Authored By: Khayra Rashid
Middlesex University Dubai
Abstract
This article explores all of the legal and practical considerations that are particularly involved in giving weight to the children’s voices within family court proceedings, and it involves custody and access. It examines both international and domestic legal frameworks supporting children’s rights to be heard and the mechanisms used to capture and present their views. It also takes into account the elements influencing court deference to these voices. The article argues toward a balanced, child-centred methodology that considers the child’s age, maturity, as well as the context of the family conflict, because it draws on real cases, academic commentary, and statutory developments. It ends with some recommendations which may improve how consistently and how effectively children participate within family law systems.
Introduction
In recent years, increasing legal and academic attention toward children’s rights has been heard in family court proceedings. This article rigorously examines ways to integrate children’s opinions in UK family law and analyses how courts decide the importance of their viewpoints. The assessment, as well as the evaluation, informs a discussion concerning broader implications when it comes to justice and welfare. The paper explores legislative provisions which include the Children Act 1989 and the Children and Families Act 2014, plus it engages with relevant case law and international obligations under Article 12 of the UNCRC.
Legal Framework and Background
The Children Act 1989 enshrines the child’s welfare as being the court’s paramount consideration (s.1(1)), alongside support from the welfare checklist in s.1(3), including “the ascertainable wishes and feelings of the child concerned”. [1]The Children as well as Families Act 2014 presumes parents should be involved themselves. This involvement should be for the child’s welfare.
The child’s right to freely express their views is affirmed by Article 12 of the UNCRC, which the UK ratified in 1991, and their age and maturity are properly considered. The UNCRC has influence upon judicial reasoning, though not directly incorporated.
[2]
In Mabon v Mabon [2005][3], the Court of Appeal did recognise adolescent autonomy, because if you sideline children from legal proceedings, it may violate Article 8 ECHR rights.
Section 1: Mechanisms for Hearing Children’s Voices
There are indeed multiple methods available to ensure children’s views are heard within family court proceedings, each method varying in its formality, with judges relying on such methods. Cafcass officers prepare the Section 7 report, a mechanism in wide use. These reports assess the child’s wishes as well as feelings. However, they often include the officer’s take instead of a clear account of what the child says. This interpretive aspect has ignited some worries, in particular in relation to the likelihood of practitioner bias or parental influence. The authenticity of perspectives from children may be distorted as a result of this Another method involves judicial interviews, informed by guidance like the Judicial Studies Board’s “Guidelines for Judges Meeting Children” (2010). Such meetings may well empower children and provide a chance for their voices to be heard directly by the judge.
However, their unregulated discretionary nature can generate inconsistent practice and procedural issues[4]. According to Rule 16.4 within the Family Procedure Rules, the courts can appoint guardians within what are more complex cases. Solicitors may be instructed by these guardians on the child’s behalf, representing their best interests. This model makes sure of professional representation but it can conflate what professionals deem to be best with what the child actually wishes, potentially marginalising the voice of the child as an individual.
[5] Voice of the Child Reports (VOCRs), seeking to reflect neutrally the child’s views without interpretation, are used more extensively throughout Canada as well as Australia but remain rare in the UK. Academic literature has highlighted the value of supporting authentic child participation, such as Birnbaum and Saini’s work (2012). Child-inclusive mediation offers up just another alternative. Professionals seek to elicit the child’s views, and professionals seek to present these views during parental discussions. Even though this process requires that the child be emotionally ready and willing to engage, it can be helpful at reducing adversarial pressures.
