Children should be given more of a voice in court.

Last year over 100,000 children were part of family law cases in court, either between parents or social services, the outcomes almost always impact the child’s life.

Family court decisions can have a significant and lasting effect on children. A child should therefore have an appropriate opportunity to express their wishes, feelings and experiences.

In England and Wales, the court must consider a child's ascertainable wishes and feelings in the light of their age and understanding. However, the child's views are one part of the wider assessment of their welfare.

The child is not expected to choose between parents or take responsibility for the court's decision.

The Welfare of the Child

When determining questions about a child's upbringing, the child's welfare is the court's paramount consideration.

The Children Act 1989 requires the court to consider matters including:

• the child’s ascertainable wishes and feelings;


• the child's physical, emotional and educational needs;


• the likely effect of any change in circumstances;


• the child's age, background and relevant characteristics;


• any harm suffered or risk of harm;


• the ability of each parent or carer to meet the child's needs; and


• the orders available to the court.

A child's views may carry considerable weight, particularly where the child is older and demonstrates a clear understanding of the issues. However, the court is not required to make the order the child requests if it considers that another outcome is necessary for the child's welfare.

What Is Cafcass?

Cafcass is the Children and Family Court Advisory and Support Service. It operates in England and independently advises the family courts on children's welfare.

Cafcass is separate from:

• the courts;


• local authority children’s services;


• schools;


• NHS services; and


• the parents involved in the proceedings.

Its role differs according to the type of case and the directions made by the court.

Cafcass in Private Family Proceedings

Private law proceedings commonly involve disagreements between parents or relatives about:

• where a child should live;


• how much time the child should spend with each parent;


• schooling;


• medical treatment;


• relocation;


• taking a child abroad; or


• another important parenting decision.

A Cafcass Family Court Adviser may:

• carry out safeguarding checks;


• speak with the parents;


• speak with the child where appropriate;


• consider allegations of domestic abuse or harm;


• assess the child's needs, wishes and feelings;


• prepare a report for the court; and


• recommend arrangements considered to be in the child's best interests.

The Cafcass recommendation is important evidence, but the final decision belongs to the Judge or magistrates.

Cafcass in Care Proceedings

Where a local authority applies for a care or supervision order, the court will normally appoint a Cafcass Children's Guardian.

The Children's Guardian is a qualified social worker whose role is to:

• represent the child’s interests;


• investigate the child’s circumstances;


• ascertain and report the child's wishes and feelings;


• analyse the local authority’s plans;


• instruct a solicitor for the child; and


• make an independent recommendation to the court.

The Children's Guardian does not simply repeat what the child says. The guardian must provide an independent professional assessment of what outcome best protects the child's welfare.

How Are a Child's Views Obtained?

A child's views may be communicated to the court through:

• a meeting with a Cafcass adviser;


• a Children’s Guardian;


• a local authority social worker;


• a section 7 welfare report;


• a letter, drawing or wishes-and-feelings document;


• the child's solicitor where the child is a party;


• a meeting with the judge; or


• in unusual cases, evidence given directly by the child.

The method should be appropriate for the child's age, understanding, communication needs and emotional welfare.

Very young children may communicate through behaviour, play or observations rather than through a clear verbal preference.

Will Cafcass Always Meet the Child?

Cafcass does not necessarily meet every child involved in family proceedings.

A direct meeting is more likely where:

• the court has requested a detailed welfare report;


• the child is old enough to express meaningful views;


• the parents disagree about the child's wishes;


• there are safeguarding concerns;


• the child is resisting arrangements with a parent;


• the case may significantly change the child's life; or


• the child has asked to be heard.

Where a child is not seen, the court and Cafcass should still consider whether the child's wishes and feelings can be established reliably in another way.

Can a Child Meet the Judge?

A child may ask to meet the Judge, or the court may consider that a meeting would help the child feel more involved and understand the process.

A meeting is not automatic. The Judge will consider:

• the child’s wishes;


• the child’s age and understanding;


• the purpose of the meeting;


• the child’s emotional welfare;


• whether the meeting may create pressure or confusion;


• the views of the Children's Guardian or Cafcass adviser; and


• whether another method would be more appropriate.

A child should not be forced to meet the Judge.

What Happens During a Meeting With the Judge?

The purpose of a judicial meeting is normally to help the child:

• feel that they have been heard;


• understand the judge’s role;


• know that their views have reached the court;


• ask appropriate questions about the process; and


• feel more connected with decisions affecting their life.

The meeting is not normally used to collect disputed evidence or ask the child to decide the case.

The Judge should not promise a particular outcome. The child should understand that the Judge must consider all the evidence and decide what is in the child's best interests.

A Cafcass officer, guardian or another suitable professional may attend. The arrangements and any record of the meeting are matters for the court.

Can a Child Give Evidence?

Children do not usually give oral evidence in family proceedings, but there is no absolute rule preventing them from doing so.

The court must balance:

• the importance of the child’s evidence;


• whether the evidence can be obtained another way;


• the child’s age and maturity;


• the risk of emotional harm;


• the effect of questioning;


• the fairness of the proceedings; and


• the safeguards that can be put in place.

Possible safeguards include:

• giving evidence by video link;


• questions being agreed in advance;


• using an intermediary;


• limiting the length and manner of questioning;


• removing formal court clothing;


• using a separate waiting area; and


• recording an earlier interview where legally appropriate.

Direct evidence is generally reserved for cases where it is necessary and can be managed without causing disproportionate harm.

