Crucial need to review law to ensure children’s voices are better heard, experts urge

There is a “crucial need” to review the law to ensure children’s voices are better heard during family separation, experts have said.

Researchers have warned too many young people are left “muted”, with no direct involvement in the family court process.

The Law Commission should also investigate if England needs a children’s rights framework both to protect their welfare and ensure their views are considered during family justice proceedings.

The analysis, by Anne Barlow, from the University of Exeter, and Jan Ewing, from the University of Cambridge, says this review is even more urgent thanks to developments in family law in recent years designed to encourage out-of-court dispute resolution and legal aid changes.

Professor Barlow and Dr Ewing say this review should investigate if legislation should be amended to specify the duty to take account of children’s wishes and feelings in decisions affecting them where possible, both in and out of court.

They also say now may be an appropriate time to consult on whether The United Nations Convention on the Rights of the Child (UNCRC) should be formally adopted into the law of England and Wales, to ensure that the position of children following parental separation is safeguarded and their voice in is properly heard.

Arrangements for children when parents live apart are governed by the Children Act 1989 (CA 1989), which is still widely regarded as a successful piece of legislation. However, over 30 years on, it remains focused on children’s welfare rather than any explicit acknowledgement of children’s rights. It also only governs cases which reach court.

Professor Barlow said: “This is a critical moment for the Law Commission to examine whether the 1989 Act adequately protects the rights and meaningfully facilitates the voice of the child to ensure arrangements made are in their best interests.

“Such a review would be particularly timely given recent family law developments, which have resulted in strong encouragement of non-court dispute resolution, legal aid changes, the loss of any requirement for the court to consider the proposed arrangements for children on divorce; developments internationally to promote children’s rights through the UNCRC and the move in other UK nations to adopt the UNCRC principles in domestic legislation, potentially leaving children in England with fewer rights than their counterparts in Wales and Scotland.”

Since 2014, legislative changes to the way child arrangements are made on divorce or separation mean that these are no longer automatically scrutinised by the courts either under the CA 1989 or as part of the parental divorce or separation process. Changes have left separating parents to make or mediate arrangements between themselves, but without any statutory duty to consult or inform their children about these or indeed check that arrangements are in their best interests, potentially in breach of the provisions of Articles 3 and 12 UNCRC.

Children are typically excluded from any consultation or role in the decision-making despite their rights under Article 12 UNCRC to express a view on matters affecting their lives. Child-inclusive mediation is available only when parents both agree, and provided the mediator is willing and accredited.

Dr Ewing said: “We no longer know how well the current law governing child arrangements in private family law cases sits with our obligations under the UNCRC. There has been little focus on what the UNCRC means or should mean for children whose parents separate, even though separation is estimated to affect around 280,000 children each year.”

The study says the situation is complicated by the fact there is no one Minister or government department that takes responsibility for children when parents separate. This results in children’s rights falling between different stools, with no department having the control or incentive to grasp the matter and make changes.

The analysis suggests that the CA 1989 could be amended so children’s right to express their wishes and feelings as part of the welfare considerations applies when parents are attempting direct settlement, mediation or other non-court dispute resolution processes as well as within the court process. Additionally, the definition of parental responsibility could be amended to include a duty to consult children on important decisions and a responsibility to take those views seriously, in the context of parental separation. Further, a presumption of child participation might signal a commitment to upholding children’s rights.

Dr Ewing said: “This is a most opportune and appropriate moment to review the position of children’s rights in the context of the UNCRC in England. Warning bells have already rung about the plight of children when parents separate, both in court and in non-court dispute resolution processes. Given moves elsewhere to incorporate children’s rights more fully into domestic law, recognising them as subjects rather than objects of family law, we suggest that this is also a critical time to consult on whether the UNCRC should be formally adopted into the law of England and Wales.”