In the event that the family unit breaks down, it is often the case that the children are the ones to suffer and be disrupted the most. If the parties involved cannot come to an agreement, they then involve the legal system which has sparked a wide debate by the government and other interested authorities whether it is absolutely necessary for children to have an involvement in the post separation process and other welfare disputes as well as the extent to which they should be. Using the Welfare Checklist as the legal framework established in The Children Act 1989, this dissertation aims to analyze relations between the 3 key parties (the parents, the judge and CAFCASS) in these proceedings who are tasked with exploring and deciding the best interests of the child whether determined genetically or legally. Those genetically invested in gaining the best interest of the child will be the child’s biological parents or those who hold any genetic investment whereas the scope of those with a vested legal interest is perhaps wider to encompass the legal system, the social services system as well as those that have a legal involvement in the child i.e. adoptive parents or grandparents. This evaluation will also be weighed against the involvement of Article 8 HRA and contrasted against other jurisdictions. Since the late 1800s and early 1900s, even though there was widespread consensus that children should be more protected by the law and attempts were made to in law to reflect this. It is inevitable that in matters as sensitive as separation of the family unit, it will be the case that one party may feel slighted, the law recognises this but the main concern is how to properly protect the children and stop them from becoming ‘tools’ or weapons.Although good progress by way of legislation over the past 30 years has been made in allowing children a voice, the ultimate goal of this dissertation to be able to acknowledge that progress made and surmise whether more can be done to ensure that children are afforded as much protection as possible.
History of the Children Act 1989
Based on the findings by Dr Barnado of rhe poor law which was later abolished in 1948, although the report was commissioned as an assessment of the Poor Law and how it protected children in poverty, the sentiments are all the same. The report blamed parents for not ensuring their children’s welfare thus reform was needed in this respect but also having local agencies whose sole goal was to protect children. Prior to the Children’s Act 1989, it’s fair to say that in matters of their welfare e.g. divorce or custody proceedings, children’s views went unaccounted for, despite there being many efforts to protect children. It wasn’t until the Convention on the Rights of the Child was ratified in 1989 that it was decided that children need to be awarded more voice in matters their welfare. This was done to promote the fact that children also have human rights to be recognised and the family is an institution that is to be protected but most importantly for children to grow and develop to their full potential they must be provided with a loving and happy family environment which is the aim of the Children Act 1989 to give children a voice and create guidelines that seek out the best result for the child in matters of their welfare. The act was welcomed with differing opinions, Shirley Jackson viewed it as “a parents’ charter which puts children at risk” whereas Lord Chancellor McKay described it as “the most comprehensive and far reaching reform of child care law in living memory”
History of CAFCASS
The Children and Families Court Advisory Support Service was established by the Criminal Justice and Court Services Act 2000, officially established in 2000, in replacing the family Court Welfare Service, CAFCASS was to be an independent organisation responsible for safeguarding and promoting the welfare and interests of children involved in family proceedings. When left to the courts to decide matters regarding a child’s wellbeing, the CAFCASS will give to the courts about any application made to it as well as making provisions that ensure the children are represented in the proceedings.The opinions and findings of these officers are highly esteemed and regarded as expert therefore will influence the way the courts and local communities arrange the child’s care. The presence and function of such a body has been subject to mixed opinion.
The Best Interest Test
- The ascertainable wishes and feelings of the child, If the child is of the correct age whereby there are able to articulate their own wishes and feelings, then the court will take these into account whereby if the child is of a young age then it is at the courts discretion to ascertain the child’s feelings.
- The physical and emotional needs of the child
- The effect any change of circumstances will have on the child
- His age, sex, background and any characteristics of his which the court considers relevant;
- Any harm which he has suffered or is at risk of suffering;
- How capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;
- The range of powers available to the court under this Act in the proceedings in question.
Pitting parents and guardians against each other
The proper interpretation and application of the Children Act 1989 in the context of this dissertation hinges on the notion of parental responsibility which is a question that the courts must account for in welfare decisions as well as CAFCASS when making child care arrangements. Parental responsibility refers to the rights, powers and responsibilities one hold over a child and the child’s property. The one who has this responsibility can make the decisions pertaining to the child’s care and upbringing e.g. where they go to school, where they live. To elude any misconception, it is important to note that parental responsibility is not simply limited to the birth parents nor it is automatically conveyed in certain circumstances but any adult who the courts have deemed fit to care for the needs of the child.
