Children Involved in the Seperation or Divorce of their Parents

The Children Act 1989 aims to encourage parents to agree about the child’s welfare in the event of separation or divorce by providing for the continuation of parental responsibility for divorced parents and by requiring the courts to refrain from making orders unless they are desirable in the child’s best interests (the ‘no order’ principle). This approach is reinforced by the development of conciliation and mediation processes to assist parents to reach agreement.

Where there is agreement between parents they are not required to attend court in divorce proceedings in relation to the children. The court must simply be satisfied that appropriate arrangements have been made for children having received a written declaration to that effect and the divorce is granted. In cases where the court is concerned about the plans for the children it can order a welfare report but this power is very rarely used. However it is concerning that in an uncontested case there is no formal way in which children can express their views if they wish to do so.

In 2001 the Children and Family Court Advisory and Support Service (CAFCASS) was established. CAFCASS has a number of functions. In this context the most important is the provision of Child and Family Reporter to carry out conciliation and reporting functions in disputes between parents over residence and contact.

Parents making applications for residence or contact with a child may be required to attend a conciliation appointment with a mediator or child and family reporter. The purpose of the conciliation stage is to assist the parties to resolve their disputes. If this is not possible then the Court may order a report to be prepared on the matter of residence or contact. A child and family reporter involved at the conciliation plays no further part in the process and does not participate in the preparation of any reports for the court.

In addition to applications for residence and contact, which are made under section 8 of the Children Act 1989, parents can also apply for a specific issue order requiring a particular action by another parent or for a prohibited steps order to prevent a parent from taking certain steps, for example removing a child from the other parents care and control. Section 8 applications often involve the use of child and family reporters to provide the court with an objective assessment of what is in the child’s best interests. Children and young people may apply to court for section 8 orders provided they can demonstrate sufficient maturity and understanding. However, the court does not have to grant a child leave, and retains a discretion to refuse an application of a competent child.

Welfare Principle

The concept of welfare is not defined in the Children Act 1989 but the following factors which constitute the ‘welfare checklist’ are used to assist the Court in its determination:

• The ascertainable wishes and feelings of the child – in light of his or her age and understanding;
  
• The physical, emotional and educational needs of the child;
  
• The likely effect of any change on the child’s circumstances;
  
• The age, sex, background and any other characteristics which the court considers to be relevant;
  
• Any harm which the child has suffered or is at risk of suffering;
  
• How capable the child’s parents (and/or any other relevant person) are of meeting the child’s needs; and
  
• The range of powers available to the court.
  

The child and family reporter is also required to take the welfare checklist into account in the preparation of his or her report.

Article 8 of the ECHR – the right to respect for family life – impacts on this decision making process in that a court must be aware of the parents’ right to respect for their family life. The courts have taken the view that while a balance must be struck between the competing interests of parents and children, the welfare principle continues to predominate under the Children Act 1989.

See also – THE HUMAN RIGHTS ACT

Representation of Children in private law proceedings

The law has recently been amended to provide for the separate representation of a greater number of children subject to private law applications under the Children Act 1989 (eg applications for residence or contact orders in respect of children.
However, a 2006 DCA consultation paper proposes to restrict the separate representation of children in family proceedings to where there is a ‘legal need’, and questions the need for a child’s representative to be present at all hearings.

In most cases such children will not participate directly but will be represented by a children’s guardian appointed by CAFCASS. Most children’s guardians have worked as social workers but they are appointed to act independently and to represent the child’s interests. A guardian works in partnership with the child’s solicitor and where it is considered appropriate they can instruct independent professional experts such as psychiatrists or psychologists to prepare assessments and reports to assist the Court.

Further, the courts are increasingly recognising the right of children to participate directly in proceedings that affect them. In the Mabon case, in 2005, three children (aged 17, 15 and 13) appealed against a judge’s refusal to remove their guardian to enable them to instruct a solicitor independently. The appeal court found they were plainly entitled to separate representation. Where children have sufficient understanding the court must have regard to their rights under Art 12 UNCRC and Article 8 ECHR.


Contact Disputes

The question of how much contact a child should have with a non-residential parent is a difficult matter for the court to resolve to the satisfaction of the parents and the child. Under the Children Act 1989 contact is expressed as a right of the child although the ECHR has recognised it as an element of a parent’s family life. In striking a balance between the competing interests the courts are guided by considerations of the child’s welfare as the paramount consideration but the view in the vast majority of cases is that maintaining a relationship with both parents is in the child’s best interests. Terminating direct contact between a child and a non residential parent is a rare occurrence and usually only happens where there has been violence or abuse of an extreme nature or where for other reasons the child does not wish to continue to have a relationship with his or her parents.

More recently, the Children and Adoption Act 2006 has given the courts greater powers to enforce orders for contact (although at the time of writing these have not yet come into force).