Children over ten could soon be entitled to tell family judges what they think about their future but, says Catherine Thomas, the court should retain some discretion.
In law involving children the court’s paramount concern is the welfare of a child. This is whether you are looking at the issue nationally from the Children Act 1989 or internationally in the United Nations Convention on the rights of a Child. Simon Hughes, the Family Justice Minister, in his speech at the Voice of the Child conference, announced that it is in the intention of the Ministry of Justice that all children or young people, from the age of 10 that are involved in public or private law family justice proceedings will have access to a judge to be able to voice what they think is the right solution for them in a family dispute concerning them.
This announcement is being lauded by various members of the family legal community who see this move as coming in line with the criminal age of responsibility which is currently 10. Simon Hughes’ speech was also in response to the Family Justice Young People’s Board who had advocated that children are carried on a wave through the family justice system with “little or no say on what happens to them.” Following the announcement, the Chief Executive of National Family Mediation (NFM) Jane Robey has said that in their experience 'hearing the child’s voice can shift parents' attention away from bitterness they feel about each other towards placing the interests of the child as “Page 1, Line 1” of all future plans.' The chair of Resolution, Jo Edwards, also welcomed the commitment from the Family Justice Minister saying that she believed this move would 'reduce the impact of separation on children.'
There is currently an enormous amount of pressure on the family courts with litigants in person. As Jo Edwards raised, there is a risk that with the cuts to legal aid and reduction in the amount of parties opting for publicly funded mediation this commitment could be overlooked.
Law catching up with practice
These reforms will allow children access to judges and to mediators to voice their thoughts and feelings on what they believe the best outcome for them would be. This move is an example of the law catching up with practice. Currently, CAFCASS has the option to interview children even under the age of 10 if they have siblings older than themselves who are being assessed concurrently in proceedings. In D (A Child)  EWCA Civ 760 CAFCASS was allowed to meet a child as young as seven years old. The reason given for this “exceptional direction” was to be able to take the views of such a young child into consideration and be able to reassure the child that his views would be put before the court.
The courts have long been guided by the Gillick competency particularly in relation to child protection where professionals balance the rights and wishes of children with their responsibility to keep children safe. They use the Gillick test when looking at whether a child has the maturity to make their own decisions and to understand the implications of those decisions. This guidance emphasises that it is not enough to understand the nature of the advice that is being given but that it is important for a child to have enough maturity to understand what is involved in the advice.
This move by Simon Hughes is a welcome one. However, with each child and each case being so different there must always been space for discretion being used by the professionals to protect ultimately the welfare of the child. This discretion should extend to still judging each particular case on its merits and facts, taking an objective view on whether the child in question in the case wishes to and is able, to voice their views in the case.