Children certainly should be heard when it comes to family disputes

Gone are the days when it was acceptable to say that 'children should be seen and not heard'. Whether as parents, teachers, health workers, policy makers or politicians, the importance of listening to what children and young people have to say is widely recognised.

But as family lawyers and family mediators working with parents as they go through separation or divorce, do we need to hear from children directly or is it better to listen to parents to find out what their children need? Does it put pressure on children and young people when we ask them what they think and feel about difficult situations? How easy is it for children to say what they are really thinking and feeling about family issues without them worrying about upsetting one or other parent? Can children really be expected to understand the longer term implications of what they say they want or don’t want?

The Children (Scotland) Act 1995 and the United Nations Convention on the Rights of the Child (UNCRC) say that children and young people should be given an opportunity to express their views, feelings and wishes, and to have their views taken seriously, on any decisions that affect them, including those within the court process. Children also have the right not to express a view. It is important for children to know that the final decision is the responsibility of others and that the outcomes may or may not be what they were hoping for. For many families, differences of opinion are managed by talking, listening and taking on board alternative viewpoints. Parents are well placed to understand their children’s needs, hear what they have to say and respond appropriately.

The challenge is how to seek children’s views effectively if there are disagreements that need to be resolved. At this stage, parents may be in dispute with each other about what is best for their children and seek outside help to resolve their differences.

As professionals we often hear widely differing views about what is “best” for a particular child as each parent states their position in relation to childcare or parenting arrangements from their own viewpoint. We encourage parents to focus on their children and to think about the situation from their perspective, but it is often difficult for parents to separate their own needs from those of their children at an emotionally fraught time. There are a number of ways in which children’s views can be heard directly. In the context of separation or divorce children can meet directly with a trained family mediator, children’s worker or child consultant, a court reporter or the sheriff/judge. They can express their views in writing on a form (an F9 Form) or they can be represented by their own solicitor.

Relationships Scotland has an established process of direct consultation with children within family mediation. Mediators undertake additional training to carry out this work. Even those who are enthusiastic about the benefits, however, recognise the limitations of parental capacity to respond appropriately to feedback from children and age suitability. Over 60 per cent of children whose parents are in mediation with Relationships Scotland are under eight.

In England a Voice of the Child Dispute Resolution Advisory Group was established in 2014 to ensure that child-inclusive practice in out of court dispute resolution processes was promoted, and that the voices of children and young people were heard in all private family law proceedings that affect them. This has raised issues around age of competency to express views, consent, safeguarding, parental gatekeeping and children’s rights versus parental responsibilities. One of the main recommendations of the Advisory Group was a move towards a presumption of child inclusion as the norm rather than consultation, as and when parents and the mediator consider this to be appropriate.

There are signs that the importance of hearing children’s views is on the radar of policy makers in Scotland. One of the strands of Scotland’s current Family Justice Modernisation Strategy is a focus on the Voice of the Child, including a review of the F9 form and expectations of child welfare reporters. Scottish Women’s Aid and Scotland’s Children and Young People’s Commissioner’s Office have conducted research recently on how children affected by domestic abuse can be supported to express their views within the court process. And the Scottish Child Law Centre hosted a parliamentary event on A Child’s View in Court in January, where there was moving testimony of the impact of failing to hear children’s voices.

Relationships Scotland is keen to develop the debate on how children’s views can be heard more effectively, especially in private family law cases. Professor Jenn McIntosh, a researcher and child inclusive practitioner from Australia, gave a seminar on the Voice of the Child in Separation and Divorce in Edinburgh this month. Professionals from a wide range of agencies heard about best practice from other parts of the world.

Children want to be involved in decisions that affect them. It is important to listen to what parents, children and young people all have to say about their family situation and ensure those messages, as well as any developmental needs and safety concerns, are considered. Join the debate at our blog at www.relationships-scotland.org.uk/blog/category/blog

Rosanne Cubitt, Head of Professional Practice, Relationships Scotland