Why is a child led approach to family court proceedings beneficial? We examine the approach and why it is becoming an increasingly popular approach to family court proceedings.
A family court scheme that adopted a more child-led approach to resolving disputes will be extended following data showing that cases were being resolved nearly three months more quickly, halving the backlog of cases in Dorset and North Wales.
Recently, we saw an announcement of a £12.5 million funding boost to expand the ‘Pathfinder Pilot’, which was previously extended to South Wales and Birmingham, and will now be introduced to other areas of Wales and West Yorkshire. As reported by the Law Gazette, the open caseload has massively fallen and cases were resolved in much better time when families are not pitted against one another. As outlined by Justice minister Lord Ponsonby, ‘children and vulnerable people bear the brunt of [abusers in the family court] and it must stop. Pathfinder has been welcomes as a less adversarial approach, and early evidence shows it’s working. This is another important step to achieving our promise of halving violence against women and girls.’
The original aim of the pilot was to steer away from a litigant-led approach and improve the sharing of information between agencies to allow more informed decision making and fewer hearings, also offering specialist support to domestic abuse victims.
As a firm that often work alongside domestic abuse victims and prioritise ensuring our clients are protected and can approach their cases in the best way possible for themselves, we wanted to explore why developments in this approach are critical.
What is a Child-Led Approach?
A child-led approach in family law centres around making decisions based on what is best for the child, rather than the adults involved in the case. Traditionally, family law has been an adult-centred system, where parents or guardians were primarily responsible for making decisions for the child. However, a child-led approach goes further by ensuring that the child’s voice is heard and considered at every stage of family law proceedings. This includes listening to children about their preferences and experiences and understanding their emotional, physical, and developmental needs in the context of family breakdown or dispute.
The Importance of a Child-Led Approach
The fundamental principle behind this approach is that children, even at a young age, are stakeholders in decisions regarding their lives and futures. Children do, and should, have the right to express their views freely in all matters affecting them, with their views being given due weight in accordance with their age and maturity. A child-led approach ensures this right is upheld, empowering children to participate in decisions that directly impact them.
There are several reasons why a child-led approach is so crucial in family law matters:
- Child’s Voice: Children, particularly those who are old enough to express themselves, may have preferences about where they want to live, who they want to spend time with, or how they want to maintain relationships with parents. Ignoring these wishes can undermine their sense of agency and create long-term emotional harm.
- Welfare: A child-led approach allows for a more comprehensive understanding of the child’s emotional, psychological, and developmental needs. This is particularly relevant in cases of domestic abuse, parental conflict, or when a child has special educational needs or disabilities that require tailored interventions.
- Better Outcomes: Research shows that when children are actively involved in decision-making, they are more likely to feel heard and valued, which can reduce feelings of powerlessness. This may lead to better long-term outcomes for the child, including improved emotional well-being and stronger relationships with both parents.
How a Child-Led Approach Works in Practice
Alongside the Pathfinder pilot, in the UK there are several existing ways in which a child-led approach can be integrated into family law, which is why it is vital that there is a push towards a perhaps more clear approach:
- Mediation and Negotiation: Mediation services increasingly use a child-focused approach to resolving disputes between parents. Mediators can encourage parents to consider the child’s perspective and needs when negotiating custody or visitation arrangements. This approach minimises conflict and aims for solutions that are in the best interests of the child.
- Children’s Guardians: In cases where there is significant dispute, particularly in child protection proceedings or complex custody disputes, a Children’s Guardian can be appointed. The Guardian’s role is to represent the child’s best interests and ensure that their voice is heard in court. They act as an independent advocate for the child, gathering evidence about the child’s needs and preferences and ensuring that these are considered by the court. Our brilliant Samantha Barker is a Children’s Guardian, so please head to her profile if you want to read about some of the cases she has been directly involved in.
- Direct Representation: Depending on the child’s age and maturity, children may be directly represented in court. In some cases, children can be appointed a solicitor to ensure their views are effectively communicated. This is particularly important in cases where the child is at risk of harm or where there are concerns that one or both parents may not act in the child’s best interests.
- Judicial Involvement: Judges in family law cases have the discretion to take the child’s wishes into account, especially when a child is of sufficient age and maturity. However, judges also have to balance this with the child’s best interests, which can sometimes lead to complex decisions. A judge may appoint experts, such as child psychologists or social workers, to assist in understanding the child’s emotional and psychological needs.
- The Voice of the Child in Court: In some cases, a specially trained independent professional may facilitate a child’s involvement in proceedings. For instance, a family consultant can help convey a child’s views and feelings about arrangements like contact with parents, living arrangements, or schooling. The child’s thoughts are often presented in a manner that is sensitive to their age, avoiding undue pressure or trauma.
Challenges of Implementing a Child-Led Approach
Despite its merits, implementing a child-led approach to family law in the UK faces several challenges:
- Age and Maturity: Determining when a child is mature enough to make decisions can be difficult. Children develop at different rates, and what a 10-year-old is able to comprehend may be very different from what a 15-year-old can understand. Legal professionals must carefully assess the child’s capacity to provide meaningful input, which we are always sure to do when we work alongside children.
- Potential Conflicts: Children may feel torn between two parents, especially in contentious custody battles. A child’s expressed preference might be influenced by their relationship with one parent or fear of conflict. Legal professionals must be cautious to ensure that a child’s wishes are truly their own and not shaped by external pressures.
- Legal Framework: While the child’s voice is a critical component, family law in the UK continues to be structured around the principle of “the best interests of the child” rather than solely the child’s wishes. In practice, this can lead to situations where the child’s expressed wishes are not fully adopted by the court if they are deemed to conflict with their overall well-being.
- Limited Resources: Not all children in family law proceedings have access to a Children’s Guardian or independent legal representation. Legal aid cuts and resource constraints in the family court system can limit access to child-centred support, especially for those from disadvantaged backgrounds.
A child-led approach to family law in the UK is a progressive step forward in ensuring that children’s voices are heard and that their well-being remains the central focus in family disputes. That is why we will be following any updates on the pathfinder pilot closely and hope it eventually expands to our neck of the woods, as so many courts across the UK could massively benefit from its implementation. By prioritising the needs and wishes of children, this approach fosters an environment where children’s rights are respected, and better long-term outcomes are achieved, which is always what we aim for in our work. However, its success relies on overcoming challenges such as age assessments, legal constraints, and resource limitations. As the legal landscape continues to evolve, a more inclusive and child-centred approach to family law will likely play a pivotal role in creating a more supportive and empathetic family justice system for all children. Please get in touch if you have any concerns about an issue you might be involved in or simply want to know more about how a child-centred approach could work.
