Family disputes are often very stressful, emotional, drawn-out affairs for the adults caught up in them, so it doesn’t take much imagination to realise just how upsetting they can be for the many children who suddenly find their parents or caregivers at loggerheads.
Children derive their sense of security from the parents. When the family home is calm and happy they feel settled and secure, while, by contrast, turbulence and arguments are deeply unsettling. Even resilient teenagers can be badly affected. Fortunately, the sensitive nature of family disputes is well recognised by the legal system. Many family lawyers work hard to minimise courtroom confrontation and the frequently distressing sense that for one side to prevail, the other has to lose. Guided negotiation and arbitration can help estranged couples reach mutually satisfactory agreements without any need for court time at all.
The views of children
Children are never asked to attend court themselves but are still placed at the centre of proceedings. Their best interests are focused on as the primary deciding factor in judgements and the views of older children are normally taken into account when judges make rulings on contentious cases. Usually, this is done via the written testimony provided during a case, but on occasions judges will meet with children involved in family disputes or write to them, asking what they think of events in their family, or explaining the reasons behind a judgement.
Letter-writing in particular is a delicate balancing act. Receiving a letter from a judge may be an unwelcome reminder that the youngster’s parents are in conflict, but it is clearly important – and just – that children are listened to and their views considered. Phrasing the letter in an effective but sensitive way is crucial, but the skills required do not come naturally to every judge, leading many to completely avoid direct communication with children involved in the cases before them.
Toolkit guidance
In recognition of the importance to family justice of well-honed communication with children, the President of the Family Division recently published a ‘toolkit’ for judges on this very topic.
The guidance provided aims to help judges to make good decisions on the “when, why and how” of writing to children involved in family disputes. The toolkit was also designed to encourage judges to do so whenever practical or possible.
President Sir Andrew McFarlane said:
“The benefit of judges communicating with the child at the centre of proceedings has long been recognised, yet few of us have ever written to a child to explain our decision in their case. There is an understandable judicial reluctance in this regard, partly because of the realisation that the letter will be important and there is a fear of saying the ‘wrong thing’. In addition, judges may be worried that it will take a good deal of time to get the letter ‘right’, coupled with the well-known inertia that comes from staring at a blank page, without a template or previous experience to guide the writer.”
Sir Andrew continued:
“As is made plain throughout [the toolkit] by direct quotation from children, a child is entitled to be given an accurate and informative account of what was decided, and why, from the judge who made the decision. This will be important for the young person in understanding that their wishes and feelings have been taken into account by the court, and in supporting them to accept or make sense of the decision as they move forward with their life thereafter.”
The toolkit is a very practical document, he explained, and drafted with a clear focus:
“This very readable ‘toolkit’ does a great deal to break down the factors that may have inhibited judges in the past. To get past ‘blank page’ inertia, the content of a typical letter is built up, sentence by sentence, with suggestions, explanations and examples, and the whole is rounded off with worked up examples.”
The toolkit was developed by the Judiciary of England and Wales in conjunction with two independent advisory bodies: the Nuffield Family Observatory and the Family Justice Young People’s Board. The former is a data-focused research organisation, while the latter is an advisory body made up of more than 75 children and young people who have experienced the family justice system or who have an active interest in children’s rights.
Writing to children – A toolkit for judges is available here.