News

Hazel Wright’s article on family mediation in Solicitors Journal and The Barrister

  • November 30, 2016
  • By Hunters Law

Why won’t you listen?’

Family relationship specialists, be they lawyers, mediators, or family therapists, are increasingly encouraged to listen to the ‘voice of the child’. We know that, particularly in court, it is also important to listen to the voices of the other members of the family, usually the parents, and in this internet age, to consider who else might be tuning in to the distress felt by all involved in hearings about children.

In the case of B (A Child) [2016] EWCA Civ 1008, decided on 13 September 2016 in the Court of Appeal by Lady Justice King, the father appealed against a decision about his contact with his 11-year-old daughter that he disagreed with. As is increasingly the case these days where no legal aid is available, King LJ had a number of difficulties in her work on this case. The mother did not attend the court, and neither mother nor father was legally represented. The father had the assistance of a McKenzie friend.

Considering the voices

The child said to many specialists that she did not want to see her father. These professionals were tasked by the court to find out her true wishes (pursuant to the Children Act 1989). However, the father did not agree with the statements made by those specialists, and he wanted his daughter to be examined again, this time by a psychiatrist. King LJ refused to allow this. That an earlier judge had said what this girl wants and needs ‘is an end to the litigation and the opportunity to get on with what remains of her childhood’. This time the Court of Appeal listened to her, and the child’s voice was heard.

The voice of the father was also heard, however. We know this because for the first hearing, the father had submitted extensive covert video recordings which he had made over period of years. As is usually the case now, the judge agreed the recordings could be admitted as evidence, but in fact concluded that little weight should be attached to them.

The voice of the mother was influential in the judge’s reasoning, too. The mother had allowed the child to overhear conversations between herself and the grandmother which were critical of the father. She was criticised for this, but ultimately the judge decided the father also had responsibility for the child becoming alienated from him.

Ears and eyes of others

Finally, the court had to deal with the issue of publication of the judgment. The McKenzie friend submitted that not only would publication make matters worse between the parents, but there was a distinct danger the child might find the judgment on the internet. The father said that the judgment was not ‘a realistic reflection of the case’ and so should not be published. The Court of Appeal decided that this is a very important issue, not least because of the question over the use of covert recordings, the father must be allowed to win his appeal on this point, and another hearing must take place. He lost his appeal on all other points.

When we are going through traumatic family breakdown with all the bitterness that can bring, it is difficult for any of us to submit to legal decisions. Who can say whether early intervention outside the court, by specially trained therapists or mediators, might have helped this family. One of the real benefits of such interventions is that everybody feels listened to, as a central part of the process. Arbitration in children matters is now available and should be used more.

It is becoming increasingly hard to balance the rights of the family to privacy with the interests of the public in transparency, particularly in the family courts. The rapid expansion of social media, and its role in influencing behaviour of the public and of the press, is likely to feature in many court cases, not only in family law.

This article was published in Solicitors Journal and The Barrister.

Hazel Wright

Partner, Hunters incorporating May, May & Merrimans.

Related News

Jan 28, 2022
Richard Kershaw discusses sharing carried interest in private equity divorces in Lawyer Monthly
Jan 20, 2022
Henry Hood interviewed by Citywealth
Jan 17, 2022
Family Mediation Week: Nicole Derham discusses qualifying as a family law mediator
Jan 17, 2022
Henry Hood discusses how divorce settlements can be influenced by personal asset management during a marriage in STEP Journal Plus
Dec 30, 2021
Henry Hood comments on the highest post-divorce financial settlement awarded by an English court in New Law Journal
Dec 21, 2021
Henry Hood and Eri Horrocks discuss the consequences of failing to make a payment under a court-ordered divorce settlement in EPrivateClient
Dec 15, 2021
Henry Hood and Anna Roiser examine privacy and transparency in financial proceedings on divorce
Dec 10, 2021
Henry Hood comments on Frederick Barclay faces a possible prison sentence after failing to pay a £50m divorce settlement in The Legal Diary
Dec 03, 2021
Philippa Kum discusses arrangements for children of separated parents over the Christmas holidays
Nov 26, 2021
Henry Hood examines the case of WX v HX [2021] EWHC 241 and divorce settlements in EPrivateClient

© Hunters Law LLP 2022 | Privacy NoticeLegal & Regulatory | Cookies Policy | Complaints Procedure.

Hunters Law LLP is authorised and regulated by the Solicitors Regulation Authority (number 657218)