The prospect of parental responsibility was created to detract from the idea that parents have rights to their children but to focus more on the duties of whoever has legal obligation over the child. Traditionally in this sense, the legal system has been known to assert that the child’s best interests will always be to be raised in a house with their natural parent which is an intrinsic value, although this comes into dispute where the child has not known or has spent the majority of their life living with a non-biological parent/ guardian but the court will nonetheless take the view to place them with the biological parent as discovered in Re D (Natural Parent Assumption) whereby 3 children (E,J,A) were subject to care proceedings, the courts then sought to place E and J with their grandmother and J would be placed with his biological father, the grandmother strongly believed that the 3 children would be better off with her. The courts acknowledged that both the grandmother and father were capable of caring for the child but in the end obliged the grandmother’s request mainly for the reason that it would be damaging for the child to be separated from his siblings. Upon appeal, it was held that the judge had erred in not accounting for the natural parent presumption thus placing too much weight on the child’s need to maintain a close proximity with his siblings. This decision signified how highly the natural parent presumption was regarded in family law even in instances where there was a much more suitable or capable carer to care for the child involved which called for some reform in the law, the courts have since moved on from the view of the natural parent presumption, most recently brought out in the case of Re E-R (A Child) whereby a dispute arose after the child’s biological mother died between the biological father and the mother’s friends who had been appointed as guardians over the child. The father of the child challenged the guardianship asserting that it was in the child’s best interests to be with their natural parent, although in the Court of Appeal, the judge was seen to have incorrectly analysed the facts to be in line with the natural parent presumption. Lady Justice King stated “being a natural parent does not create a presumption in favour of that person, neither does the length of time that a child has been living with a person – the welfare checklist should be applied and a decision made on what is in the child’s best interest.” This statement was praised as a good progression towards the desired outcome whereby all decisions would indeed have the best interests of the child at the forefront. The courts are caught up in between two parties who both claim to want and know what’s best for the child and sometimes it can be difficult to come to the right decision
Reconciling the court’s duty of child protection against the Article 8 right.
It is a matter of no dispute that there are situations where it is necessary for the courts to get involved in matters of child welfare and the child may come to some harm whereas in instances that the family has broken down or are struggling to communicate in a way to achieve the best and healthiest outcome for the child and look to the courts, it is a given that the courts are empowered to intervene and help push the process along but some schools of thought have always wondered if the courts should be getting involved, hence some reform into the process i.e. instead of sending families straight to the courts, opting for conciliation or mediation. From the human rights points of view some argue that the courts have no place in some of these matters, that It is a violation of the Article 8 Right to Private and Family Life and whether this is signal of an increasingly paternalistic society. Article 8 protects the right to respect for one’s private and family life, their home and correspondence.
When the courts are involved the welfare of the child is the paramount concern and all decisions should be taken with a view to that. S.1 of the Act has thus been interpreted by some to mean that the court’s sole considering should be the interests of the child/children involved which has meant that in previous instances, UK family law has not been in accordance with Article 8. For instance, take the case of A (A Child) regarding a no direct contact order against a father whose daughter was almost 14 years old, following the separation of the parents and 82 court orders the trial judge decided that the child should live with her mother and would have no direct contact with her, this decision was reached after conversation with the daughter who expressed that she would like to maintain no contact with her father. This case had spanned for close to 12 years since the child was 2 years old, as the mother also suffered from ill-health that often complicated rulings, the mother often also refused to make the child available to adhere to the contact order, throughout the time it is to be noted that the child herself displayed an indecisive attitude towards contact. The child’s position as she grew older started to harden and she was now against contact as at some point she returned from a contact visit with bruising which the father owned up to, the child then refused further contact unless supervised. By the age of 10, the child was now protesting any further court involvement, deeming it counterproductive as she knows she wants to live with her mother and is willing to maintain contact with her father as necessarily required. The courts then had further issues in trying to determine how much weight should be placed on the views of the child which led the courts to make no order of contact but hold that the father is at liberty to send emails or texts as he so wishes, the father asserted that his Article 8 right had been breached i.e. his family rights and his child’s had been violated as they were now disrupted from having an effective relationship with each other. The overall view with regards to the wishes and feelings of the child was that they should not overshadowed or overridden in anyway which was a positive move on the part of the courts in terms of respecting the wishes and feelings of the child. The courts later held that there had been a violation of both parties’ article 8 mainly by way of the lengthy nature of the proceedings and the court’s extended intervention into the matter. It was argued that from a procedural point of view the courts had ideally ‘overstayed their welcome’ in the matters of one family which can also have a bearing on future cases and not wanting to infringe article 8, in the sense that the courts may seek to expedite matters or produce their decisions in a way that does that not disrupt too much of the family’s life or take up more time than has already been done.
