Children’s Perspectives on Law Procedures
Jan Pryor
Roy McKenzie Centre for the Study of Families
Victoria University
Wellington, New Zealand.
Invited presentation to the conference “Interventions for the Best Interest of the Child
in Family Law Procedures, Hanns Seidel Foundation April, Wildbad Kreuth,
Germany.
“Childhood is not an idiosyncrasy”
(English Judge)
Children are the bystanders in the all-too-common process of family
disintegration and dissolution. This does not mean, however, that they are passive
participants – we are beginning to understand that children can, under the right
circumstances, be active and articulate contributors to the finding of solutions for the
situations faced by their transforming families.
Of relevance to this conference are children’s rights to contact with both
parents, and rights to procedural involvement. Yet ‘rights talk’ invokes dismay in the
hearts and minds of some commentators, and there has been the comment that we
‘abandon children to their rights’. Indeed, we can become bemused and confused
around concepts of rights, duties, obligations and responsibilities, and a common fear
is that if we abandon children to their rights then we are demanding that they make
decisions that carry weighty responsibility. In reality, we should properly seek to
encourage participation by children, not determination.
The involvement of children in legal procedures that have important
consequences for their lives, varies across jurisdictions and countries. In Germany it
has long been the case that Judges talk to children; in other countries, for example the
United Kingdom, that is far less likely to happen. In most countries children may have
a professional person (a social worker, psychologist, counsellor or lawyer) working
with them to help elicit their views on the often life-changing decisions that are being
made on their behalf.
Most countries – with the exception of the United States and Somalia – have
ratified the United Nations Convention on the Rights of the Child (UNCROC) and
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this has had an impact on how the involvement of children is viewed, by at least
underpinning the rights of children to be heard in matters of importance to them.
However, this is tempered, at times, by difficult issues associated with how and when
to listen to children, and in practice the dictum of the best interests of the child is
often interpreted from an adult perspective.
In turn, the ways in which children are regarded in relation to the law depends
on a wider view of childhood, that might be held either implicitly or explicitly.
Broadly speaking there are three views of childhood:

The romantic child, in which children are seen as innocent and to be protected
from the exigencies of adult concern. Rousseau was an advocate of this
position, and it leads in the law to a welfarist stance where it is believed that
children should not be involved in legal issues that are properly those of
adults. Childhood, in this view, is a separate entity from adulthood.

Children as competent mini-adults. This view underpins the belief that young
children can be treated as criminals, since they are able to be responsible for
their actions in an adult way. There is no distinction between childhood and
adulthood.

Children as undeveloped adults. This position sees children as ‘becoming’
adults, on a continuum of maturity. It underpins the common assumption that
age can be used as a marker of maturity e.g. sexual activity allowed at 16,
voting at 18 years.
Recent writing by sociologists of childhood lead us understand that children are
active agents in their development, and are able to participate and articulate their
views and perspectives. This, in tandem with the acknowledgement of children’s
rights, has led to a body of research that sets out to elicit the views of children and
young people. In particular, scholars have sought children’s beliefs about living
arrangements after their parents separate. In this paper I will consider children and
young people’s views of what living arrangements should be after divorce; I will
review the research that reports on talking to children about involvement in Court
processes; and finally discuss ways in which we might approach the involvement of
children. The corpus of knowledge we have about children’s views is
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What do young people think about living arrangements?
The default arrangement for children after divorce is to live with their mother
and to visit their father, and it is still the case that many fathers see their children
every alternate weekend. Several studies suggest, however, that young people do not
find this enough.
1. Fabricious and colleagues interviewed over 800 undergraduates about their
views of living arrangements (Fabricius 2003). He found strong support in this
group for shared time with each parent.
2. In a study of over 300 adolescents in New Zealand (Pryor 2001), I found that
the majority endorsed young people in vignettes wanting to equal time with
both parents, even when conflict was a feature of the vignette. Participants did
not vary in their responses according to their own living arrangements.
3. In an Australian study (Parkinson, Cashmore et al. 2005), 60 young people
between the ages of 12 and 19 years whose parents had divorced were
interviewed about their experiences. The majority considered that time
between parents should be divided half and half, or ‘fair’. The more
involvement they had in deciding living arrangements the happier they were,
and a half said that they did not have enough contact with their nonresident
parent.
Overall, young people want to maintain effective relationships with both parents. The
majority in studies that have asked them want equal time with both parents, or at least
a ‘fair’ arrangement. In many instatnces 50-50 time is not practical for families, but
sufficient time with each parent to foster close relationships is important.
What do children say about their participation in decision making?
