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Family Law

The leading authority on all aspects of family law

17 FEB 2017

Children have no right to speak to family judges

Children have no right to speak to family judges
Despite promising to give children a greater voice in the Family Court the government still seems to be doing little on this front. The latest disappointment comes after government spokesmen confirmed that the Ministry of Justice never enacted a policy allowing children to speak to judges.

This information came to light after Researching Reform made a Freedom Of Information Request asking what progress had been made allowing children to speak to family judges about their cases. You can see the request and the Ministry of Justice’s full response, here:

'Freedom of Information Act (FOIA) Request – 109623

Thank you for your request dated 12 January in which you asked for the following 
information from the Ministry of Justice (MoJ): 

In 2014, the government pledged to make sure that children as young as ten involved 
in Family Court proceedings could have access to judges in order to share their 
wishes and feelings about their case. 
  • How was this pledge implemented in practice (policy documents/judicial 
  • guidelines/practice directions etc)? 
  • How many judges or courts were contacted/ informed about this policy 
  • decision? 
  • Since 2014, how many children used this policy and spoke to a judge about 
  • their wishes and feelings? 
  • Where children spoke to judges, how were their wishes and feelings recorded?

Your request has been handled under the FOIA. 

The MoJ does not hold any information which is within scope of your request. This is because the policy in relation to children aged 10 years and over was one that was announced by the Coalition Government but was not implemented during the administration.'

In 2014, the government pledged to make sure that children going through the family courts would be able to speak to judges about their wishes and feelings. This was considered a priority for the Family Court, which was hoping to be able to improve outcomes for children by giving them the opportunity to participate more fully in proceedings if they wanted to.

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Whilst the Freedom of Information response from the Family Justice Policy Division blames the last government for failing to implement this policy, this assertion is not quite right.

Dr Phillip Lee, who was appointed Parliamentary Under Secretary of State for Victims, Youth and Family Justice in 2016, confirmed that the current government was working on this policy only 4 months ago, in October 2016.

Dr Lee had this to say at the Family Justice Young People’s Board 2016 Voice of the Child Conference:

'Guidance on children’s participation in proceedings is key to the voice of the child agenda. It is vital that we get this right, so the judiciary, Cafcass and Ministry of Justice are working carefully on this. We need to explore ways to balance children’s stronger involvement in proceedings about them, while also making sure the system continues to operate effectively at this time of increasing demand and pressure. We will, of course, listen to your views in getting that balance right.'

Researching Reform decided to ask Dr Lee to clarify the position on this policy. He refused to comment.

President of the Family Division, Sir James Munby, also expressed concern at the government’s lack of progress in this area. In his latest View from The President’s Chambers, he reminded Dr Lee of his pledge to amplify the voice of the child in proceedings.

And yet no-one has responded to these calls.

The drive to allow children to speak to judges about their cases began in 2008, when the then President of the Family Division, Sir Mark Potter, called on judges to talk to children in every case, during a speech in May of that year. There was no take up on this recommendation.

In 2010, The Family Justice Council’s Voice of the Child sub-committee, headed by judge Nicholas Crichton, published guidelines on how judges in the Family Courts could speak to children about their cases. The guidelines were narrow and cautious but they were a start. Yet again, this initiative, and the guidelines, were ignored.

Astonishingly, in 2013, politicians renewed the debate when The Child Protection All Party Parliamentary Group recommended that Family Court judges speak to the children in each case. The Group also felt that family judges relying solely on social work reports was incredibly dangerous, and that judges’ personal lack of social work knowledge was an issue that needed to be addressed. Still, the government did not respond to the recommendations and children were left voiceless inside the system.

One year later, former Justice Minister Simon Hughes promised to make the long-awaited policy a reality, but incredibly, it went un-implemented. In 2015, Lady Hale made reference to this policy in a speech she gave at the Association of Lawyers for Children Annual Conference. She outlined the difficulties in mobilising a policy which asked judges to speak with children directly, but concluded that in reality those difficulties did not present genuine obstacles to amplifying the voice of the child.

Today, it seems extraordinary that a policy as important, and as easily implemented as this one has been left to languish for so long.

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing.