed. In the same vein, parents should not openly invite forensic questioning of a child in proceedings in order to advance their own case.”
CAFCASS is the body who reports to the Court on any safeguarding issues in respect of the living and proposed care arrangements for the child. CAFCASS is tasked with providing a holistic welfare recommendation to the Court to inform any final order for those arrangements.
CAFCASS will speak to all adults involved in the arrangements for the child and this could include partners of the now separated parents, and you should ensure that any new partner is aware of this, and the fact that should they be living in or around the household of the separated parent. Background checks may be requested of this person also. CAFACSS may, if directed to file a full Section 7 report, come and see both adults in their home and also speak to the child. It is normal for CAFCASS to speak to any subject child in a neutral environment, such as their school.
There are no hard and fast rules regarding an age whereby the child voice becomes the determining factor in the Court decision making process. CAFCASS’ role is to tell the Court what it is a child says about their own arrangements, however also to provide a welfare recommendation, which may not always accord or follow the child’s own view entirely. Sometimes it is for adults to make hard decisions for a child of the family and, if the parents have lost sight of the best interests approach due to their own adversity, then CAFACSS and the Court, as impartial observers, will do so. Of course, the older the child, the more weight will be attributed to their own wishes and feelings, and of course the harder it is for any Court order to force a child into a position that they do not wish to be in.
Sadly, it is not uncommon for a child’s views to be subject to influence either directly or indirectly from the view of a carer. Whilst you may hear your child expressing a view and it may be a very strong view, step back and think if there is any way the child is picking up on your anxiety, fear or anger at the other party. In the absence of a significant concern usually of safeguarding nature within a family, a child of that family would normally want to have relationship with mum and dad when they separate and indeed have a right to do so. If a child shows a reluctance to see another parent in the absence of such significant safeguarding concern, this tends to point to a level of influence and will concern the Court greatly.
Tempting as it may be to present your child as the ‘key witness’ to professionals and the Court, this has an emotional impact upon the child and should be avoided. Remember your child may feel very torn at a time when one parent is struggling with family breakdown, and indeed could be very angry with the other parent. It is entirely possible the child is saying one thing to one parent and one thing to the other to keep the peace. The child is firmly in the middle of the dispute and should not be put on a pedestal to advance a position. It is very rare for a child to come to Court to give evidence in private law proceedings, however via their CAFCASS officer they can present their views and indeed write a letter to a Judge. In some circumstances, especially with older children, they could come to Court to speak to a Judge in advance of any final hearing, however only with the Court’s permission and in very rare circumstances will the child be present in any hearing attended by the parents.
CAFACSS have recently issued helpful guidance to parents in a divided family which can be accessed below.