The Voice of the Child within Private Law Proceedings

The participation of children in proceedings presents a quandary: how do we involve children meaningfully within proceedings whilst simultaneously protecting them from harmful exposure to parental conflict? This is particularly challenging in the context of private law proceedings where there are allegations of malign parental influence on the expressed views of children.

The wishes and feelings of children are of central importance, as enshrined within the welfare checklist.[1] It is too simplistic to fail to engage children within proceedings for fear of worsening their experience of parental conflict. We ignore the children at the heart of our cases at our peril.

It must be utterly disarming for a child to feel ignored or silenced within the struggle of protracted contested proceedings of which they are the subject. 

The 2024 study, "Uncovering private family law: how often do we hear the voice of the child?” conducted by the Nuffield Family Justice Observatory found that almost of half of children (46.1%) of children, including older children and teenagers, did not have any indicators that they had been consulted directly during the course of proceedings. The worst outcomes in terms of levels of participation being for children without siblings living in the least deprived areas of England and Wales. Children with two or more siblings had a statistically significant increase in participation. 

The findings of the Nuffield FJO report present a significant challenge to the family justice system as a whole, forcing reflection on the changes needed to ensure that there are effective mechanisms in place to ensure that children’s voices are heard within proceedings. It is of some interest that the report positively notes the integrated mechanism of the pathfinder model to capture children’s wishes and feelings from the outset of proceedings. It may be that such an observation gives credence to this model and harks the beginning of a new approach as the model is increasingly rolled out across England and Wales.

The case of Tom (a child, by his r.16.4 Children’s Guardian Stephen Fitzpatrick) v M and another [2024] EWFC 313 (B) (hereafter Tom v M) raises an interesting point regarding the involvement of children within proceedings and their ability to effectively participate in proceedings. Tom, aged 13, applied for permission to make an application to live with his father and to attend a different school. This application was made against a background of previous contentious proceedings which had resulted broadly in a shared care arrangement. The court did not grant Tom permission to make an application and made a section 91(14) order preventing him from issuing any applications until he was 16. HHJ Muzaffer details the case law concerning whether a child should be separately represented[2] and uses the framework set out in Re CS to assess the child’s understanding. The court ultimately determined that Tom did not have sufficient understanding in great part due to the influence of his father and his failure to understand previous judgments. There is a bitter dichotomy of this determination where the child is denied participation yet criticised for a lack of understanding. The facts of the case pointed firmly to the fact Tom had already suffered emotional harm due to his embroilment in parental conflict prior to his application. This approach is entirely understandable but, one cannot help but wonder whether continued exclusion, particularly through the making of a section 91(14) direction with the aim of protecting a child, will serve its intended purpose.

HHJ Muzaffer evidently recognised the risk of continued misunderstanding for Tom. The judgment is in two parts – the conventional judgment and an abridged accessible form specifically for Tom. It is of some interest that the judge opted not to draft a letter to Tom preferring the formal  judgment structure noting: “A separate judgment prepared for Tom's benefit has also been circulated, it being considered that Tom would prefer this approach to the decision being communicated in the form of a letter.”

This approach gives weight to the recent judicial guidance published in May: Writing to Children: A Toolkit for Judges. The guidance immediately draws to mind the brilliance of Re A (Letter to a Young Person). A Mr Peter Justice Jackson (as he then was) masterpiece in communicating difficult decisions to children. It reminds of the value of involving children particularly where decisions do not accord with their stated wishes and feelings. It is in those cases that the risk of polarisation and wilful misinterpretation is at its greatest. The emotional harm stemming from misinterpretation particularly where it is likely to be weaponised by one parent can be mitigated to a certain extent by accessible judgments and clear explanations to children. 

The ascertainable wishes and feelings of children are to be considered in light of the child’s age and understanding. This qualification is key. The recent case of M (Children: Contact in Prison) [2024] EWCA Civ 1104 demonstrates the consequences of failing to grapple with that qualification. The risk of placing undue weight on children’s wishes and feelings is that a short-term view is given precedence over the long-term welfare consequences for children. 

In M (Children: Contact in Prison) the Court of Appeal overturned the decision of Mrs Justice Lieven to direct contact between the children and their father, who had been imprisoned following a conviction of rape of their mother. The Judge ordered the mother to facilitate: a one-off 2-hour prison visit on 13th August 2024 with Guardian support; three annual 4-hour prison visits with the father’s new partner; and monthly 30-minute phone calls. A section 91(14) order was directed for a year, allowing the Guardian to request changes if the initial visit is deemed disastrous. These orders were entirely at odds with the Guardian’s recommendation for written contact and there was an absence of analysis justifying departure from those recommendations save for an insistence that the voice of the child should be prioritised: - “I must listen to the voice of the child, although I am being told to ignore the voice of the child.”

The Court of Appeal determined that in focusing on the voice of the child at the exclusion of other relevant factors, the judge did not take into account or adequately evaluate numerous factors as set out at §20[3]: 

“A decision about contact needed to take account of all these matters, and any others arising under the welfare checklist and PD12J. That did not happen, with the gravity of the father's offending being overlooked, and priority being given to a limited assessment of the children's wishes and the Judge's own perception of their need for contact. The appeal must therefore be allowed.”

This case offers a salutary reminder of the importance of analysing children’s wishes and feelings within a case’s factual matrix and balancing the proper weight of the children’s wishes within the context of their understanding. Children’s voices must be heard within family proceedings. Their voices do not dictate outcomes, but rather provide valuable insight into the impact of proceedings on them and ensuring their participation is vital to informing welfare decisions. These cases raise questions as to whether the current mechanisms are sufficient to ensure their voices are heard and their participation secured within proceedings. 

                                                                                                                                                                                                PRUDENCE J. BEAUMONT

                                                                                                                                                                                                Deans Court Chambers

                                                                                                                                                                                                October 2025 

**Pru returns to Chambers in October 2025 following a period of maternity leave**
 

[1] Article 12 of the United Nations Convention on the Rights of the Child provide that children and young people should have the opportunity to have their perspectives included and considered in legal proceedings that affect them. Article 8 of the European Convention on Human Rights suggests that children should have the right to attend a court hearing where the case impacts on their right to family life.

[2] Re W (Representation of Child) [2016] EWCA Civ 1051, [2017] 2 FLR 199; Re C (A Child: Ability to Instruct Solicitor) [2024] 1 FLR 363 [2023] EWCA Civ 889; Re CS (Appeal FPR 2010, Rule 16.6: Sufficiency of Child’s Understanding) [2019] EWHC 634 (Fam), [2019] 2 FLR 580

[3] (1) The fact that the father has been convicted of domestic abuse of a most harmful kind, a finding which binds the Family Court. 

(2) The impact of the rapes and of the order on the mother, as required by PD12J.

(3) The significance of the father's unrepentant attitude since conviction as a measure of his ability, and that of Ms V, to meet the children's needs. 

(4) The weight that was properly due to the children's wishes in the light of their limited understanding of the family situation and their apparently settled state.

(5) The balance between their need for contact with their father and their need for continuity of secure care by their mother.

(6) The potential for unsupervised contact to unsettle the children and harm their relationship with their mother by exposing them to conflicting narratives. 

(7) The appropriateness of Ms V being the facilitator of contact, given her identity of views with the father. 

(8) The practicality of telephone contact being supervised.

(9) The justification within the evidence for rejecting the expert assessment of the Guardian.