Section 2: Factors Influencing the Weight Given
Courts consider several factors in determining the weight given to views of a child. The opinions of older children generally carry more weight, as age and maturity do play an important role, in line with Section 1(3) of the Children Act 1989[6]. In Re S [2010], the court supported the 14-year-old’s choice as conclusive.[7] Yet Re H [2014] cautioned people about using age as a proxy for maturity. [8]Authenticity and consistency are assessed in courts. They must also ensure children’s views are internally coherent as well as being free from external influence. In Re W (Children) [2010], the Supreme Court underscored the need to guard against manipulation, a concern also highlighted in reports by the Children’s Commissioner (2015), which found children often alter views so as not to upset parents.[9] Furthermore, the courts do assess the child’s understanding, the child’s reasoning, and also if a rationale is simplistic, or if it reflects immediate gratification, expert psychological input can be required for interpreting maturity and awareness[10]. The level of parental conflict in the end has a large impact upon the reliability of wishes expressed by children. Family discord, according to the Nuffield Family Justice Observatory (2020), results in children’s voices being misrepresented or diminished in private law cases.
Section 3: Risks, Benefits, and Comparative Approaches
Children’s participation within legal proceedings, even though important, can burden them in an emotional capacity in such a meaningful way. Children asked for their preferences may feel as though they are being forced to choose between their parents. This creates feelings of worry and guilt[11]. Psychological studies highlight that long-term trauma can result after such involvement without proper emotional support. Since judicial approaches to involving children differ widely across the UK, the lack of standardised procedures further exacerbates the issue. This variability, which is a “postcode lottery”, weakens both fairness and consistency in the incorporation of children’s voices[12]. Jurisdictions such as Australia as well as New Zealand have introduced well-structured mechanisms in order to ease child engagement. These mechanisms include Independent Children’s Lawyers (ICLS) and Family Dispute Resolution systems. Furthermore, the Lundy model has been proposed as a theoretical framework to ensure meaningful and respectful child participation in legal contexts that emphasises “space, voice, audience, and influence”.[13] The Lundy model, created by Professor Laura Lundy, thoroughly frames the way one can enable real and proper child involvement inside legal settings, and it stresses these four main parts: “space, voice, audience, and influence”. [14]This model operates Article 12 of the United Nations Convention on the Rights of the Child (UNCRC), and it asserts that children are able to express their views freely in all of the matters that affect them, and people weigh those views properly in accordance with their age and maturity. [15] The Lundy model is acknowledged across the globe. This recognition exists worldwide. Europe has incorporated it within participatory programmes and different initiatives for child rights. However, it certainly does require formal integration. This integration should be made into the UK family justice system for it.
The UK must push for child participation reform. All of the professionals who work in family justice should undertake some compulsory trauma-informed training, in order to improve all of these reforms. Through this training, professionals gain abilities for interacting gently with children. This initiative seeks to work to reduce any of the risks during these legal proceedings that could then lead to re-traumatisation.
[16] Consistent national guidelines would serve to integrate the perspectives of children by resolving the discrepancies throughout each of the regions. These guidelines would have to ensure that every child also has equal opportunities. By this, they will be allowed to engage in decisions impacting them greatly. Projects that test structured participatory models such as the Lundy framework may provide useful perceptions into best practices, as this framework acts as a guide as well as shapes scalable solutions. Lawmakers are able to modify the laws in order that children can authentically participate in them. This would bring domestic family law into alignment with international standards. Article 12 in the UNCRC provides this alignment. Practical enhancements should be informed by empirical research, like studies from the Nuffield Family Justice Observatory. Cross-jurisdictional, dynamic education must be implemented. This must be supervised too.[17]
Discussion
Children should be heard, rather than burdened. For easing child participation, Cafcass reports, judicial interviews, and Voice of the Child Reports are important mechanisms. However, each presents risks of interpretive bias, of inconsistency, as well as of unequal implementation[18]. Age and maturity, with credibility, can influence the weight that courts give to children’s views, as outlined within Section 1(3) of the Children Act 1989 [19]as well as case law such as Re S [2010] and Re W [2010]. [20]Despite all of these mechanisms, people do worry about the emotional burden that children bear, [21]particularly at times when people do not accompany participation with trauma-informed procedures or with national guidelines.[22]
These findings highlight that fragmented implementation remains, while children’s participatory rights have institutional and legal recognition. Judges do exercise discretion, and standardised tools are simply absent. This does compromise the uniform application of children’s rights across England and Wales. This inconsistency weakens Article 12 within the UNCRC, which mandates that children’s views be given due weight. Furthermore, it worsens inequality regarding justice access especially for children socioeconomically disadvantaged or vulnerable [23].
