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Ascertaining Children’s Wishes and Feelings

Paul Bishop, an independent social worker and formerly a Children’s Guardian, draws on 20 years’ experience of interviewing children involved in family proceedings.

Paul Bishop, Independent Social Worker

Paul Bishop, Independent Social Worker

The announcement by Simon Hughes MP, the Minister of State for Justice and Civil Liberties, at the Family Justice Young People's Board 'Voice of the Child' conference, that children would be given a greater voice in family court proceedings affecting them prompted me to give some thought to the vexed question of ascertaining the wishes and feelings of children. It raises a number of issues which I propose to discuss by drawing on some of the comments children have made to me over the past twenty years, when I have met them as a Family Court Social Worker (Children's Guardian and Family Court Advisor) to ascertain their wishes and feelings. In that role I have talked to well over a thousand children.

Simon Hughes talked about giving children aged over ten access to the judge, but otherwise gave very little detail about how that would work. On the whole that is something I applaud. Detailed prescriptive plans tend to lead to a straitjacket approach, which often produces statistics that can be used in Parliament but can achieve little positive benefit otherwise, and least of all for the children who are the supposed beneficiaries. Indeed there have been occasions when social workers have been under very strong pressure to ascertain children's wishes and feelings. A child's right to express their wishes and feelings seemed to have changed to an obligation to do so.

How many children in family proceedings are aged over 10?
Since Simon Hughes's target group are children aged ten or over then the changes will not affect most children who are the subject of family court proceedings. Research undertaken by the Ministry of Justice to provide evidence for the Family Justice Review in 2009 involved analysis of a sample of 376 public and 402 private family law cases closed in 2009. Almost two thirds of the children involved in the public law cases (64%) were aged four or under at the start of the case, only 14% were aged over ten. Of the private law sample 22% were aged over ten. Joan Hunt and Alison Macleod's research in 2008 Outcomes of applications to court for contact orders after parental separation or divorce had a sample with a mean age of 4.5 years. More recently Harding & Newman's research in 2013 had a sample of 183 cases. In 119 of these the children were all aged under 5 years.

Is the age of the child the key criterion?
The age at which children are able to express a view is not conclusively defined and nor should it be. Children of the same age vary considerably in their ability to formulate clear views about their care arrangements. This will be affected by their family situation and their relationship with their parents as well as their individual resilience. An initial and continuing assessment of these aspects of a child is vital in helping her/him to express their views, if they want to, and ensuring that the process is not damaging to them.

There has been a widespread view that one should not seek to ascertain the wishes and feelings of children under seven or eight. However in R v Barker [2010] EWCA Crim 4 a conviction for rape was upheld by the Court of Appeal based on the evidence of a child aged three at interview (four at trial) describing events which had occurred when she was aged two. Ruth Marchant (Co-Director of Triangle which works with children, in particular those giving evidence to courts) says:

"If properly interviewed, children as young as two can give reliable and accurate evidence about their experiences, and with careful planning and developmentally appropriate questioning this evidence can be tested at trial. This does not mean that every very young child who is a potential witness should be interviewed; all of the usual guidance applies in terms of weighing up the interests of justice and the interests of the child" (Child Abuse Review 2013).

My own experience leads me to conclude that it is possible to seek the wishes and feelings of children from a very young age. Children unable to speak can still give a very clear indication how they feel about a significant adult. One example of this is a one year old called Tom (not his real name - nor are those of the other children referred to in this article) I observed when he had a contact visit with his father. I arrived a few minutes before Tom's father. Tom was busy playing with his toys and he briefly glanced at me and smiled before returning to his toys. When the father arrived a big, broad smile came over Tom's face and he crawled excitedly towards him.

I have found that young children can often have a very clear understanding of their situation and the resolution they seek. An example of this is Jane aged four. She lived with her mother and stepfather and there was a dispute about whether she should have contact with her maternal grandmother. When I met her she said, "I do like seeing Grandma but every time I do Grandma and Mummy have a great big argument, so perhaps it's better if I don't see her."

