The impact of contested court proceedings on children

The Nuffield Family Justice Observatory (NFJO) has recently published a research paper outlining children’s experience in contested private law court disputes. These are court proceedings between separated parents regarding the child arrangements, namely where the children shall live and the frequency and type of contact they will have with both parents following a relationship breakdown.  

The research is based on UK and international studies conducted over the last 20 years whereby children’s and young people’s thoughts on parental separation and/or their experience of court proceedings were directly obtained. A copy of the research paper can be found online via Children's experience of private law proceedings: Six key messages from research - Nuffield Family Justice Observatory (nuffieldfjo.org.uk)

The research revealed that children are actively – not passively – involved in their parents’ separation and court proceedings, with six key findings as follows: 

1.    Parental separation can be distressing, traumatic and confusing for children

The impact of a family break up can be significant on children and for some will last well into their adulthood, especially where parental separation is marked by high conflict and court proceedings. Separation can affect not only a child’s mental health, but also their schoolwork, concentration levels and sleep. It can often lead to an array of emotions such as guilt, anger, grief, confusion and sadness. The court system should therefore be designed to minimise the harm and stress for children rather than to add to it. 

2.    Good communication and access to information are important for children 

Children generally feel kept “in the dark” during parental separation, both by their parents and professionals which causes significant distress.  

Research from England highlighted that most children had very little communication with their parents about family change – 25% said that no one talked to them about the separation when it happened and only 5% felt they were given a full explanation. 

Further, the research shows that children were given poor explanations of what was going on in court by parents and professionals and they had a limited understanding of the court process, the role of lawyers and judges, and their right to be heard. 

3.    Being heard and understood in court can feel empowering for children 

The research revealed that children feel the courts should give their views equal weight to the views of their parents. Further, children feel they are not listened to or that their views are not considered important which causes a lot of distress and fear. 

In England and Wales, a child’s wishes and feelings must be considered by the court as part of review of a child’s welfare in contested child arrangement proceedings. However, under section 1 of the Children Act 1989, a child’s wishes and feelings is only one of the factors the court must consider under the “welfare checklist” and it is also caveated in light of the age and understanding of the child. 

The research suggests there are different ways children can participate in court proceedings, but generally children feel that having their views represented in court by a professional was appropriate. Simple changes would make children feel more listened to, such as communicating a final decision in a child-friendly way and ensuring a child is informed proceedings have been started and what that means. 

4.    Being properly involved and consulted in decision making is important for children 

Children wish to be more involved in the decision making process when their parents separate, but without being put in the difficult position of feeling responsible for the outcome in proceedings. Children should be supported so that they do not feel overburdened, yet also feel like their voices are being heard and considered. 

5.    Getting the right support makes a difference 

When interacting with children, professionals should be sensitive and supportive. They should take time to get to know the children, gain their trust and be empathetic about their situation. Children may need different forms of support throughout the separation process and improving support in the community, including counselling and schools, may assist. 

6.    A child’s thoughts and feelings on contact are complex and take time to process 

Children’s views about contact following separation are complex and diverse. They need sufficient time and space to reflect on and develop their views regarding contact with a non-resident parent following a separation, especially where domestic abuse is relevant. There needs to be flexibility in making arrangements to allow children the time to try things out. 

Whilst the family court has a role to play in resolving disputes between separating parents over child arrangements, the research shows that decisions made by the court have a significant impact on children’s lives and that children need greater support and guidance to help them adjust and cope with a family breakdown. Furthermore, children’s experiences of being left out of the decision making process can increase anxiety and upset, which highlights the need for children to be better involved in the process. 

There are alternative non-court dispute resolution options available to separating parents for resolving child arrangements such as mediation, collaborative law, direct or solicitor led negotiation to name but a few. Child inclusive Mediation may be particularly helpful given the findings of the NFJO.

Considering the outcome of the above-detailed research and bearing in mind the significant delays currently being experienced in the family court in contested proceedings concerning child arrangements, I would encourage parents to explore these alternative options. 

Please do not hesitate to contact me directly on 01206 217378 or email shelley.cumbers@birkettlong.co.uk if you would like to arrange a free 15 minute call to discuss how we can help.