Within the wider legal sphere, people have rising expectations for domestic family courts to meet global benchmarks on children’s rights. The current analysis supports several solutions: judicial interview protocols must be formalised to ensure fairness; the use together with accessibility of Voice of the Child Reports must be expanded using neutral, trained professionals; also, investment in Cafcass officer training must increase to foster child-sensitive communication. Also, national laws must protect children’s rights to participate, and guidelines should reflect effective practices like the Lundy model. Empirical investigation by researchers into lasting participation effects would provide understanding that is important for reform.
Children seek meaningful participation, as evidenced by the Family Justice Young People’s Board confirms, not decision-making control. Therefore, a reformed system must respect capacities as they evolve.[24] It must also seek to avoid placing undue psychological weight upon children. A balanced approach would promote fairness, protection, and legitimacy within family justice because it ensures that children’s voices improve, not complicate outcomes in their best interests.
Conclusion
in conclusion, this article sets out, with the intention of examining, the multifaceted problem of just how much emphasis family court proceedings should be placing on children’s voices, particularly with regard to access and custody matters. Domestic legislation such as the Children Act 1989 as well as the Children and Families Act 2014, with international standards like Article 12 of the UNCRC, explores and shows that while children have a recognised right to be heard, the extent to which their views are actually given weight remains inconsistent and often depends on subjective judicial discretion.
Children’s voices are captured through a variety of methods that include Cafcass reports, judicial interviews, guardianship under Rule 16.4, and rarely used Voice of the Child reports. However, some risks are involved in each method. Practitioner influence as well as interpretative bias plus emotional strain upon the youngster can be risks. Courts do frequently consider authenticity, age, maturity, and also freedom from manipulation when evaluating children’s opinions, yet diverse findings do result from the lack of established rules. Australia and New Zealand show relative systems. These systems use structured as well as neutral participation approaches to involve children more fairly and successfully.
This is an important issue since inconsistent practices might weaken family law’s legitimacy, compromising children’s rights. The children could feel worse now. This could happen if their voices are improved upon or diminished. Given the court’s primary concern, both sufficient actions and sufficient context are needed.
This article deems a just approach focused on children to be required. This sort of method should be formal. The procedures must therefore have been well-defined. Children must participate in it as well. Furthermore, bias should be absent from impartial professional reporting. Protocols sensitive to trauma should also be implemented. Because of the way that children’s skills are growing, courts are required for the safeguard them from emotional strain. Fairness, trust, as well as positive outcomes occurring in family law procedures would be improved upon. A modern system regarding children’s opinions would fulfil legal requirements.
Reference(S):
Children Act 1989
United Nations Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) UNTS vol 1577, 3, art 12.
Mabon v Mabon [2005] EWCA Civ 634
Re D (A Child) [2006] UKHL 51
Re A (Children) [2012] EWCA Civ 185
Children Act 1989, s 1(3)
Re S [2010] EWCA Civ 325
Re H [2014] EWCA Civ 733
Re W (Children) [2010] UKSC 12
Jane Fortin, Children’s Rights and the Developing Law
NSPCC and Victim Support, In Their Own Words: The Experiences of 50 Young Witnesses in Criminal Proceedings (2009)
House of Lords Select Committee on the Children and Families Act 2014, Children and Families Act 2014: A failure of implementation (HL 100, 2022–23)
Laura Lundy, ‘“Voice” is not enough: conceptualising Article 12 of the United Nations Convention on the Rights of the Child’ (2007) 33 British Educational Research Journal 927
https://www.jstor.org/stable/30032800
Laura Lundy, ‘Voice is Not Enough: Conceptualising Article 12 of the United Nations Convention on the Rights of the Child’ (2007) 33 British Educational Research Journal 927.
UNCRC, Convention on the Rights of the Child (1989) https://www.unicef.org/child-rights-convention/convention-text accessed 11 May 2025.
