Uncovering private family law: how often do we hear the voice of the child?
Authors & Organisations
Dr Claire Hargreaves: Lancaster University Dr Linda Cusworth: Lancaster University Dr Bachar Alrouh: Lancaster University Professor Karen Broadhurst: Lancaster University Dr Lucy J Griffiths: Swansea University Dr Laura Cowley: Swansea University Dr Steffi Doebler: Lancaster University
Authors
Dr Claire Hargreaves Dr Linda Cusworth Dr Bachar Alrouh Professor Karen Broadhurst Dr Lucy J Griffiths Dr Laura Cowley Dr Steffi Doebler
Organisations
Lancaster University Lancaster University Lancaster University Lancaster University Swansea University Swansea University Lancaster University
A child’s right to participate and have their voice heard in private law proceedings is acknowledged in legislation and guidance – as a way of both informing welfare-based decisions and upholding their rights. This report explores the extent to which children across England and Wales participate (through the presence of court-ordered reports) and how the level of participation varies by child and case characteristics.
Foreword
It is a common refrain in private law proceedings that the proceedings aren’t about the rights of parents but about the rights of the child. There is a clear implication here – that when caught up in their own emotions, parents might not properly listen to their children and promote their welfare.
This report starts from the same understanding – that children have rights that need promoting and protecting – but it asks a different question. How well is the family justice system following its own instructions and promoting children‘s right to be at the centre of decision making about their lives?
This report reiterates previous findings that in many cases children’s voices appear to be entirely unheard in private law proceedings. Importantly, it digs a little deeper and begins to ask questions about whether some children are heard more than others. Perhaps the most surprising finding is how little impact age has on whether children are provided with opportunities to be heard within proceedings. When we published our first report on the data relating to child participation in 2022, many of those we spoke to felt it was likely that the low levels of participation happening as an average masked significant variation – with very young children not being offered that opportunity because it would be developmentally inappropriate but older children being much more routinely heard. The data in this report does not bear that out. It poses searching questions about whether our current systems are fit for purpose – whether they are really responding to the evidence which highlights how important having a voice is for children and at a fundamental level whether they are enabling compliance with domestic and international law.
Lisa Harker, Director, Nuffield Family Justice Observatory
Decisions made within private law children’s proceedings can have a very significant and long-lasting impact on the lives of children and their families. They can include who children live with and spend time with, as well as more specific questions such as what name they are known by or whether they are brought up in a particular religion. Most private law cases are between separated parents unable to agree on arrangements for a child’s upbringing, with an application made to the court for an order under the Children Act 1989.
A child’s right to participate in decision making about them and the importance of considering their wishes and feelings when making decisions are enshrined in international and domestic law. Research also highlights the importance of children being involved in decision making and the potential benefits of such involvement (see Roe 2021).
This report by the Family Justice Data Partnership – a collaboration between Lancaster University and Swansea University – seeks to deepen our understanding of whether and when children participate in proceedings. The study used Cafcass and Cafcass Cymru, 1anonymised, population-level administrative data on all children involved in a private family law children case that included a section 8 application and started between 1 January and 31 December 2019 – 62,732 children in England and 4,293 children in Wales. 2 It explores:
children’s participation in private law cases in England and Wales over a three-year period from their case starting
whether and how levels of participation vary by the characteristics of the child, including age, gender, area-level deprivation, and the number of children involved in the child’s case
whether and how levels of participation vary by court circuit and Designated Family Judge (DFJ) area
the timing of children’s participation in proceedings.
1 Cafcass and Cafcass Cymru are the Children and Family Court Advisory and Support Service in England and Wales respectively, and promote the safety and welfare of children involved in the family courts. 2 Applications under section 8 of the Children Act 1989 include those for a child arrangements order, specific issue order and prohibited steps order.
What does the law say about child participation?
According to section 1 of the Children Act 1989, the child’s welfare must be the court’s paramount consideration when determining any question with respect to the upbringing of a child. The court is directed to have regard to the ascertainable wishes and feelings of the child concerned (considered in the light of their age and understanding).