An Australian study (Cashmore and Parkinson 2008) asked 47 children aged 6 –
18 years how much say they had had when decisions were made about them.
Half of the children were involved in contested cases. Sixty percent (mostly
older children) had some input, and over half wanted more than they had (mostly
younger children). Over 90% thought that children should be involved, and
thought that children over 7 years old should be consulted. Interestingly, they
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said that it was not easy being asked (especially to make decisions) but would
rather be involved than not.
Children in the UK involved in the legal system.
In the UK, Douglas and colleagues (Douglas, Murch et al 2006) interviewed
children about being legally separately represented. They were asked what
constituted a good guardian or lawyer. They wanted someone who took time to
get to know them, who they could trust and who would not be patronising. They
also wanted clear explanations about the guardian’s role, to be kept informed
about the progress of their case, and especially that the guardian would report
accurately what they said. They also stressed the importance of confidentiality.
The researchers also noted that children who did not have a guardian they
could trust were confused, angered, and depressed by the system. The
researchers suggested that children need a ‘passage agent’ to guide them through
the process.
Children’s guardians in Germany.
Stotzel & Fegert (Stötzel and Fegert 2005) carried out a small study of
children who had been represented by a children’s guardian. The children’s
understanding of the role was that it was that of representation of their views, of
support in the system, and of having a legal aspect. They were happy with the
process to the extent that they felt supported, and that their feelings had been
expressed accurately.
Children’s experiences of Counsel for the Child (now Lawyer for the Child) in New
Zealand.
Taylor and colleagues (Taylor, Gollop et al. 1999) interviewed 20 eight to 15-yearolds about their experiences of having a legal representative appointed for them.
Their accounts were mixed; one fifth disliked their lawyers, a quarter liked them. The
rest were ambivalent. Their advice to counsel was similar to that of the English
children: listen, talk on our level, take time to get to know children, be friendly and
respect children’s confidentiality.
Talking to Judges – the Australian experience
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In Australia and New Zealand there is considerable support for increasing the
instances of children being interviewed by Judges. There is, however, mixed support
for this. Some Judges are seen as admirably suited to talking with children – they
have empathy, can be informal, and are able to elicit children’s views. Others,
however, are not so well equipped and there is anecdotal evidence of Judge, wearing
his robes, sitting a small person in his huge chair and asking ‘Well, what do you
want?”
Parkinson and colleagues in Australia (Parkinson, Cashmore et al. 2007)
talked to children about this. Over a fifth of those interviewed wanted to talk directly
to the Judge or to the Court, and all of these children were involved in contested
cases. In a second interview of the same group of children, 85% agreed that children
should have the option of talking to a Judge. The reasons given for talking were that
they wanted their views heard by the person making the decision; and they wanted to
avoid mixed messages and misinterpretation of their wishes. Children who were not
involved in contested cases thought that talking to the Judge might make things
worse, that it would be too formal, and that these things should be kept in the family.
Again it is important to note that we need to distinguish between ‘ordinary’ cases and
serious, conflict-laden cases.
Should children be interviewed in the context of the Family Court?
There are several compelling reasons for involving children in both the
informal and the legal processes that occur when their parents part. First, children
have a legal right to be heard, by virtue of the United Nations Convention on the
Rights of the Child (and, in New Zealand, the Care of Children Act). Second,
children want to have their views considered, and research suggests that they benefit
measurably from being listened to and informed. Third, we want to hear their views,
if we consider that children are competent to have a valid view of their circumstances.
Importantly, talking with children provides an opportunity to give them
information about separation that they might not otherwise get. We have a lot of
knowledge now from research about what children generally want, and about what
benefits them most. Having that information might help them to think more widely
about their own situations than they would otherwise and to come to more informed
positions. Talking with children also provides a chance to support them
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dispassionately – something that parents are often not able to do in such
circumstances.
There are of course also disadvantages in interviewing children. First, they
may not want to be talked with – they may be shy, or intimidated by the situation.
Second, they may not know what they want. Certainly they describe mixed feelings
when their parents part – confusion, grief, relief, and sadness often being
intermingled, and it may take time and support before they are able to know
themselves what they want. Often, too, what they want is incompatible with what is
possible – they want their parents to reconcile.
Third, professionals vary in their skills in interviewing children – it is a subtle
and difficult skill that many lawyers and Judges have not acquired. Furthermore, there
is a risk in prolonged cases of children experiencing interview fatigue – they are
interviewed by too many people too many times.
Finally, and problematically, children’s wishes may not reflect their best
interests. An example of this is a young girl wanting to live with her father when he
has been abusive to her.
