The legal system of England and Wales has been in the news recently, with a spotlight shone on the children caught up in bitter disputes between their parents, or between their parents and the local authority.

Family law solicitors often find that cases involving contact with children can be the most difficult. In many cases, two parents who both love their children very much battle from increasingly entrenched positions, requiring the court to make a decision that will have a fundamental impact on the child’s life. This is especially true where changed circumstances following the breakdown of the relationship means that the geographical distance between the parents will make it impossible for the child to see as much as both parents as might be desired.

Increasingly, the importance of listening to the voice of the children caught up in disputes has been recognised. Even from a young age, children will be aware of the important decisions being made about their lives by a person they have never met (the judge) in a place they have never seen (the court) through in a process which they know nothing about and feel that they have very little control over.

The Family Justice Children and Young People’s Board

The Family Justice Children and Young People’s Board is an organisation where young people who were, or are, children caught up in family cases have the opportunity to express their views. They have expressed the importance of ensuring that children feel they are involved in the process and can be heard by the decision maker if they want to be. This helps the child understand what is happening, and feel that they have the chance to speak up about decisions which, ultimately, impacts them most of all.

Indeed, many cases have recently been reported where judges have taken the time to include children in the decisions being made about them. Lord Justice Jackson presided over perhaps the most widely reported case, regarding a young girl who wanted her body cryogenically frozen. The young girl involved in this case was in the final stages of terminal cancer, and too ill to attend court. So the judge visited her in the hospital. His touching decision is well worth a read but focuses on the fact that, from speaking to the young lady involved, he was persuaded that his decision would offer her an invaluable level of comfort in her final days.

The same judge has reportedly written a letter addressed to a teenager, in which he explained why he had taken a decision which was different from that which the teenager had asked for. Sheriff Aisha Anwar in Glasgow has written a similar letter, explaining to children in an entrenched contact dispute how she had made her decision. In doing so, she followed the recommendation of a clinical psychologist involved in the hearings, who stressed the importance of the children receiving the decision directly from a court, rather than through the lens of either of their feuding parents. It seems unlikely that these are isolated cases where such an approach would help the children, and rather that this may become an approach more universally adopted.

Taking all these circumstances together, it is very clear that the courts are increasingly aware of the enormous impact their decisions can have on the lives of children, and how difficult it can be for children to have decisions about their lives taken in a way that leaves them feeling powerless and uninvolved. The court’s sensitivity and awareness of this issue is to be welcomed. In addition, family lawyers and parents involved in contentious litigation should think very carefully about how this litigation impacts on the child, and should ensure that the voice of the child is heard by the court in the way most suitable to that individual child.