Interpreting the child's views
Mr Hughes is concerned about other people interpreting children's views and not transmitting their actual words. I believe this concern is valid. It has always been my practice to check with a child what they have said to me to make sure I am accurately reflecting their view and to put what the child actually says in my report to the court. I believe it is important for a court to hear exactly what a child is saying in their own words. However I believe it is also important for there to be some analysis of what a child is saying and to explain the context in which they say it. The difficulty with younger children in particular is that they will not be able to understand all the factors to be taken into consideration when making decisions about them which may well leave them feeling they have not been listened to when they are removed from a parent who they feel has been caring for them well. I suspect I remain to this day very unpopular with three young children who were removed from a very good mother and placed with their father. Until that time he had divided his time between driving his lorry by day and sitting in the pub by night. The exception was Saturday afternoons when his children had contact with him (which they clearly enjoyed) but they had to be back to their mother well in time for him to get to the pub. One cannot explain to children aged three to six that while Mum's new boyfriend is great fun to be with, particularly when engaged in play fights with them, the fact that he has a record for sexually abusing children precludes them from living with him.

Whose wishes and feelings is the child expressing?
There is often concern about whether children's 'true feelings' have been obtained. It is usually very easy to tell if a younger child has been given a 'script'. When one first meets a five year old in an office waiting room and the response to "Hello, Mandy" is "Daddy number two is not very nice to me", it is difficult not to conclude that her mother has told her what to say. It is likely that Mandy has done precisely as she has been told: "When you see the man, tell him Daddy number two is not very nice to you" – so she does. Another example was John, aged four, who, as I showed him out of the building with his mother, proudly said, "I told the man I didn't want to see Dad," clearly expecting praise from his mother. The unspoken 'Shut-up' was almost palpable. Other people are more direct, such as a paternal Grandmother who, as I left her home with her grandchildren, said, "Now off you go with this man, my luvvers, and tell him you want to live with your father."

Other children seem to want to look after their parents and be fair to them, sometimes at the expense of their own needs. Two examples of this are Sarah, a seven year old girl, who earnestly told me that she should live with her father while her sister should live with her mother "so that neither parent is without a child"; and David, a ten year old boy who devised an excruciatingly complicated timetable for himself which ensured that he was equally shared between his parents. Where his own needs fitted into this appeared to have been given no thought at all. Similarly many children in care have a wish to return to a parent despite being abused or neglected by them. Often the child / parent roles are reversed and children want to be with their parents to make sure they are alright, or to look after them.

On other occasions children have expressed a view which is the exact opposite of what they want. An example of this is Simon, aged seven, with whom I had been involved in the past. He clearly had a very good relationship with his father and contact visits were a very positive experience for him. I next saw him about nine months later because he had suddenly said he did not want to see his father. There did not seem to be any reason for this. I arranged to observe Simon with his father at a family room at the Cafcass office. The family room had a one-way mirror which I often used for observing younger children, having found they often related differently when alone with a parent. Simon was brought to the office by his maternal grandmother. She took him down the corridor to the family room. He protested vehemently all the way, saying, "I don't want to see him." We left Simon in the family room with his father and I went to observe the visit through the one way mirror. Simon looked around the room to make sure he was alone with his father. He then said, "Hello, Dad" with a big smile on his face. He went on to have as good a contact visit as I had observed in the past.

On the other hand, I can recall a similar situation with Jack, a four year old child, having a very good observed contact visit with his father, having previously refused contact. It subsequently transpired that he had been seriously sexually abused by his father. Jack's father was being very child-centred in the observed contact visit and Jack seems to have decided to enjoy this experience of him and forget the negative experience.

A very popular arrangement for parents is that the children live equally with both their parents spending one week in their mother's home and then one week in their father's home. Children often say this is what they want too. Carol Smart (of the Cava research programme at the University of Leeds) asked children (when they were adults) what this felt like. They said they "looked forward to a time when they could stop living like nomads." When parent's make this suggestion I sometimes suggest that the children live in the same house and the parent's move in an out, each spending a week living with their children. This does not appeal to them, no doubt for the same reasons is does not appeal to children.

There can be the opposite problem. For example, Stuart liked his Mum and his Dad and Mum's new boyfriend, so he told me the ideal arrangement for him would be to live with all three of them. I suspect that would not make a happy household.

When children express less than clear views
Often children do not give clear views and sometimes there is the suggestion that a psychologist should be enlisted to find out what their true feelings are. I recall a psychologist saying to me, "I can't read minds any more than anyone else can".

In my experience there are three main reasons for children not giving clear views. The first is, simply, that they do not have a clear view. They are in difficult and uncharted waters and their confused views simply reflect the confused state of their mind. The second, particularly for young children, is that they expect the significant adults to make decisions. I have spoken to a number of young children who find it hard to understand that they can have a view of the world that differs from the view of their parents, or main carer. In particular I recall Peter, afour year old boy, who told me, "Mummy says I cannot see Daddy". I asked him what he would like to do. He looked very bewildered and said, "Mummy says I can't see him". Thirdly, children do not want to upset one of their parents, so they either tell each parent that they agree with them (increasing conflict between parents exponentially) or simply sit on the fence and say they don't know what they want. What is the solution? In my view it is to remember that children have a right to express a view and not an obligation to do so.

