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The Cardiff University research into the operation of r 9.5 of the Family Proceedings Rules 1991, commissioned by the Department of Constitutional Affairs (DCA), was published at the end of March 2006. The researchers consulted with children and their families to obtain their views on being separately represented in order to understand the extent to which formal representation through a solicitor and guardian was meeting children's needs or whether there were other ways in which their needs could be met.
In a written ministerial statement made on publication, Harriet Harman MP stated that the report indicated that provisions for meeting children's needs could be improved. The recommendations included the need for the potential advantages of r 9.5 to be secured earlier in proceedings; a call for greater judicial continuity in the hearing of cases; the proposal that children should have clear, reliable and age-appropriate information about their parents' separation/divorce from the beginning of proceedings; that children should have a passage agent someone, apart from their parent(s), to support them through the court process; that there should be early identification of the features of the case which were likely to produce intractable behaviour on the part of parents; that the child should always be separately represented before making enforcement orders under the (eventual) Children and Adoption Act; and the need to implement changes to FamilyMan to record:(i) if the tandem model was used; (ii) who was appointed to represent the child; and (iii) the name of the judge hearing the case.
She said that the report, alongside consideration of other research focusing on children's welfare and other statistical evidence, would be used to inform the making of rules of court under s 122 1(b) and (2) of the Adoption and Children Act 2002. In the meantime, existing provisions for the representation of children remained in force, which continued to offer a range of ways in which the courts might ascertain children's wishes and feelings.
The report itself warns that as r 9.5 is only applied in cases regarded by judges as causing special difficulty, there were formidable research problems to be overcome in order to obtain even a small sample of children in such cases.
The children's views and experiences
Although the 15 children and young people and their family circumstances, which led to court proceedings varied considerably, a number of consistent messages emerged from their interviews:
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