The voice of the child in court – how to hear it responsibly…

There are some weeks when the blog might be more about what I have done- and others where it is more about what I have read or heard.  This week is definitely one of the latter.  Here is another thought provoking article from this week’s Family Law- especially the second part.

A senior Family Division judge for England and Wales has warned that people do not take family court decisions seriously enough and do not obey the court orders promptly and fully.

In a speech to the annual conference of the Association of Lawyers for Children this morning, Mr Justice Coleridge warned this lack of respect for family court orders is leading to an increasing number of hearings and ever more interventions by guardians, social workers, Cafcass officers and child experts.

The judge argued that in order to avoid a “flabby judicial response”, especially at a time of unprecedented squeeze on public resources, that family courts need to reassert their authority. One of the ways in which he proposes to do this would be to introduce a three strikes system whereby if a parent disobeys a court order three times the residence of the child should be transferred to the other parent.

Summing up his argument, Mr Justice Coleridge said: “my principle point this morning is that we should all, all of us involved in the system,  be alive to the unintended slippage in the authority of the family court which has been creeping in and gathering momentum over the last decades and which we can no longer afford to ignore. Expression and projection of proper authority is of vital importance to parents, the courts and society. The rot must not be allowed to go further. In every way we simply cannot afford it.”

In addition he said that family courts should seriously consider following the Australian example and resume wearing robes and removing the carpets and indoor plants to reinforce the authority of the court.

Although the judge was speaking in his own capacity and not on behalf family judiciary in Britain, he added: “However, many I would count as my friends I know share my views although they tend to be rather more reticent about expressing them in public. In that respect I now no longer share their traditional restraint. Times demand more open discussion and debate.”

Mr Justice Coleridge criticised the way in which too great an emphasis was being placed on listening uncritically to the views and wishes of children, including young children. This he said was leading to the danger of “undermining the family court’s authority and proper function which is to arrive at a decision which is overall, best for the child.”

“As a matter of both fact and law, children lack capacity to make important decisions. That is why they are treated as ‘being under a disability’ legally speaking,” the judge said.

“If we forget this and too readily impose the decision on the child, surely we, all of us, are shirking our responsibility to a degree which is bordering on the abusive. In just the same way as the weak and indecisive parent allows the children to call the shots we are abnegating our function to a degree which is nothing short of cowardly and unfair.

“Children expect and are entitled to expect us to make these important decisions without overly and unnecessarily involving them in the process.”

He added: “I suggest we need to reaffirm, redefine and re-establish the proper function and role of the family court and family judge. It is to act as the proper and appointed authority figure both towards the parents and the children. Not another expert or welfare officer.”

I am lucky enough to have met Mr Justice Coleridge and he is a very experienced and wise judge.  It is worth considering what the ‘voice of the child’ means in practice.  There is obviously a fine and critical line that we need to find between abdicating our responsibility and listening.  I am sure that this will be a topic that we will spend more time on in our Safeguarding module next year.

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8 Comments to “The voice of the child in court – how to hear it responsibly…”

  1. While I understand where Coleridge is coming from, there is a danger of taking this too far the other way in regards to the physicality of the court reflecting its gravitas. From my experience working in the courts, children find it a very intimidating environment and judges will tend to not robe (at least in their chambers) in order to put the child more at ease. This of course does not mean that the child’s view should be the be all and end all in a case. What I do agree with is that we need more consequences for breaching orders. In over two years in the courts I only saw one individual imprisoned for breaching. Breaches are not enforced to anywhere near the extent they need to be in order for problem individuals to respect the court. I suggest it is a case of more rigorously enforcing breach proceedings rather than coming up with new consequences for breaching. Crime stats on reoffending show consistently that it is not severity of sentence that deters, but the likelihood of being caught and processed.

  2. I wonder if Mr Judge Coleridge would apply his thoughts to other family court orders and if breaches of non molestation orders returned to civil court are treated similarly?

    Also, whilst I agree that a judges role is not to be an expert or welfare officer, how much training/knowledge should we expect the judiciary to access in order to perform their roles effectively and with sensitivity?

  3. Interesting views from the Judge. Many of the clients that i worked with chose not to follow the court orders as they were unsafe for them and their children. I wonder what the real reasons are for the orders not being followed.

    • Sally – that is a very good point. I think I will write to him and raise this. I can ask his advice about how best to feedback when one feels an order is dangerous. Unless you have the answer already?

      • We talked about Mr Justice Coleridge’s comments in my IDVA training room this week and many of them agreed with Sally’s point. They felt that, if possible, some feedback on your questions to him would be valuable.

  4. if courts were going to take a stronger view on breaches it might prevent the issue i saw of clients going to their solicitor after a breach such as returning a child late and being told that they couldnt justify legal aid to take it back to court. i agree with the risk of putting too heavy a weight on wishes of the child – i have long been concerned that children are being asked whether thay want to see their parent when we should be considering whether it is in the interest of the child to have contact. Adults have to be prepared to make decsions for children about what is best for them in all sorts of settings.

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