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Children’s involvement in family law proceedings debated

By February 28, 2018October 25th, 2021No Comments

An article in the UK’s Family Law Week takes a lengthy look at the subject of children’s involvement in family law proceedings, asking whether they are being given the opportunity to play an active role in the cases that concern them.

This subject has also been debated in Australia for a number of years now, with calls for greater participation by children in their proceedings, both to empower them and because evidence from practitioners suggests that children’s views are often actually consistent with what is in their best interests.  More direct engagement of children with judges is thought to be beneficial, although few Australian judges apparently wish to speak to children in chambers at present, for various reasons.  There have also been concerns raised that Independent Children’s Lawyers (ICLs) do not routinely meet the kids they represent.

It’s hopeful the current Australian parliamentary inquiry and also the ALRC review into family law will canvass the topic of children’s involvement in family law proceedings, given the broad scope of subjects being reviewed and the overwhelming need to modernise our family court system, to demystify and increase transparency and generally improve the experience of kids.

With reform similarly on the agenda in the UK, the Family Law Week article discusses how and when children’s voices ought to be heard, both during and after proceedings, because children need to be able to understand the decisions being made about them, and “to have and use their voices” even after proceedings end. This need is said to be even more acute in self-represented court cases when “children and families often do not understand what is happening to them”.

The article discusses the need for children and youths to be given age-appropriate information to keep them up to date on proceedings and to explain the outcomes, and asks whether the lack of appropriate support and assistance for young witnesses (whether parties to a proceeding or not) could amount to a denial of justice.

Some proponents of change have also expressed dismay, for example, at the UK’s habit of referring to children as “it” and referring to children by “soulless initials”, suggesting that judges should instead refer to children by fictitious names to reflect that they are real human beings.  Similarly, in Australia, children are referred to as A, B, C, etc in judgments.

In the UK the changing form of how some judgments are being delivered is seen as a step in the right direction in term so of improving children’s involvement in family law proceedings. In recent years there have been several unconventional judgments by members of the UK judiciary. Famously, Lord Justice Peter Jackson was in the news for two non-traditional judgements.  One judgment was written deliberately in a way to ensure the subject children and mother could follow his reasoning:

“In the judgment legal jargon and complex sentences are shed in favour of a concise narrative which features emojis and which has a relaxed empathetic tenor.”

In his other newsworthy case, the judgment was delivered in the form of a letter addressed to the child, given a pseudonym of “Sam”.

While these judgments have been praised, questions also arise as to whether children need to know the intricacies of the reasons for a judge’s decision, and whether this could in fact potentially cause them harm, due to the uncertainty of how they might interpret a judgment directed at themselves. For example, could they feel a degree of guilt at the case’s outcome if the judgment is written in a way that is so child-centric?

Such judgments might also be unsuitable for other kinds of proceedings due to their heightened simplication being inappropriate in more complex cases, such as ones involving sexual abuse and family violence. The UK article suggests that a solution may be to conclude a judgment with a supplementary “child-friendly judgment or script or letter explaining the judgment”.  But this could also have both benefits and drawbacks:

“Such an approach has the benefit of not sacrificing genuine and fully reasoned judgments at the altar of simplicity, which may include not only complicated reasons but also discussion of facts which could be harmful or otherwise detrimental for the subject child to learn of. Yet it is not a wholly satisfactory approach either. Drafting a supplementary judgment or script adds to the already heavily burdened workload born by the judiciary, guardians and advocates. Further, substantive input from representatives would put the judiciary at risk of a rebuke for adopting the drafting of a party.”

While the method of delivery clearly needs to be dependent on the type of case, there is ultimately praise for judges who challenge convention by drafting judgments designed to explain outcomes to children, not just their lawyers.

Source: Family Law Week

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