Human rights and a child’s wishes and feelings

Human Rights

The UN Convention on the Rights of a Child outlines the following:

  • Article 6
  • Article 7
  • Article 8
  • Article 9
  • Article 12

The court appoints assessors to advise them and these assessors have a responsibility to show compliance with the UN regulations. In the UK the right for the child’s voice to be heard is stipulated under the Children Act 1989 in Section 1 where the courts must consider the ascertainable wishes and feelings of the child. The job of assessing families for the Court is given to a number of bodies who place significant weight on the child’s stated “wishes and feelings”

EnglandChildren and Family Court Advisory and Support Service (Cafcass)
WalesCafcass Cymru
ScotlandChildren’s Hearings department of the Scottish Executive
Northern IrelandNorthern Ireland Guardian Ad Litem Agency

Article 8 of the European Convention on Human Rights (ECHR) gives us the “right to enjoy family relationships without interference from government. This includes the right to live with your family and, where this is not possible, the right to regular contact. ‘Family life’ can include the relationship between an unmarried couple, an adopted child and the adoptive parent, and a foster parent and fostered child.”

The danger of over-prioritising a child’s wishes and feelings in court

There is increasing concern that too much weighting is applied to the views of children in family law cases where the child is the victim of strategies employed by an alienating parent. That it’s far easier for an assessor to ask a child to state or write down their wishes and feelings than it is to truly investigate and understand how those wishes and feelings were generated.

The argument is first that a child affected by “parental alienation” is not capable of forming his or her own views, as a result of manipulation by an alienating parent from an early age or at the point at which a relationship ends. In addition, the rights of the child to express their views should not take priority over other rights that protect their welfare such as the normal development of the child, the right to know and be cared for by both parents, the right to preserve their identity including family relations all of which this form of child psychological abuse would thwart.

Institutions are also supposed to ensure that a child who has been illegally deprived of their identity, for which it could be argued loss of half its familial roots and the denial of the child’s authentic self as a result of the alienation is a contributory factor, provide appropriate assistance and protection, with a view to re-establishing speedily his or her identity. Many, including those that work in the system, feel there is a lack of appropriate assistance in the current court process to deal with this form of abuse. In addition, the process is anything but speedy.

The following articles describe why a child’s wishes and feelings should not be given such significant weighting in court procedures for contact and residency:

Please note, I am not suggesting that the voice of the child is ignored. What I’m suggesting is that there is proper investigation of the reasons behind their wishes and feelings. If that investigation concludes that the targeted parent is a normal range parent or that false allegations have been made, there is no justifiable reason for stopping direct contact. If the investigation determines there is a justifiable reason then of course there should be no or limited contact depending on the severity of the problem.

It should also be noted that within the Children Act 1989 that the “the child’s welfare shall be the court’s paramount consideration.” If the targeted parent is a normal range parent and there is clearly behaviour on the part of an alienating parent to thwart contact and or manipulate the child’s view of the targeted parent then this should, in my opinion, take greater priority as a welfare concern above the child’s stated wishes and feelings.