Should CAFCASS reports be held in such high esteem?
During the customary process of court hearings regarding a child’s welfare and an agreement has not been reached following the 1st hearing, a CAFCASS officer is then allocated to the proceedings. The officer then compiles a section 7 report based on guidance from the courts, this report may require the CAFCASS worker to speak to the child or other family members as well as the key parties involved, having done so the officer in the report will make a recommendation to the courts as to what the outcome should be i.e. the most beneficial result for the child. As previously mentioned CAFCASS have been heavily criticised, mainly since the impartiality they were created to show is often not communicated in the decisions they make or how they have reached such decision, also due to the high demand they are in, some officers may wish to make decisions that seem the simplest and on the face of it, in the best interests of the child so as to cope with the demand and meet set targets. These criticisms have occasionally gone as far as to amount to physical violence or abuse.
In theory, the officer assigned to the case should approach the case in an independent manner and make their decision based on the facts as they have gathered them whereas in reality, the officers have been seen to decide the ‘easiest route’ in terms of when the officer Is invited into the situation and there’s already an established routine for the children, the officer will sometimes make the decision not to disrupt it e.g. if the family is already separated, the children are already living with one parent and occasionally having contact with the other, in not wanting to disrupt the routine the children are in the officer will make suggestions in their report to that effect. Another aspect of criticism for CAFCASS is the mode of operation, in that in most cases parents don’t get access to the report until just before the hearing often meaning they do not have any time to object to any aspects of it let alone digest the detail of it which can sometimes add fuel to an already emotionally charged situation. A recent example of this is in the case of Re N-A(A Child) relating to a separation dispute whereby the father in looking to relocate his 14 and 16 year old sons to Iran but after a meeting and conversation with the judge, as well as the CAFCASS officer, both the mother and the officer felt this was not a good idea and would provide no benefit for the children which eventually the judge decided to this effect. Although the judge also noted that from their meeting, although the boys were saying they would love to move to Iran, she had the impression that they did not fully appreciate what this means. The father appealed based on a number of reasons but one of them being that in the CAFCASS report, there had been an insufficient account of the benefits of the move for the boys, also in the report there was no mention of factors in favour of the move although this was rejected on the basis that there was no sufficient reason to suggest that the report had been unbalanced in any way. This case goes to support the previous criticisms held that at times officers do not practice impartiality but instead seek to promote the ‘status quo’ for the children and not disrupt their lifestyle and as demonstrated in the above case, sometimes this may also mean a disregard of the wishes and feelings of the child as communicated.
Should children be afforded a larger voice in matters regarding their own welfare?
The Best Interest test as in section 1 of the Children Act was framed by Article 12 of the UN Convention on the Rights of the Child which states:
- States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
- For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.
Within the ongoing disputes whether post separation or regarding child custody, there has always been a looming question of whether children should be given the opportunity to express their own views. Perhaps when the child is of an older age, the courts feel more at ease with taking an account of their wishes and feelings as put by Pryor and Emery ‘children are not able to say anything sensible until about the age of twelve’ whereas the law has habitually taken a blunt stance on these matters i.e. by stating that it is one way or the other, the child either has the capacity to understand and comprehend the severity of the matters before them or they do not. Courts in various jurisdictions have taken differed approaches to the issue capacity which will be explored further in the coming section. The Gillick competency principle although concerning the child’s right to consent to medical treatment has formed much of the law surrounding the capability of the child in matters regarding their welfare and their care. The legal reluctance arises in deciding to allow children a voice in a way that they feel their views are respected but in the same breath they don’t feel pressure or guilt over the outcome having been placed in the middle of the conflict.
