There is a cultural shift afoot: more and more lawyers are standing up and commenting on children’s rights. The discussion is well under way on how our new changing Family Court Structure should be best tailored to cater for the Voice of the Child. This observation is by no means made cynically, but with a sigh of relief that finally we are taking steps to reduce “the invisibility of children”.
However, if children are to understand and fully express their wishes for their future, in the context of family law, then they must be given an understanding of the nature of the proceedings; the process itself; the decisions which need to be made along the way; the variety of possible outcomes, and the possible length of time involved. They must also, critically, be informed of the role they play within the process, understanding that whilst their voice will be heard, and considered, that voice will not necessarily determine the outcome. To have children think otherwise, is to place far too heavy a burden on their shoulders, and may also limit their participation.
Where do children currently get their information about Court from?
Is their experience of Family court derived from television soap operas or from chat shows like Jeremy Kyle? Is their information, or mis-information, obtained from friends, siblings or from the internet? If a young person “googles” Divorce, is the first thing they are likely to come across the celebrity divorce of Kim Kardashian and Kris Humphries? Do they imagine Family Courts to be like Criminal Courts with juries, and a prison van waiting outside for Mum or Dad? Might they be responsible for sending Mum or Dad to prison, if they say the wrong thing? The questions which children must naturally ponder in their heads are limitless, and like all things, when we don’t know or understand the details, the imagination knows no boundaries. This creates fear and anxiety, and must influence children’s outcomes. We are already aware from countless studies that children of separating families have roughly twice the probability of experiencing specific poor outcomes in the long term compared with those in intact families. Properly informing children not only adds depth and quality to their voice, when expressed, but it is likely to reduce fear and anxiety, and aid outcomes.
In a recent study conducted by the ISPCC, of almost 15,000 children between the ages of 10 to 19, “family life” was found to have the most impact on the emotional wellbeing of the children studied, standing at 44%, well before bullying, friends, school, or peer pressure. Whilst I couldn’t locate the statistics for Childline in Ireland, in the UK “family relationships”, including parental separation and divorce, was Number 1 of the Top 10 Reasons children contacted Childline UK in the year (2011/2012). (It was also the secondary reason, backing up numbers 2, through to 10, which ranged from self-harm to suicidal ideation.) This presented an 18% increase on the figures from the year before, and is of such a high volume that the NSPCC has allocated parental separation its own category for statistical purposes going forward.
In considering the Voice of the Child we ask many questions:
- Is the voice of the Child already sufficiently articulated in our Family Law Courts?
- If, not, how is it best articulated?
- Does the Court listen to this voice with sufficient care?
- Do we, as practitioners, listen to this voice with sufficient care?
- Are we able to look behind what is said, to what is actually meant? This is not always the same thing. Therefore how do we delve into, and behind, what the child is saying to gather its real meaning?
- How do we balance the child’s wishes against the child’s best interest?
We should also ask not only, how can WE best understand the child, but: How do we ensure that the child understands US?
How can we ensure that the child understands:
- the Court,
- the function of the Court
- the process
- the likely range of outcomes
- the child’s role
Even when we have a new system in place, we should continue to ask such questions to make sure that we continually, and repeatedly, monitor the outcomes for children within the court structure.
Extract from a paper presented to The Family lawyers Association of Ireland, Annual Conference and AGM, 6 July 2013.
If you need advice or support on any of the issues raised above, please call Alan Finnerty on 01 637 6200. Or you can email him at email@example.com
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