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Should children be included in children proceedings?

View profile for Darren White
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I recently read about Angelina Jolie complaining that the Judge in her case, Judge Ouderkirk, would not allow her and Brad Pitt’s children to testify as part of their divorce case.

Whilst this case takes place in the US Courts it raises an important question, as to whether children should be involved in court proceedings in England and Wales? In effect should they have their voices heard?

Believe it or not, in England and Wales the Courts do have the power to allow children into Court to give evidence. However, it is rare that this actually happens. This is because it can be a traumatic experience on many levels for children to have to directly involved in a Court Hearing. Whilst consideration may be given to older children attending court, or indeed speaking directly to the Judge away from a court hearing, there are alternative ways for children to have their voices heard.

In certain circumstances the children can provide letters setting out their wishes and feelings, which the Judge and the parties will read.

More commonly, the Court can order CAFCASS, who are an independent organisation whose remit is to represent children to speak to the children as part of what is called a Section 7 Report. Section 7 Reports can be detailed and can often consider issues in relation to possible harm such as domestic abuse, drugs or alcohol misuse, mental health issues and involvement with the Police or Social Services. Such reports will provide the Court with an impartial reflection of the child’s wishes and feelings and make recommendations as to how to progress the case

In some situations, where there may not necessarily be those types of issues present, the Court can simply order as part of a Section 7 Report that the children are spoken to and their wishes and feelings will be reported back to the court in the context of their lived experiences.

As it is the welfare of the children that is paramount, their wishes and feelings, which are important factors when considering welfare, are not the overarching determining factor. The Judge has to make a decision based on what is in the children’s best interests and of course wherever possible the children’s wishes and feelings are borne in mind, but ultimately any risk of potential harm will always be the Court’s primary consideration. Sometimes this may conflict with what the children are saying that they actually want. It is therefore important to keep this in mind when reaching any private law children arrangement. It is important to be realistic as to what will work for a child and parents need to work together to reach the most suitable outcome, without putting pressure on the children to make the decision for them.

At FDR Law we have an experienced Children Team who are able to deal with these queries promptly.