To illustrate, take the case of P-S(Children) whereby a 15-year-old sought to appeal the court’s decision on the basis that he was not afforded opportunity to give oral evidence therefore his wishes and feelings were not accounted for. The courts in this instance held that the child had no right to give evidence in proceedings pertaining to his future welfare as there were other ways the court could gain access to this information meaning his evidence would bring nothing new to the case. The decision in this case can be taken positively or negatively, it is positive as the legal system and those involved are constantly evolving and adapting new ways to account for the voice of the child whereas it can be argued that these other forms of expression do not hold much weight compared to actually having the child be in the proceedings or give evidence physically. This has led to a rise in the practice of judges seeing children privately so as to promote a comfortable environment when the child doesn’t feel pressured to convey a certain view out of fear of displeasing an adult but it also allows the judge to use discretion in assessing whether the child has fully comprehended the severity of the situation and their role.
Children themselves have seemingly been divided about their involvement as some children would welcome the chance to be involved in the proceedings whereas some children would opt not to have any kind of say out of fear of ‘being made to choose’ between loved ones. In the course of their research, Parkinson and Cashmore conducted research into many factors affecting the voice of the child in family disputes. During the course of the study, they found that 91% of children would have preferred to be involved in proceedings whereas there were few children, mostly the young ages who would not want to play any part, mainly citing the reason that being asked would put them in a difficult position.
In view of everything, the issue is not that the legal system needs to afford children a larger voice in proceedings regarding their welfare but instead all that is required is a rewiring or adaptation of the current practices and laws surrounding the area. For example regarding the issue of capacity should not be so heavily dependent on the age of the child, more so on the maturity of the child, thus accounting for each child as an individual, respected human being which is the aim of Article 12 of the Conventions of the Rights of the Child recognising that children are different and develop as such therefore a child of 9 years old may be able to comprehend the decision he is being asked to be a part of and want to take part whereas another child of the same age may not understand what is happening and be traumatised by the pressure of trying to please the adults. One worry is that although it may be recognised that the child is mature enough to appreciate the situation at hand, they are still a child and often want to please their parents, there have been many reported instances of children being ‘coached’ by either parent on what to say to the judge or the CAFCASS officer, which can make difficult the job of trying to determine just how of the child’s wishes and feelings are really their own.
Jurisdictional comparisons of applications of the Welfare Checklist
The US Legal System
The US legal system holds to a high standard the ‘Best Interests of the Child standard which has served to override the principle of the parental rights. Some parents have used this principle as a clean slate in which they can be able to impose their own agenda and ideas about what is good for the child. One case that thrusted into the spotlight the issue of children’s rights was the Baby Jessica case in which there was a custody dispute between the birth parents and the adoptive parents over 2-year-old baby Jessica. Baby Jessica had been removed from the home of her mother and placed for adoption with another couple, shortly after Jessica’s biological father who had not been named on the birth certificate by the mother sought custody therefore the adoption was conducted without his consent and the courts obliged in favour of the natural parent presumption although the baby had known her adopted couple as her real parents, this raised a debate of children’s needs against the natural parent presumption. At the time there was much uproar amongst the media and other schools of thought over the system treating children as mere property as opposed to humans with rights and wishes that must be accounted for. This has since shaped the state of US family law today in the courts placing the child as the basis for the decision, having it as a set legal formula.
Australian family law
In similar fashion to UK family law, the Australian Family Law Act of 1975 was amended in 1995 to include the words ‘best interests of the child’ so as to be in line with the UN Convention on the Rights of the Child, although within that legislation, the principles of the welfare checklist as known in English law is only regarded as additional principles with the primary considerations being
“(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.”.
