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Section 4 (Web #18)
A small but growing minority of parental separations involve court proceedings to make residence and contact arrangements. Children in these private law disputes are not usually parties to the proceedings and have no direct involvement in court hearings, which leaves them with little say in the arrangements made.
The authors point out that at times of such high stress and family disruption, it may be unrealistic or "potentially dangerous" to assume that parents will act reasonably or that an arrangement that parents can agree upon will necessarily put the child's best interests first. Your Shout Too! reports on research into the views of children and young people involved in court proceedings following parental separation and focuses on their perceptions regarding the decisions made on their behalf.
Residence and contact orders are made under section eight of the Children Act 1989 where the court considers this necessary to promote and safeguard the welfare of a child (usually where there is a dispute between parents about arrangements). Section seven of the act gives provision for a report to be written for the court by a social worker or Cafcass family court adviser (FCA). Since 2001, Cafcass officers have a duty to give due weight to the wishes and feelings of the child concerned. The importance of hearing the views of children is strengthened by rule 9.5 of the family proceedings rules 1991, which allows the court to make a child a party to disputed section eight proceedings.
In 2005-6, Cafcass responded to 26,144 requests for private law reports and its children's guardians represented children in 1,035 cases in which the child was made a party in disputed section eight proceedings. The requirement to ascertain the children's wishes and to provide them with representation is laid out in the United Nations Convention on the Rights of the Child that states that children and young people shall be "provided with the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or a body".
The survey addressed four aspects of young people's experiences, their:
One or more professionals in addition to the Cafcass worker were seen by 43% of the children and young people. Professionals were most often social workers, counselors or solicitors, who were rated most highly. Three out of five respondents believed the professionals they had seen had been helpful (half of the respondents had seen only a Cafcass worker). Another 21% found professionals "not very helpful" and 8% said the professionals had made things worse.
Asked about the Cafcass worker specifically, 57% believed this individual had "helped to make things better" with the younger age group of 11- to 13-year-olds more likely to believe so. One third said the worker had not helped to make things better and one out of 10 said the worker had made things worse. A statement that said the Cafcass worker helped "by helping me to say what I wanted" was ticked by 43%. But one in four respondents judged that the worker had not helped in any of the six ways offered.
Critical comments about the Cafcass service included not being listened to properly issues around trust and confidentiality such as where the FCA had passed information to the court without the child's knowledge or permission pressure to see a parent and on occasion feeling patronized.
Only 10 of the young people attended court, and two of these said they would have preferred not to. Of those who did not attend, 60% said they would not have wanted to while 40% would have liked to.
For 85% of respondents the residence arrangements made were proving satisfactory, and "mostly satisfactory" for another 10%. Only four respondents said their residence arrangements were not satisfactory. Contact arrangements for seeing the non-resident parent were found to be satisfactory by 62%, and "mostly satisfactory" by a further 24%. The remaining 14% were dissatisfied with their contact arrangements.
The "biggest casualty" in terms of children's contact with key family members was grandparents on the side of the non-resident parent. Thirty per cent of respondents did not see as much of their grandparents as they would have liked.
Siblings relationships were very important to the 90% respondents who had siblings. Of those in this group, 16% believed they did not see enough of their siblings living elsewhere. Some had lost contact altogether, and this was a cause of unhappiness and frustration for a large minority of respondents.
The authors concluded that it was the individual characteristics of the child, the parents and in particular the intensity of the conflict that had the biggest impact on the young people's satisfaction with the outcome of the court case and noted the "remarkable maturity" of many of the respondents, and the care and concern they showed for their parents, sometimes at the expense of their own wishes and feelings. They were left with a sense of some of the children being left to live the life agreed for them by their parents and the courts with a sense of pragmatism and resignation.
None of the respondents showed awareness of anything they could do themselves to initiate change or review of residency or contact arrangements that left them "effectively locked into the arrangements ordered by the court or agreed by their parents with no sense that it might be possible for them to have any agency in their own situation". In fact there is provision for children to seek leave to make applications for variations in their residence or contact orders, but in practice this happens rarely. Susannah Bowyer is research officer at Research in Practice, which provides a range of services supporting evidence-informed practice
Contact with Siblings and Grandparents
Listening to Children's Views
Long Term Strategy
- Bowyer, Susannah, Community Care, 9/6/2007, Issue 1689
Coping with Divorce or Separation
- LifeCare. (2011). Coping with Divorce or Separation, U.S. Department of Health and Human Services.
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