Rights enshrined by Article 12 of the United Nations Convention on the Rights of the Child 3 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.
The Child Arrangements Programme (CAP) provides the practice framework for private law children’s cases and is set out in Practice Direction 12B. The focus of CAP is on early settlement and streamlined proceedings. It directly prevents Cafcass or Cafcass Cymru from meeting with children before the first hearing. As a result, if settlement is reached at first hearing there is no mechanism available under CAP for children to have their wishes and feelings directly heard.4
3 Article 12 states that, ‘Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child; and for this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.’ 4 There is currently no data published on the proportion of private law cases that resolve at the first hearing, and this information is not available in the Cafcass or Cafcass Cymru datasets used in this analysis. The focus of this report is on all children involved in a private law application.
Markers of child participation
Where cases proceed beyond a first hearing, there are a number of investigations and reports which can be directed by the courts. These usually involve direct consultation or engagement with children, although this will be experienced differently by infants and young children than by teenagers. In this study we have considered four key routes through which children may participate in proceedings, on which data is available.
Cafcass section 7 welfare report/Cafcass Cymru Child Impact Analysis – In England, the court may order Cafcass to prepare a section 7 report (or addendum). In Wales this is called a Child Impact Analysis report. These investigate and report on matters relating to the welfare of the child, which would include a family court adviser (FCA) meeting with the child, where appropriate, according to their age, maturity and preference.
Local authority section 7 welfare report – the court may order the local authority to undertake an investigation of a child’s circumstances and prepare a section 7 report (as above).
Local authority section 37 report – the court may order the local authority to consider whether to apply for a care or supervision order, investigating the welfare of the child and whether or not they are suffering or at risk of suffering significant harm.
Rule 16.4 (guardian appointment) – under rule 16.2 of the Family Procedure Rules 2010, children may be made a party to proceedings by the court, with a children’s guardian appointed under rule 16.4 to independently assess the child’s wishes and feelings, and welfare needs. The children’s guardian is usually from Cafcass/Cafcass Cymru, but in England a caseworker from the National Youth Advocacy Service (NYAS) can provide representation for children and young people in certain circumstances.
Using these four markers, we report the proportion of all children involved in a private law application who may have participated in proceedings. These reports were not principally designed to facilitate participation, but they are seen as the key system tools for enabling direct engagement with children. There are other ways for children to participate, for example they might write to or meet with the judge, give evidence, or engage with experts such as psychologists or independent social workers, or commissioned services. This study was not able to explore these further types of participation as details are not routinely collected in the administrative data, and thus presents an incomplete picture of child involvement. While we do not have the data to explore these routes, practitioner feedback suggests they are much less frequently used and usually take place within the context of cases where one of the other markers of participation is present.
Key Findings
Levels of participation
Around half of the children – 53.9% in England and 47.5% in Wales – had at least one marker of participation within three years of the case start date. This means that for almost half of the 67,000 children in England and Wales who were involved in a private law case starting in 2019, there is no indication that they participated in their case.
The most common marker of participation in England was a Cafcass section 7 report, for 38% of children. Similarly, in Wales, 36% of children were involved in a case where a Cafcass Cymru Child Impact Analysis report was ordered.
Only 5.2% of children in England and 7.2% of children in Wales had more than one marker of child participation.
Variation in level of participation by characteristics of the child
Age: There was a statistically significant difference in the proportion of children with at least one marker of participation by age, but this variation is surprisingly small. In England, two-fifths of children aged 10 to 13 and a greater proportion of older teenagers had no indication that they had formally participated in proceedings. In Wales, there was greater fluctuation, but a similar pattern is seen.
Gender: There was no difference in the level of participation by gender.
Area-level deprivation: In England there was a statistically significant difference in participation rates according to the deprivation level of the area the children lived in. A higher proportion of children living in areas in the most deprived quintile had at least one participation marker, compared to those living in the least deprived quintile (56.1% compared to 50.6%). There were no statistically significant differences in Wales.