Given that the most importance is placed on the child’s relationship with the parents, this can mean that occasionally the child’s opportunity to communicate their wishes and feelings as well as the value of that account may go unrealised simply because the courts value the importance of keeping the family unit together. It is to be noted that up to now amongst the different interested parties, there remains little accord as to what the best interests actually are thus how reliable can this principle be if no one can come to an agreement as to what it means. Some Australian scholars have consequently argued that for less involvement of this principle in family law simply because it proves difficult to hold reliable or trust the decisions and practices that come from a principle that no one can fully grasp, It calls into question the validity of any matter settled on the basis of that principle. This is not entirely the case for the fact that even though there is no certain definition of it, there seems to be a consensus state wide as to what the principle aims to achieve therefore the decisions made on the face have to be taken as such. Even though ‘best interests of the child’ is not a certain term, there is confidence that with the use of that term all parties involved at least have an understanding or appreciation of what the goal is i.e. to achieve a result that best promotes the welfare of the child.
Conclusion
This area of family law is a complex one simply because no two families are ever going to be the same even more so the children involved and trying to achieve the best outcome that promotes their wishes and feelings will be difficult. Despite the constant advancements in the law, it is still difficult to reach a consensus i.e. have some universal law/principles that can be fairly and flexibly applied to each and every situation leaving every party involved satisfied with the outcome. It is clear that there are still some ways to go and various methods of reaching this position can be suggested. The most important factor to note is that in the face of all the changes, the welfare of the child remains paramount.
Even though all parties involved wish to achieve the same objective which is an environment that is best suitable for the child, it is clearly seen as discussed above that the different parties have different notions as how this objective should be reached and often time they feel the other parties involved are doing more harm than good, often times each party may have a second agenda of their own they’re trying to promote. The parents or guardians will have locked horns therefore the child has now become a weapon for either party to punish each other whilst at the same time being a prize that’s ‘up for grabs’, although they presumably want the best outcome for the child, each party will do everything to ensure that they ‘win’. On the other hand, with regards to the CAFCASS, although their sole job is to promote the best outcome for the child, it is to be appreciated that similar to judge, it will not be the only case they have to handle and they have a great caseload to deal with in a certain amount of time, which can sometimes compromise the quality of the advice given. Despite these factors regarding the genuineness of the parties, they still look to achieve and promote the best interests therefore some legal tweaking may be required in relation to the job done by each party but also the level of involvement of each party, some of which to be discussed below:
- Pass law rendering it necessary for each family in consideration of separation or divorce to go through mediation, as this would offer the opportunity for the parties involved to try and reach an agreement that does not have to get chaotic especially when there are children involved, thus limiting the chances for emotional harm on the part of the child. This idea of mediation will also go hand in hand in the legal system seeking to respect the private and family life of individuals, by not having a big part to play or seeking to have such strict regulation of the affairs of private family members. Limiting the amount of judicial influence may help to remove the overreaching hand of the law and maintain the sanctity of family, this can also be achieved by establishing other bodies to deal with these matters, not necessarily a judicial system.
- It is important to recognise how far the law has come in terms of giving children a voice in matters of their welfare and following further research, it is not that they need to be awarded more of a voice but reforms in the way they are allowed to express that voice would be more suited. Where appropriate it would be better for the courts to go directly to the child themselves as opposed as seeking to employ the different parties or other bodies to account for those views as each party will hold the view that best accounts for their own desires i.e. one way this can be achieved is instead of asking children in the presence of their parents or guardians who they want to live with or having them in an ‘interview room’ environment, it will be better to have the child in an environment that is their own such as a playground with one adult e.g. a child social worker who can speak to the child as this will ensure the child is a bit more calmer and in their own environment as opposed to being in an environment where they may feel the pressure of the situation or the pressure to say what they believe the grown-ups will want to hear.
- The potential limitation of the role that CAFCASS has in proceedings would mostly be welcome by the parties and may serve to better help the proceedings, this can then be remedied by having individual case workers to work with the families but who are not part of a big organisation thus are not susceptible to the pressures of high targets and little time to achieve them therefore reliability is ensured in that the assigned officer will concentrate on the task at hand. One other factor that may affect the quality of work produced by this organisation is that they are subject to politics as they are a governmental organisation which often means budgeting issues or constantly having to defend decisions or criticisms which in turn can once again affect the quality of work thus taking the focus away from the most import thing which is the family unit.
To conclude, it is key to appreciate how far UK law has come in this aspect, in promoting the voice of children in proceedings but it is important to note that further work is needed to reach a consensus on the matters as well as a scaling back of the law, to limit the growing of an interfering legal system.