How Judges deal with children in family law cases

Part 1, Section 1 of the Children Act 1989 states that: (1) when a court determines any question with respect to a) the upbringing of a child; or b) the administration of a child’s property or the application of any income arising from it, the child’s welfare will be the court’s paramount consideration. This welfare principle is at the very heart of all family cases where children are involved.

It stands to reason then that Judges should be minded to direct their judgements to a certain degree to the children involved in the case upon which they are deciding.

In the 2017 case of A Father v A Mother and Stepfather and A Young Person [2017] EWFC 48  Mr Justice Peter Jackson took the decision to give his judgement in the form of a letter to the child in question, which the judge read to his parents and gave to the child’s solicitor to give to him and to discuss with him.

The judgement in actual fact makes for easy reading and is very clear. No doubt the age of the child (14) was a factor but it is a refreshing read.

In an earlier case regarding international surrogacy Re X and Y [Foreign Surrogacy] [2008] EWHC (Fam) the Judge Mr Justice Hedley wrote a child-friendly judgement for the benefit of the two children who were the subject of the case. This part of the judgement began:

“I reserve my final comments for X and Y in the hope that, at the right time, your parents will show you the judgment of this court which now forms part of your personal history. I want you to know what guided me in making my decision. The law which I have had to apply is very old and was passed without any consideration of the circumstances into which you came into this world. So I thought very carefully about what was best for you and also the rights which the law protects.” 

Family Law by its very nature is something of a contradiction; in that its cases can involve quite hostile litigation, whilst having the welfare of the children of the family at the forefront. Family law solicitors are tasked with the difficult job of trying to hold up the principle of welfare whilst also preserving their individual client’s best interests.

Professor Kathryn Hollingsworth and Professor Helen Stalford of Newcastle University Law School have undertaken some very interesting research “Child-friendly Judgments – The value of writing judgments with children in mind”

The research, amongst other important findings, reveals that:

“A child-friendly judgment respects the individual child at the heart of the proceedings. It can help them better to accept the decision; increase the legitimacy of the law and legal proceedings in their eyes (enhancing their sense of belonging and citizenship); and provide a tool for judges to communicate wider messages (for example, what is appropriate adult-behaviour, that the child is loved and wanted, and that they should be heard and listened to).”

Notwithstanding the recognition of children’s rights as pointed out in the research, a child-friendly judgement strongly upholds the Welfare principle in Part 1 Section 1 of the Children Act 1989.

If you are concerned about the welfare of your child(ren) and require advice on issues regarding Children law, please do not hesitate to contact Andrew Smith or Lilly Grant in our York office, Chris Burns or Sophie Arrowsmith in our Leeds office or Richard Buckley in our Sheffield office.

Please note this information is provided by way of example and may not be complete and is certainly not intended to constitute legal advice. You should take bespoke advice for your circumstances.

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