Caught in the middle of their parents' relationship breakdown, it is important that the best interests and wishes of any children are considered. If parents are separating they will need to agree the arrangements for where the children will live and how often they will see the other parent.
It is better for all concerned if this can be agreed amicably. The courts do not usually interfere in arrangements for children, but, if parents cannot agree, one of them will need to apply to the court for a child arrangements order to determine the time the children should spend with each parent.
Only in very extreme cases might a child attend court and give evidence, for example if a serious allegation has been raised about a parent's behaviour toward a child. Even then any attendance at court is rare.
Although children do not usually have to go to court, it is important that their voice is heard and the court will always consider the needs of children to be paramount.
To ensure that the court has the right information, it will notify an organisation called CAFCASS that proceedings have been commenced. CAFCASS (the Children & Family Court Advisory and Support Service) is an independent body, and it's caseworkers undertake investigations for the court and make recommendations as to what arrangements are in the best interests of the children.
Initially, CAFCASS will make enquiries of the police, the local authority, and possibly the children's school, regarding the safety of the children, in order to understand if there are any reasons why the children might not spend time with either of their parents.
At this stage the children's views are not sought. As the case progresses CAFCASS might be asked to prepare a more detailed report for the court - this might be if the initial report raises concerns about the possible safety of the children, or allegations of violence have been raised by one parent against the other. It might even be that in the case of older children the court feels that their wishes and feelings are relevant to the case.
To prepare this report the caseworker may speak to the children to find out what they want to happen.
In that case CAFCASS will arrange with the parent that the children are living with to meet with the children - with the length of the meeting depending on the children. The meeting could be at home or at a neutral venue (such as the CAFCASS offices). The children may be spoken to without a parent present, but that will be dependent on each child and their willingness to speak to CAFCASS.
The views of the children are something the court will take into account, but it will depend on the age of the children. The views of older children are more likely to be persuasive to the court than those of a young child, for example a child aged 13 is more likely to be able to explain their views than a 4 year old.
However, in all cases the court can make decisions which override the views of children if the court feels that is in their best interests.
Usually children do not need a solicitor, but where the disagreement between the parents is particularly entrenched or complicated, the court may decide that the children should be a part of the legal proceedings in their own right, and in those circumstances the court will appoint a guardian for the children, who will in turn instruct a solicitor who will represent the children separately from the parents.
A guardian will be someone who works for CAFCASS, but their role will be different to that of the caseworker who prepared the report for the court. The guardian will meet the children more regularly and will represent them in court.
On rare occasions, a judge may meet privately with the children to find out what they want the court to do. This does not mean that the judge will agree with a child's wishes, and sometimes they must explain that they cannot fulfill their wishes.
For further information on any aspect of relationship breakdown or divorce, please contact Sarah Lightfoot-Webber in the Family Law team on 01489 864 132 or email email@example.com
Lawcomm has offices in Whiteley and London.
This article is for general information only and does not constitute legal of professional advice. Please note that the law may have changed since this article was published.