The President of the Family Division, Sir Andrew McFarlane, has published guidance for family judges on when, how and why to write to children in family court proceedings.
The toolkit is the product of a collaboration between the judiciary, children and young people and other professionals who work in and around the family justice system.
The guidance gives public and private family law judges an approach for writing to children created after input from children and young people, judges, researchers and academics, social workers, clinical psychologists, communication experts and others who work with children and the courts.
The guidance was developed with the Family Justice Young People’s Board, with individuals sharing their own experiences of proceedings and their thoughts on communication from judges.
It states that children in family court proceedings often describe a sense of being “left in the dark” about what is happening in court, including at the end of proceedings when important decisions about their lives have been made. Jude Eyre, Associate Director at Nuffield Family Justice Observatory said:
“Children’s rights to have a voice and participate in proceedings are enshrined in law. But we know that their experiences often don’t match up to what they want or need or are entitled to. This toolkit represents an important step forward – an active response to what children have said needs to change.”
A study by Cafcass (2010) found that the more children felt that they had been listened to, the more satisfied they were likely to be with the outcome of proceedings – even if the decision was different to what they wanted. In his foreword to the guidance, the President of the Family Division said:
“The publication of this toolkit for judges writing to children is a most welcome event. 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.
As is made plain throughout 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.”
He said that this ‘toolkit’ does a “great deal to break down the factors” that may have inhibited judges in the past. He said:
“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.
I am very grateful to all who have been involved in developing this most valuable resource, but I would particularly like to thank the young people who have contributed. Their endorsement of what is said here should give judges solid confidence that, if they follow these guidelines, they are likely to produce a message that will be of real and lasting value to the young person who has been the centre of their concern.
My hope is that, like many things, once judges have used this toolkit and have written to children in a few cases, doing so will rapidly become the norm and no longer a task to be avoided. I would urge all judges to read this guide and to use it from now on in their cases. The publication of the toolkit has the potential to change the culture and to make the sending of a short letter from the judge the norm in all substantive cases; I earnestly hope that it does indeed do so.”
The Guidance states “top tips” to to tailor the letter to the child’s individual needs and circumstances. For example:
- “Age- and developmentally-appropriate language – use language that the child will be able to understand. Avoid legalistic language and explain complicated phrases or terminology. Remember that a child’s developmental age may differ from their chronological age.
- Additional speech, language and communication needs – children with additional learning needs or neurodevelopmental conditions (such as autism spectrum disorder, dyslexia, learning disabilities or attention-deficit-hyperactivity disorder) may communicate and process information differently to their peers. Letters might take different forms depending on the child’s needs, including for example a video or recorded message.
- Cultural background – children’s experiences and what’s important to them can vary massively from child to child and family to family, including as a result of their ethnicity, religion or heritage.
- Writing to children in their language – where English is not a child’s first language consideration should be given to providing a translated version. In Wales, some children may prefer to receive the letter in Welsh, or in both English and Welsh.”
Jennifer Headon, Head of International Family Law at Birketts, said that this guidance is “very welcome” and comes after a number of letters from judges to children explaining the reasons for their decision-making have been published as part of anonymised judgments in child arrangements proceedings. She continued:
“Whilst it will not be suitable in every case, writing directly will help the child in question feel involved in decision-making and feel that his or her voice has been heard and factored into the outcome. The importance of recognising the child’s voice in decisions made by the court impacting their day-to-day lives cannot to be underestimated.
That is equally true of other forms of non-court dispute resolution and the guidance coincides with an increase in awareness and popularity of child-inclusive mediation where the child directly inputs into the mediation process. All of this reflects a broader shift in the profession away from resolving family disputes in an adversarial manner towards a more collaborative, mindful, and amicable approach, prioritising the welfare of children and preserving a positive co-parenting relationship between parents in the long-term.”
