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• Overview
• Children’s Voices In The Family
• Children’s Voices In The Court System

4. Children’s views

OVERVIEW

121 WE BELIEVE CHILDREN’S VIEWS should be heard both within families and within the judicial system. Ensuring children’s perspectives inform decision making assists all those involved: child, parents, and any professionals helping to resolve a dispute. As Neale and Smart state:

Recognising children as people in their own right and respecting their views, of course, poses difficulties for a system of family law and welfare practice that operates on the basis of pre-conceived ideas about what is best for children. ... The current legal climate, in which the definition of the problem and the preferred outcome have already been decided upon, leaves little room for alternative ways of thinking about the issues. This is hardly conducive to listening to the child’s interpretation of the problem with an open mind, or reaching an impartial decision about possible solutions. Not only is this a disservice to children, but arguably it also places unnecessary and difficult burdens of responsibility on professionals to interpret, re-interpret or override children’s views.[17]

122 Our preliminary paper drew attention to the way the Court process hears and represents children’s views. The responses we received reflected a range of opinion. Not everyone would endorse the above exhortation to listen to children’s views with an open mind. One said:

Children should not be given a role of this magnitude at all – parents are there to decide what is best for them. The only appropriate way to involve children is statistically in the abstract. It could be assumed that children want to live with both their parents and perhaps their wishes should take precedence over those of their parents.[18]

123 We believe, however, that children have valuable perspectives on family life; their views should not be discounted because they are “less than adult”, nor distorted by adult preconceptions about what “ought” to happen. There should be a way for decision makers to hear children’s voices, either through a judge, or perhaps more importantly, through parents.

124 There is unlikely ever to be consensus on balancing competing views as to how much say children should have in their family or in the Family Court system, but we endorse the views of the University of Otago’s Children’s Issues Centre (CIC):

Encouraging children’s participation in family and legal processes does not mean that the child’s view would be determinative or that the child would be given responsibility for the decision. Children generally have some awareness of the problems facing their family and listening to what they have to say can allow any distress, anxiety or uncertainty to be properly voiced and sensitively dealt with in a reciprocal two-way process. Participation by children helps them to accept the decision made about them and facilitates their growth toward mature and responsible adulthood. However, it must be acknowledged that some children, although old or mature enough to understand and take part, may not wish to do so. Other children may be too young to participate formally, but their age should not necessarily prohibit communication with them.[19]

CHILDREN’S VOICES IN THE FAMILY

125 Although it is important that those in the Court system hear what children have to say, it is perhaps even more important that parents hear what children have to say within the family.

126 United Kingdom research shows that most children want to know more about what is happening when their parents separate.[20] Many separating parents do not tell their children what is going on, because of their own emotional turmoil, or because they want to protect their children from emotional harm. This reluctance to give children information and appreciate their perspective on a separation that affects them is concerning. Parental separation is probably one of the most momentous events in a child’s life, and should be acknowledged as such.

127 Children understand more than many parents give them credit for, and CIC research shows they are aware of what is going on in their family, and want to know more about what will happen to them.[21]

128 The CIC research shows that, like English children, New Zealand children are rarely consulted about custody and access arrangements, which are decided either within the family or by the Court. Of the children CIC interviewed, only 19 per cent said their parents consulted them about initial, post-separation living arrangements.[22] This gradually changes, and after a while children usually come to play a bigger role in deciding about custody and access.

129 Many children surveyed had clear messages for separating parents:

Parents, listen to your kids. Just make sure that you’re listening to them and not having any preconceptions about what you think they want and make sure you listen to them and that you tell them what’s going on.