What should we do?
In general, we use age as a proxy for children’s competence to hold valid
views in relation to living arrangements (and other legal decisions that concern them,
including decisions about medical procedures). In the United States, for example,
young people aged 12 or over are considered able to be interviewed. In Germany,
children as young as four years are interviewed by Judges. In the United Kingdom,
the concept of ‘Gillick Competence’ is sometimes used to determine a young person’s
ability to make decisions. A young person under the age of sixteen is presumed to be
incompetent, but can be subjected to the test of Gillick competence:
‘A competent child is one who achieves a sufficient understanding and intelligence to
enable him or her to make a wise choice in his or her own interests’. In practice, this
is difficult to determine.
How can we support children?
In fact, in Family Courts, we are not asking children to make decisions and we
are often dealing with adults who would not pass a test of Gillick competence. We
are, however, or should be interested in maximising children’s ability to contribute to
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a process that has direct and serious consequences for them. This means that instead
of presuming incompetence, we should be finding ways to enable children to
consider their situations free of influence and bias, and to come to positions for
themselves that are both informed and rational. It is possible to maximise autonomy
and competence in them by listening, informing, and supporting. Specifically,
information based on research that has listened to other children about their
experiences and wishes can help children to put their situation into a wider context.
Conclusions
Listening to the voices of children in situations that are of serious consequence
for them has become an issue that cannot be ignored. Children have the right to
express their wishes; they benefit measurably by being heard, and they want to have a
voice in the often-fraught processes that accompany the separation and divorce of
their parents. Research that has asked young people directly about their perspectives
on divorce indicates first that children want information about what is going on; they
almost overwhelmingly believe that where possible close relationships should be
maintained with both parents; and they want in a variety of ways to have their wishes
and feelings taken into consideration.
Professionals have, however, struggled with the complications of
listening to children and the law has, by and large, taken a welfarist position toward
them by deeming them incompetent to hold rational views. Indeed this is sometimes
the case, as it is for their parents who are emotionally involved in the divorce. We are
in a dilemma between protecting children who are the hapless recipients of the fallout
of their parents’ divorce, and giving them too much responsibility for making
decisions. We need to distinguish the majority of relatively benign cases, from the
few that involve high conflict and where parents are unable to take a child’s
perspective. In these situations, parents are not good advocates for their children.
In this paper I have reviewed research that has examined how children
view participation in Court processes and decision making. It is clear that they have
clear views about participation, and about what they need from guardians and
lawyers. I have suggested, too, that they benefit from knowing what other children
have said about participation and about what arrangements work best for them.
What emerges is the conclusion that young people should not be
considered incompetent to hold rational views, and that they can be supported to both
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come to those views and to express them - to make ‘wise choices’. This includes
providing them with information about how other children have viewed similar
situations – knowledge from research that has asked a wide range of children. They
need a representative who listens and talks to them at their level; who keeps their
confidentiality, and who represents their views accurately in Court proceedings. This
person can be conceptualised as a ‘passage agent’ who guides, listens, represents, and
facilitates to the fullest possible extent the involvement of the child in legal
proceedings that determine fundamental aspects of their lives. Children can and do
accept decisions that are made on their behalf, so long as they have been informed,
involved, consulted and supported to the best of everyone’s abilites.
References
Cashmore, J. and P. Parkinson (2008). "Children's and parents' perceptions on
children's participation in decision making after parental separation and
divorce." Family Court Review 46(1): 91-104.
Fabricius, W. (2003). "Listening to Children of Divorce: New Findings That
Diverge from Wallerstein, Lewis, and Blakeslee." Family Relations 52(4):
385-396.
Parkinson, P., J. Cashmore, et al. (2005). "Adolescents' Views on the Fairness of
Parenting and Financial Arrangements After Separation." Family Court
Review 43(3): 429-444.
Parkinson, P., J. Cashmore, et al. (2007). "Parents' and children's views on
talking to Judges in parenting disputes in Australia." International Journal
of Law, Policy and the Family 21: 84-107.
Pryor, J. (2001). "Adolescent attitudes to living arrangements after divorce."
Child and Family Law Quarterly 13(2): 1-13.
Stötzel, M. and J. Fegert (2005). "The representation of the legal interests of
children and adolescents in Germany: A study of the children's guardian
from a childl's perspective." International Journal of Law, Policy and the
Family 20: 201-224.
Taylor, N., M. Gollop, et al. (1999). The role of Counsel for the Child perspectives of children, young people, and their lawyers. Wellington, New
Zealand. Department for Courts: 19.
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