Guest post: The Voice of the Child by Natasha Phillips

Guest post: The Voice of the Child by Natasha PhillipsNatasha is a non-practicing Barrister, Editor In Chief and Founder of the Encyclopedia on Family and The Law. She blogs at Researching Reform.

For DCC, Natasha kindly agreed to write down some thoughts about the position of the child in the UK Family Court System.

The Voice of the Child – Are We Really Listening?

Our view of children as adults has throughout history been filled with contradictions, which have seen boys and girls crowned kings and queens and child soldiers sent out to battle, to fight for the greater good. But it has also rendered children to a status so lowly, that to this day, we barely acknowledge their perceptions of life and hurry to diminish the parts they play in their own lives and their family units, citing lack of maturity and understanding as the reason for deploying our protective instincts.

And there is no doubt that those protective instincts play an important role in keeping our children safe and ensuring they continue to grow and learn in the safe confines of the boundaries we make for them, but those instincts cannot be effective if we devalue our children’s perspectives as they make their way through their own childhoods. And in this way, we cannot protect the welfare of children experiencing their parents’ separation or divorce, if we continue to ignore the invaluable information they often try so hard to share with us.

In recent years, The Voice of the Child has become a catchphrase in the family justice system, as its importance is hotly debated by professionals and parents all over the country. It refers to the thoughts and feelings of children finding themselves in the family courts, often as a result of their parents’ divorces, and the vocalisation and acknowledgement of those thoughts and feelings.  Of late, it has also come to represent the importance of listening to those voices and using the information we are given efficiently, as the Voice of the Child Sub Committee shows, by its very existence and its working ethos: “To identify and develop proposals and projects that will enable the family justice system to listen more effectively to the views of children and young people. To ascertain the views of, and facilitate the engagement of, children and young people in the system through activities such as discussion groups”. We are beginning to understand the importance of listening to our children; but are we any good at it?

In 2010, The Voice of the Child Sub Committee published an interesting set of guidelines which although very limited in scope, were designed to allow children to speak with judges if they wished. The guidelines made it clear that children could not discuss their thoughts and feelings about the case itself but were confined to questions of process, which whilst not ideal, was a small step forward. These guidelines did however, if read a certain way, leave some room for flexibility, which would have allowed more child-friendly judges an opportunity to engage and listen, more closely. Yet the narrow guidelines were also an indication of caution: caution against moving too fast in unknown territory and possibly, safeguarding against a strong reaction from a judiciary not used to engaging with the voice of the child.

Local authorities too, have found themselves exposed to the voice of the child phenomenon and in August of this year, the Department for Education released updated guidelines on listening to and recording children’s wishes and feelings when going through proceedings in the family courts. So, it would seem from efforts like these, that our ability to really listen has not only been helped by government and judicial input, but has been facilitated. Yet, current research tells a different story.

The Children’s Director published research in 2011 which showed that children were very unhappy with the way they were being treated in court and wanted to be able to speak up in a process which although well meaning in that it wanted to prevent children from experiencing the trauma of giving evidence in court, was also muting them and preventing them from expressing their feelings and being taken seriously, which was in effect, equally traumatising. In that same year, the Office of the Children’s Commissioner at the request of the Voice of the Child Sub Committee researched and published a report on how children felt they were treated in the court system and once again, being listened to and taken seriously was a major concern for children. Many of the recommendations which came from this report also highlighted the need to give children’s views proper weight and once again, for those views to be recorded efficiently, ad verbatim this time.

Despite the progress that was being made on paper, research continued to highlight the flaws in how we listen to our children and the time it seems to be taking to implement new guidelines. Interestingly, the voice of the child has come into focus once again, this time through an unlikely source: the raging debate on shared parenting legislation and with it, the realisation that the government is not really listening to our children, at all. Shared parenting is defined as the breakdown of time each parent spends with their child after divorce or separation, with an equal share of time implied. With the government proposing to implement a clause in the Children Act 1989 which would amount to a presumption of shared parenting, the Paramountcy Principle in the Act, which tells us that the welfare of every child going through the family court process should be the paramount or main consideration when children go through the family courts, now sits directly at odds with this new proposal as it may well reduce the court’s ability to tailor contact. And this strange legal juxtaposition, which should be a point of review for legislators as it is tantamount to being incompatible with The Act, has been picked up on by think tanks like the Nuffield Foundation, as it publishes its latest report on children entitled “Taking a longer view of contact: perspectives of young adults who experienced parental separation”.

But what does this mean for the Voice of the Child? Essentially, the debate on shared parenting threatens to silence the very quiet whispers the family justice system has only just begun to hear and prevent children and families from benefitting from alternative arrangements. And whilst shared parenting legislation may seem like the way forward for parents who feel let down by the system, this is very much a grown up’s discussion, with children actively excluded by the stakeholders of this proposal, because by nature the proposal suggests that children cannot know what is right for them. This debate then, is the voice of the child’s polar opposite. It also fails to acknowledge one key element: that if legislation at this point could improve the system’s efficiency, the paramountcy principle would today be able to ensure that all able, loving parents could spend time with their children. Shared parenting legislation then, will not only silence the voices of children forever, but will make no difference to the outcomes of wronged families in court.

We already know too much legislation is as dangerous as legislation or policy that goes ignored, And that the real problems lie within the culture of the family justice system at large, but we have yet to understand that a shift in culture requires a concerted effort, not just from the top, but all the way down to the bottom of the system. The voice of the child will be poignant over Christmas. As we hear children singing carols in the street and watch them retell classics written by the likes of Charles Dickens, this year, will anyone really be listening to what they are saying?


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