Can a Child Have Their Own Solicitor?

In public law care proceedings, the child is normally a party and is represented through a Children's Guardian and solicitor.

In private law proceedings, a child is not ordinarily a separate party. The court may join the child as a party where the circumstances are exceptional and separate representation is required to protect the child's interests.

An older child with sufficient understanding may, in some circumstances, be able to instruct a solicitor directly.

This may be considered where:

• the child strongly disagrees with a guardian's position;


• the child has a separate case to present;


• the proceedings are unusually complex;


• the parents cannot adequately represent the child's interests;


• there are serious allegations or safeguarding issues; or


• the child seeks a different order.

How Much Weight Will the Court Give the Child's Views?

There is no fixed age at which a child's wishes become decisive.

The court may consider:

• the child’s age;


• their maturity and understanding;


• how consistently the view has been expressed;


• the reasons for the child’s view;


• whether the child has experienced pressure or influence;


• whether the child understands the consequences;


• the child’s emotional and developmental needs; and


• any immediate or longer-term risk of harm.

The views of a mature teenager may be highly influential because an order that ignores a strongly held and informed position may be difficult to implement. However, the court must still assess welfare and safety.

Pressure and Influence

Children can feel caught between parents and may worry that expressing a view will upset one of them.

Parents should not:

• tell a child what to say;


• rehearse answers;


• ask the child to choose between them;


• show the child court documents;


• question the child repeatedly after a Cafcass meeting;


• record conversations secretly without legal advice;


• criticise the other parent to the child; or


• promise that the court will follow the child's wishes.

The court must distinguish between a genuinely held view and one affected by fear, loyalty, pressure, manipulation or incomplete information.

This does not mean that a child's stated concerns should be dismissed. Any allegation of abuse, fear or harmful parenting must be properly investigated.

Children Affected by Domestic Abuse

Where domestic abuse is alleged, the court must consider the effect of the abuse on the child and on the parent caring for them.

A child may be harmed by:

• seeing or hearing abuse;


• living with controlling or coercive behaviour;


• being used to pass messages;


• being pressured about contact;


• fearing for a parent’s safety;


• being directly threatened or assaulted; or


• experiencing instability following separation.

The child's reluctance or refusal to spend time with a parent should be examined carefully and in context. The court should not assume either that the child's wishes are determinative or that they result from improper influence.

Explaining the Decision to the Child

Children should receive an age-appropriate explanation of:

• what the court decided;


• why the decision was made;


• how their wishes and feelings were considered;


• what will happen next; and


• who can answer further questions.

Depending on the case, the decision may be explained by:

• a parent or carer;


• the Cafcass adviser;


• the Children’s Guardian;


• the child’s solicitor;


• a social worker;


• the judge in a meeting; or


• a letter written by the Judge to the child.

Judicial guidance encourages judges to consider writing directly to children in suitable cases so that they can understand how their views were taken into account and why the final decision was reached.

What if the Child Disagrees With the Decision?

A child may feel disappointed, angry or unheard when the court makes an order different from the outcome they requested.

The fact that the child disagrees does not by itself make the order legally wrong.

Depending on the circumstances, the options may include:

• asking for the decision to be explained more clearly;


• seeking support from Cafcass, a guardian or social worker;


• obtaining advice about an appeal;


• applying to vary or discharge the order if circumstances change;


• requesting separate representation; or


• obtaining therapeutic or emotional support.

Appeals are subject to strict rules and are not simply a rehearing because someone disagrees with the outcome.

Children’s Rights

Article 12 of the United Nations Convention on the Rights of the Child recognises the right of a child capable of forming views to express those views freely in matters affecting them and to have those views given appropriate weight according to age and maturity.

This is a right to participate and be heard. It is not an automatic right to determine the outcome.

The Children Act 1989 reflects this principle by requiring courts to consider ascertainable wishes and feelings as part of the welfare assessment.

Concerns About a Cafcass Report

A parent, child or solicitor who believes that a Cafcass report is inaccurate should identify the disputed points clearly.

Possible steps include:

• providing corrections supported by evidence;


• filing a written response;


• asking questions of the adviser at a hearing;


• requesting further enquiries or an updated report;


• raising concerns through the Cafcass complaints process; and


• obtaining legal advice about procedural fairness.

A complaint about the adviser's service does not normally replace the need to challenge disputed evidence within the court proceedings.

Cafcass cannot overturn or change a court order.

How a Family Law Solicitor Can Help

A family solicitor may assist with:

• child arrangements proceedings;


• presenting a child's wishes and feelings appropriately;


• requests for a child to meet the Judge;


• applications for a child to become a party;


• separate representation for older children;


• challenging or responding to Cafcass reports;


• domestic abuse and safeguarding allegations;


• care and supervision proceedings;


• special guardianship;


• relocation disputes;


• appeals; and


• applications to vary or discharge an order.

Finding a Family Law Solicitor

Children should have a meaningful opportunity to express their wishes and feelings in family proceedings. The method used will depend on the child, the type of proceedings and the issues before the court.

A meeting with the Judge may be appropriate, but it is not automatic and is not normally a substitute for evidence. The court must make the final decision according to the child's welfare rather than placing that responsibility on the child.

Use the search facility at the top of this page to find a family law solicitor who can advise on child arrangements, Cafcass assessments, care proceedings or representation of a child.

This guide provides general information about family proceedings in England and Wales. It does not constitute legal advice and should not replace advice about an individual child or court case.