The Voice Of The Child – Ventriloquism Or Truth?

The Victorian maxim, 'children should be seen and not heard' is now a thing of the past. Times have significantly moved on. The Court of Appeal has ruled that the child's entitlement to a voice is a fundamental procedural principle in our system. This should come as no surprise. On a domestic level, developments in case law together with the Final Report of the Voice of the Child Dispute Resolution Advisory Group produced in 2015 have acknowledged the need to give children participating in UK proceedings a greater voice. In a wider context, the UN Convention on the Rights of the Child obliges Member States to give a child capable of forming their own views an opportunity to express them, and the new provisions of Recast Brussels II proposes to extend this as a minimum standard across Member States of the EU

It makes sense that in children proceedings the child should have an opportunity to express their views but the more complicated question is just how much weight should we be placing on the child's wishes and feelings? To what extent is the child's view really his/her own and how do we deal with the universal parenting dilemma that sometimes what a child says they want is not what they actually mean or need?

The child's voice: a fundamental principle

The recent case of Re D [2016] EWCA Civ 12 confirmed that 'in every case, the court is required to ensure that the child is given the opportunity to be heard... the rule of law in England and Wales includes the right of the child to participate in the process that is about him or her.' Here, the Court of Appeal was concerned with the question of enforcing a Romanian custody order which had been made without the Romanian court making a direct or indirect enquiry of the child's wishes and feelings. The child in question (David) was eight years old at the time that the father was seeking to enforce the Romanian order for the child to live with him but the Romanian proceedings had been in train for several years before the final decision was made.

Throughout its decision making process the Romanian court did not provide David with the opportunity to be heard - at one point the father suggested that his son's feelings and wishes should be assessed and made available to the Romanian court, but the mother objected to this. In looking at whether or not to enforce the Romanian order, the English court made it clear that 'the fact that the mother opposed David being heard is neither here nor there...