Ethnicity: The data available for this time period did not enable analysis by ethnicity. In England, while data on ethnicity is collected by Cafcass, the amount of missing data (16.7% for children who did not have a marker of participation and 7.7% for those who did have a marker of participation) prevented reliable analysis. In Wales, Cafcass Cymru did not routinely collect ethnicity data during the study time period. Changes in recording practice will improve ethnicity data for future analysis, but the absence of information on any variation by ethnicity limits our current understanding of how children’s characteristics relate to their opportunities to participate.
Number of children in the case: The proportion of children who had markers of participation varied significantly depending on the number of children in the child’s case. The level of participation was lowest for those who were the only child in their case (49.6% in England, 43.5% in Wales), compared to those with one sibling (54.6% in England, 48.0% in Wales), and children with two or more siblings (60.0% in England and 54.5% in Wales).
Region: Participation across the six court circuits in England varied quite considerably, with the proportion of children with one or more markers of participation varying between 40.1% and 59.8%. There was also variation between the DFJ areas in each court circuit, from 35.5% to 63.6%. In Wales, the difference between areas was much smaller, with percentages of children with at least one participation marker ranging from 45.0% to 49.5% across the three DFJ areas.
Timing of participation
For children whose cases started in 2019, markers of participation were most commonly ordered within the first three months of the case start date. This was the case for around a third of children in England (35.5%) and Wales (33.5%).
Taking case duration into account, a greater proportion of children had a marker that they may have been directly consulted about their wishes and feelings the longer cases lasted. Two-fifths of children in a case still open to Cafcass in England (41.0%) or Cafcass Cymru in Wales (39.3%) three months after the start of proceedings had a marker of participation ordered. By 12 months, this had increased to almost four-fifths (79.8%) of children in a case still open to Cafcass in England and three-quarters (73.7%) of children in Wales.
Reflections
Within private law proceedings, the family courts make hugely important and potentially life-changing decisions about a child’s life. A child’s right to participate in those proceedings, where decisions are made about them, is enshrined in both domestic and international law.
However, this study found that around half of children, including older children and teenagers, did not have any indicators that they had been consulted directly during the course of proceedings. Although the study was not able to capture all possible participation, this suggests that strikingly few children have a voice in proceedings.
This study has highlighted that the use of welfare reports and the appointment of a children’s guardian are the primary vehicles for children’s participation in proceedings. However, dependence on welfare reports to fulfil this function is problematic. Under the current framework in England and Wales, they are not ordered in all cases and cannot be ordered before a first hearing. Thus there is no universal mechanism for children to express their wishes and feelings, despite the hugely consequential nature of these cases.
The relatively low level of increased participation by age may simply reflect that the type of safeguarding concerns that trigger the ordering of welfare reports is not variable by age. This suggests that a child’s right to participate, and the weight and importance of their wishes and feelings – in light of their age and understanding – is not being fully reflected in the current system, which does not offer routine involvement for older children, outside of these primary routes.
The proportion of children who participated in proceedings varied by court area. There is a need to further investigate the drivers of this variation, which might include area-level deprivation, local policy, practice and culture. However, the findings do raise the concern that the ability of children to participate in proceedings might be based on systemic factors rather than decision making purely focused on their rights and welfare needs.
The challenge to the family justice system as a whole is to reflect on the changes needed – in policy, practice and resources – to ensure mechanisms are in place that give children the opportunity to have their voices heard, both to ensure children’s rights are upheld and to support decision making that is in the best interests of the children.
The pilot Pathfinder Courts, introduced in North Wales and Dorset in early 2022, 5 uses a mechanism through which all children can have an opportunity for their wishes and feelings to be heard from the start, not just in those cases where welfare concerns were subsequently identified. Expansion of this type of model would enhance the voice of the child, responding to many of the concerns raised by the findings in this report.
5 The data used in this study predates the introduction of the Pathfinder model.
Family Justice Data Partnership
