Children can be separately represented in the family court. This occurs automatically in care proceedings but only rarely in private law proceedings. Separate representation means that the child has their own solicitor and is not the same as the child giving evidence themselves. Where a child is separately represented, they have the opportunity to put their views before the court through their solicitor and this allows them to keep their distance from the more damaging consequences of giving evidence.
Obviously, however the court hears evidence of the child’s wishes and feelings; whether because the child gives evidence themselves, is separately represented, or is interviewed by a CAFCASS officer or social worker who writes a report for the court, the child will discover that his/her views will become known to the court and parents, with all the harmful consequences to their relationships that can arise from that. If a child realises these risks it will usually deter them from getting involved or, at least, deter the adults from getting the children involved.
How are children’s views represented in care proceedings?
All children and young people who are subject to care proceedings brought by local authorities are automatically represented separately, even newborn babies. This is because the children may have interests which are not aligned to those of the parents, because of the concerns about the parenting they’ve received or are likely to receive. They are automatically parties to the care order application and are on an equal footing with their parents in terms of being represented and having free legal aid. The court appoints a CAFCASS guardian to the child who then appoints a solicitor. The guardian is responsible for assessing the child’s interests and instructing the solicitor. The solicitor appointed to represent a child should be accredited as a children panel solicitor.
How are children’s views represented in private law?
Separate representation can occur in private law cases, where, for example, a child arrangement order is being applied for. Usually the parents are the only parties to the case; one is the applicant and the other the respondent. Separate representation of children is rare though it can happen in unusual cases such as where parental alienation is alleged. Click here to see our guide to proving child manipulation.
Separate representation of the child by their own solicitor or barrister is to help the judge understand the child’s wishes & feelings and so it’s only necessary if there’s serious doubt about what the child wants. Of course, it’s important to consider the wishes and feelings of the child in the light of his/her age and level of understanding. Young children are presumed not to know or understand the importance of decisions affecting them, so very little judicial weight will be given to their preferences. However as children get older the courts will begin to pay more attention to their views, but it will still depend on the actual child concerned and their level of understanding. Some younger children are sufficiently mature to understand the issues in question, whereas some older children may not be mature enough.
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