This is part of a series of articles we are publishing in TCW designed to challenge one of the most powerful orthodoxies shaping family justice across the Western world, an orthodoxy that is harming children and parents alike. You can read earlier articles here. Here a researcher questions whether there is sufficient expertise available to understand what children are saying.
THE Children and Family Court Advisory and Support Service, known as Cafcass, is an independent public body in England that represents children in family court cases and is meant to advise the courts about the welfare of children and what’s in their best interests. On the face of it, this is an admirable aim.
The belief that children should be central to their own proceedings and have the strongest voice is at the heart of Child Focused Courts, previously known as Pathfinder Courts. This is a new family court model for handling private law disputes involving children. In the past children have rarely been party to their parents’ legal disputes and there was no automatic process for relaying the child’s perspective to the judge. These changes would appear to be a progressive development, with clear benefits in gathering important information earlier, identifying risk earlier, resolving cases more quickly, and reducing the time families spend in court.
However, after spending many years speaking to parents, wider family members and professionals I am becoming increasingly concerned that what is missing is that the system is confusing listening to children’s voices with genuinely understanding children.
At first glance, that may sound like an odd thing to say. Surely the whole purpose of a child-centred system is to listen carefully to children’s wishes and feelings. Surely giving children a stronger voice must be a good thing. But this ignores a key problem which is that children are not just watching family disagreements from the outside: they are caught up in them. What they think and feel is shaped by the people around them. If a child feels scared, pressured, pulled between parents, or too responsible for one parent’s feelings, they may change how they behave just to get through it. They may say or do what feels safest, rather than what truly reflects their needs. These are survival strategies.
Many children do not have the capacity, maturity or freedom to know what is truly in their own best interests. Some may indeed appear articulate and mature on the surface, but they are still children. They rely on adults for emotional security, practical care and a sense of belonging. When there is conflict, children often feel responsible for managing the emotions of the adults around them. They learn what can be said and what cannot. They learn which opinions are rewarded and which carry consequences. Children in these circumstances are living in complicated worlds.
The ‘private law’ system filters the child’s voice to the judge via a third party, usually a family court adviser. By focusing so heavily on amplifying children’s voices, there is a risk of overlooking the skills required to interpret those voices. Listening is not enough. Understanding why a child says something is as important as what they say.
The question Cafcass should be asking itself is not simply whether children’s voices are being heard. The question is whether family court advisers have the training, tools, time and knowledge required to understand the realities that shape what children say in order to convey that understanding to the judge. Some do. Many Cafcass practitioners are deeply committed professionals working under enormous pressure. Recommending what is best for a child is a difficult undertaking. I have met family court advisers whose knowledge, insight and dedication have been genuinely impressive. But that quality is not consistent, and this inconsistency raises uncomfortable questions, especially taking into account that the new courts will require the recruitment of extra family court advisers to cope with this front-loaded system. How will Cafcass ensure that these newly appointed family court advisers have the skills and experience to engage directly with children and in an age-appropriate way?
There has to be a balance between ensuring the child is listened to without them being left to feel responsible for deciding on future family arrangements or worse, left with the guilt of choosing between parents. Do all family court advisers have training in attachment science? Or what other training methods or tools are used in order that they may truly understand the authentic voice of the child? What evidence supports the methods currently being used? How are outcomes measured? Most importantly, how does Cafcass know whether its recommendations are helping children in the long term?
These questions are rarely answered satisfactorily.
The organisation talks frequently about evidence-based practice, yet there appears to be surprisingly little publicly available evidence examining the long-term outcomes of many of its recommendations. There is extensive discussion about policies and process. There is less discussion about whether these work and whether children are doing better years later.
This should concern us all.
In almost every other area of public life, we would expect outcomes to be measured rigorously. If a medical treatment was being administered to thousands of children, we would want to know whether it worked. If an educational intervention was introduced nationally, we would expect ongoing review and evaluation. Yet in family justice life-changing decisions that fundamentally alter children’s relationships and affect their long-term wellbeing are often made without any systematic understanding of what happens next. Funding must be made available for post-court order review and essential research. Over time, this investment could prove cost-effective by reducing the need for later interventions, both in childhood and adulthood, and by helping to prevent harmful behaviour patterns from being passed on across generations.
The consequences of not knowing what happens next can be profound. Recent research has shown significantly elevated levels of self-harm among children involved in family court proceedings. We know that family conflict, emotional pressure and relationship breakdown can have lifelong consequences for mental health. We know that children frequently conceal distress. We know that young people often suppress emotions and protect the adults around them. Yet despite all this knowledge, the system continues to operate as though children’s expressed wishes can be treated as straightforward evidence of their true needs.
Children affected by separation, loyalty conflicts, emotional pressure and family breakdown do not always speak directly about their pain. Sometimes they hide it. Sometimes they deny it. Sometimes they protect the very adults who are causing it. Sometimes they genuinely believe things that are not true because those beliefs have become necessary for survival.
If family justice and in particular Cafcass’s role within that system is to be genuinely child-focused, it must prioritise understanding children rather than simply amplifying their voices. Long-term outcomes for children involved in family court proceedings must be investigated with the aid of longitudinal study models. Outcomes for children in terms of physical and mental health, criminality, academic achievement etc must be examined. Policy must be informed by robust independent research studies, studies providing evidence of what improves the lives of these children. Otherwise, we risk creating a system that hears children’s voices more loudly than ever while understanding them less.
If that happens, it will not be adults who pay the price. It will be the children the system was created to protect in the first place.