NSPCC, How Safe Are Our Children? 2020 https://learning.nspcc.org.uk/research-resources/how-safe-are-our-children accessed 11 May 2025.
Linda Cusworth et al., Uncovering Private Family Law: Who’s Coming to Court in England? Summary (Nuffield Family Justice Observatory 2021) https://www.nuffieldfjo.org.uk/wp-content/uploads/2021/05/nfjo_whos-coming-to-court_england_summary.pdf accessed 11 May 2025.
Re D (A Child) (Abduction: Rights of Custody) [2006] UKHL 51, [2007] 1 AC 619
Children Act 1989, s 1(3)
Re S (A Child) [2010] EWCA Civ 325
NSPCC, How Safe Are Our Children? 2020 (NSPCC 2020)
House of Lords Select Committee on the Children and Families Act 2014, Children and Families Act 2014: A Failure of Implementation (HL 2022–23, HL Paper 100)
UNICEF, Convention on the Rights of the Child: Children’s Version (UNICEF, 2021) https://www.unicef.org/child-rights-convention/convention-text-childrens-version accessed 11 May 2025
Family Justice Young People’s Board, Annual Reports and Updates 2018–2022 (Cafcass) https://www.cafcass.gov.uk/about-us/family-justice-young-peoples-board/ accessed 11 May 2025.
[1] Children Act 1989
[2] United Nations Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) UNTS vol 1577, 3, art 12.
[3] Mabon v Mabon [2005] EWCA Civ 634
[4] Re D (A Child) [2006] UKHL 51
[5] Re A (Children) [2012] EWCA Civ 185
[6] Children Act 1989, s 1(3)
[7] Re S [2010] EWCA Civ 325
[8] Re H [2014] EWCA Civ 733
[9] Re W (Children) [2010] UKSC 12
[10] Jane Fortin, Children’s Rights and the Developing Law
[11] NSPCC and Victim Support, In Their Own Words: The Experiences of 50 Young Witnesses in Criminal Proceedings (2009)
[12] House of Lords Select Committee on the Children and Families Act 2014, Children and Families Act 2014: A failure of implementation (HL 100, 2022–23)
[13] Laura Lundy, ‘“Voice” is not enough: conceptualising Article 12 of the United Nations Convention on the Rights of the Child’ (2007) 33 British Educational Research Journal 927
https://www.jstor.org/stable/30032800
[14] Laura Lundy, ‘Voice is Not Enough: Conceptualising Article 12 of the United Nations Convention on the Rights of the Child’ (2007) 33 British Educational Research Journal 927.
[15] UNCRC, Convention on the Rights of the Child (1989) https://www.unicef.org/child-rights-convention/convention-text accessed 11 May 2025.
[16] NSPCC, How Safe Are Our Children? 2020 https://learning.nspcc.org.uk/research-resources/how-safe-are-our-children accessed 11 May 2025.
[17] Linda Cusworth et al., Uncovering Private Family Law: Who’s Coming to Court in England? Summary (Nuffield Family Justice Observatory 2021) https://www.nuffieldfjo.org.uk/wp-content/uploads/2021/05/nfjo_whos-coming-to-court_england_summary.pdf accessed 11 May 2025.
[18] Re D (A Child) (Abduction: Rights of Custody) [2006] UKHL 51, [2007] 1 AC 619
[19] Children Act 1989, s 1(3)
[20] Re S (A Child) [2010] EWCA Civ 325
[21] NSPCC, How Safe Are Our Children? 2020 (NSPCC 2020)
[22] House of Lords Select Committee on the Children and Families Act 2014, Children and Families Act 2014: A Failure of Implementation (HL 2022–23, HL Paper 100)
[23] UNICEF, Convention on the Rights of the Child: Children’s Version (UNICEF, 2021) https://www.unicef.org/child-rights-convention/convention-text-childrens-version accessed 11 May 2025
[24] Family Justice Young People’s Board, Annual Reports and Updates 2018–2022 (Cafcass) https://www.cafcass.gov.uk/about-us/family-justice-young-peoples-board/ accessed 11 May 2025.