Make sure they know what’s going on or else it gets really confusing for a kid. And so if they know what’s going on then they can feel like they’ve at least got some control over the situation. (Kayla, aged 16)[23]

130 When we speak here of children’s views we are not necessarily referring to an expressed preference for either parent. Neither does taking children and young people’s views into account mean that parents and professionals should shift onto them decision-making responsibility. The CIC concluded:

We believe that our research adds weight to the view that children are indeed competent social actors who reflect and devise their own ideas and strategies for coping with family life after their parents separate. Their views are worth listening to, and even quite young children have sensible views to offer. ... We question the assumption that children are incompetent or will be overburdened by being consulted. Most children want to be consulted, which we reiterate does not mean that they want to take all of the responsibility for decisions.[24]

131 The CIC recommended everyone involved in the Court process encourage parents to share information with their children, and demonstrate ways of doing so:

[P]roviding the child with information to assist the child to form their views on matters which affect them; giving the child the support they require to express their view; understanding and respecting the child’s perspective; and explaining the decision the official was responsible for. Children are far more likely to understand and accept a decision if the person who made it explains their reasons and accepts responsibility for it.

132 The CIC suggests adopting the Scottish concept of the F9 form; this is automatically sent to all children over the age of 12 (with discretion to send to younger ones, if desirable) whose parents are separating. It tells them about the proceedings and asks them to tell the Court how they feel.

133 Other chapters of this report discuss services that might encourage families to share information and listen to one another with respect and compassion. In summary, we recommend:

• Children over the age of seven should be able to attend information programmes to help them express how they feel to their parents and others involved in helping the family to resolve their difficulties.

• Children should be entitled to see counsellors with expertise in working with children, to help them deal with family transitions and difficulties. Counselling might help children tell their parents directly how they feel; or, the child might want the counsellor to relay their view of the situation to parents. We do not believe the counsellor’s responsibilities should include reporting to others in the Court process; this would compromise confidentiality, and blur the lines between conciliation services and Court processes.

• Some children might already have contact with a social worker who could pass information from the children to the parents, if children did not want to talk to parents directly.

• Children should, if they wish, be able to attend part of the mediation to ensure their views are heard.

134 Children can express their point of view in several ways, and the system should be sensitive and flexible enough to encourage and support it. Some children might want to come to a stage of the mediation process to tell their parents exactly how they see things. Others might prefer to write a story or draw pictures about their point of view and what they want. Children should have input on what is important to them; for example, a key concern might be ensuring they still have access to friends, pets, or particular activities.

135 Others might not want direct input, but would prefer to be left out of decision making. It is vital to ensure that the changes we are proposing respect children’s dignity, and allow them to get the support services they need. On the other hand, we must avoid the trap of “rights talk”, and the risk of forcing children into participating when they would rather not.

CHILDREN’S VOICES IN THE COURT SYSTEM

136 Children’s participation in the Court process is currently tightly circumscribed. In matters relating to the Children, Young Persons, and Their Families Act 1989 (CYPF Act), where the child is declared in need of care and protection, counsel for the child will be appointed. Counsel for the child will also be appointed in matters relating to the Guardianship Act 1968, usually after the judge has convened a mediation conference. These appointments may occur some time after proceedings have begun and several key events (counselling, mediation conference, family group conference) have already taken place.

137 Aside from appointment of counsel for the child,[25] the only other person in the Family Court process who has significant contact with children is the Court-appointed specialist report writer, or, in the case of CYPF Act matters, possibly a social worker. The psychologist often does not have contact with the child until a case is scheduled for a hearing.

Judges

138 The CYPF Act obliges judges to listen to children to ensure the children understand what is happening, and to inform them of reasons for the eventual decision.[26] The Guardianship Act 1968 is older legislation and thus puts less emphasis on finding out what children think. Some judges make an effort to listen to children, and might hear a child in chambers. Judges are increasingly concerned with ensuring children understand decisions and their effects, and with defusing any sense children might have that they themselves are responsible for what has happened. Explanation from a judge can be particularly helpful in contested cases with potential for children to be caught in the parental crossfire.

139 Some judges speak directly with children; others may direct counsel for the child or a specialist report writer to explain the basis of the decision and its effects.[27] Another means of encouraging judges to seek children’s views would be to have counsel for the child ask the child if he or she wants to tell the judge any specific information or desires, or simply to meet the judge in person. We hope judges would accommodate such a meeting.

140 We have considered carefully remedies likely to address perceived problems of children’s Family Court participation. Other chapters, as well as the above, recommend ways of encouraging children to have their say; chapters 5 and 6 discuss ways of encouraging parents to consider their children’s views and interests; chapter 11 suggests how children’s views and legal interests might be represented in court.