Subjects with agency? Children’s participation in family law proceedings

Abstract

Galvanised by the UN Convention on the Rights of the Child, many jurisdictions now recognise children’s rights to participate in decisions that affect them. While such legal rights have increased, research on family law proceedings shows how children’s views can still be undermined, ignored or not even sought in decisions about them. This article uses the academic resources of childhood studies, to consider dominant and alternative narratives of children’s participation within Scottish family law. Drawing upon reported case law and empirical research, the article concludes that children’s participation gains protection by being institutionalised but children’s participation is attenuated because it is not recognised as relational and contextual. As rationality, consistency and autonomy are privileged, the weight given to children’s views is lessened by concerns about children being manipulated or distressed. Courts and their decisions may be child-focused, centring on children’s welfare, but they are not child-inclusive, involving children in decision-making.

Keywords:

• Family law
• participation
• views
• children
• manipulation
• children’s rights

Acknowledgements

I would like to thank the generous contributions of children and young people, professionals and policy-makers throughout the empirical studies, in which I was involved. I want to emphasise the collaborative nature of these studies, with the above and with numerous academic colleagues. The chapter in particular makes reference to collaborative projects funded by the Big Lottery Fund, the British Academy, Economic and Social Research Council (R451265206, RES-189-25-0174, RES-451-26-0685), the European Research Council, the Leverhulme Trust, the Royal Society of Edinburgh and – particularly for this paper – the Scotland’s Commissioner for Children and Young People (now the Children and Young People’s Commissioner Scotland). The paper has benefitted from discussion at two seminars: the June 2015 colloquium on the United Nations Convention on the Rights of the Child Implementation Project (CRC-IP) http://www.stir.ac.uk/crc-ip/ and the November 2015 ‘International Multidisciplinary Workshop: Voices, Choices and Law - Weighing Children’s Views in Justice Proceedings’ organised at the University of Liverpool.

Notes

1. Further, Mackay sent questionnaires to the family law practitioners and then parents, who had been involved. Responses from parents were limited, with 28 responding, and a following eight parents and two children were interviewed. Additional interviews were done with family law practitioners, sheriffs and non-legal practitioners.

2. At the time of writing, a sheriff is a professional judge in the second tier of courts. A sheriff would hear most family law cases in the first instance – but some cases are heard in the Court of Session in the first instance.

3. This list is largely taken from Tisdall and Morrison (2012), pages 158-159.

4. Due to the Advice and Assistance (Scotland) Amendment Regulations 2010 and the Civil Legal Aid (Scotland) Amendment Regulations 2010.

5. Although note that a gap of 16 months was not considered material in C v M 2005 Fam LR 36 and in S v A 2015 WL 1839055 any material change of circumstance could be addressed by a party using a minute to vary (para 19).

6. To be more specific, the Sheriff wrote that he was not the appropriate person to determine if the children had lied to the consultant psychologist. The Sheriff did have a general conversation with the children as they had arrived at court expecting to see him.

7. Statistics are available from a freedom of information request to the Scottish Legal Aid Board (see http://www.clanchildlaw.org/app/uploads/2014/11/Legal-Assistance-for-Children-and-Young-People.pdf). This found a drop in civil advice and assistance intimations, from 1852 for children under age 16 in April 2009/March 2010 to 898 in April 2011/March 2012.

8. With new guidance imminently to be published, to improve practice.

9. See also S v S (2012 Fam LR 32).

10. See also Cobb, 2015.

11. This case was about contempt of court because the mother had not fulfilled the requirements of contact established by a previous order.

12. In England, 41.9% of resident parents involved in in-court conciliation attributed ‘domestic violence’ or ‘emotional abuse’ as the reason for separation. More than half of the resident parents reported fear of violence made it difficult to resolve problems associated with contact.

13. Exceptions include AS v AB 2010 G.W.D. 32-663 and JB v AG 2013 GWD 3-96.