The right not to express a view
Delivering the message that a right is something that one can choose to exercise or not is an important part of the initial meeting I always have with a child, usually in the company of their main carer. I make it clear that a child can tell me what they want if they want to, and if they don't want to answer a particular question, or decide they don't want to talk to me at all, that is fine. This does not make for impressive statistics to read out in the House of Commons but it does respect children's rights, in my view. This is an important principle to bear in mind throughout the process of seeking to ascertain children's wishes and feelings. I recall talking to Mary  aged seven. Each time I tried to steer the conversation towards her parents, she rapidly changed the subject to how funny it had been when granny's washing machine had flooded the kitchen floor. On the third occasion this happened, I accepted that she clearly did not want to discuss her parents, who were going through one of the most bitter divorces I can recall. There is a fine balance between gently pushing a child to give them the confidence to express a view and forcing them where they don't want to go. It is important to be sensitive to messages from children, which can often be subtle.

Developing a rapport with the child
I have found this initial meeting is vital to begin to develop a working relationship with a child, to explain the process and help them to feel as relaxed as possible and as safe as possible. Children are often worried about talking to a stranger about their family. This was powerfully brought home to me by a comment from Susan, an eight year old girl. I met her and her sister at their home. They were both clearly very nervous. They had their arms firmly by their sides and were almost 'standing to attention' as they sat. They began to relax as I talked to them, and made a few jokes. At the end the Susan said, "We were really worried about seeing you, but actually you're nice".

The difficulty with helping children to feel safe is that their parents will learn what they say and, of course, this needs to be made clear to the child. Often parents embroiled in an acrimonious dispute are not willing to simply accept their child has a view they do not like. They will castigate their son or daughter for saying the wrong things. I recall Michael, a four year old, who assured his father that he had told me that he wanted to live with him. In fact he had remained almost silent, while I talked to his older brother, dividing his attention between the smoothie he was eating and a toy sword he had just been given. The father demanded that he be allowed to bring the boy to see a Cafcass manager where, with the father present, the boy would say what he wanted. The manager rightly refused to agree to this. The prospect of greater involvement of children in court proceedings, together with an increase in litigants in person, raises the horrifying prospect of children being cross-examined in court by their acrimonious parents.

Is it always appropriate to seek the child's views?
Simon Hughes is clear that all children should be given the chance to express a view. However, in a very small number of cases there are good reasons not to do so. One example when this was not a good idea concerned Gemma, aged eleven years. She had not seen her father since she was a one year old and believed her step-father was her birth father. The girl's father was addicted to mood altering drugs but his prognosis was looking good. The advice from a psychiatrist was that no decision should be taken for a year to see if he continued not to use drugs. The father stayed clean and was introduced to his daughter.  Her wishes were then sought about ongoing contact. Nevertheless it seemed completely wrong to me that she should be introduced to her father when the chances of him maintaining a relationship with her were very uncertain, although – whatever the outcome – she needed to know that her step-father was not her father. Another example is Jill, a four year old girl who passionately wanted to see her father. I was told by her mother that the girl would sit in the window when her father was due to see her so that she could spot him as soon as he came. Sadly he rarely came because he was an alcoholic. The girl often sat in the window all day, even having her meals there. It seemed cruel to ask her how she felt about seeing her father when the chances of her seeing him were remote, and it was obvious how she felt.

Keep it simple
Over the years I have found it important to keep the tools I use to support a child as simple as possible and the questions I ask simple and straightforward. It is important to be sure that the answer one gets is to the question one thought one had asked. I have found a very powerful tool for children up to about seven is to ask them to draw a picture of a house, then ask them to imagine that it is their house and then draw a picture of the people they want to live in the house with them. This gives a good opportunity to explore with a child their feelings about the significant people in their lives. It can also give a very graphic picture of how a child perceives their family structure. I recall Louise, aged five, who firmly put her mother, siblings and best friends inside the house, with her father some distance away outside. Amanda, aged six, drew a picture of herself and her recently born brother. She saw no need for any adults in her house, and given her experience of adults I could hardly blame her. The child's mother had largely abrogated her responsibility for her baby son and the six year old took a major responsibility for his care. If the baby cried at night it was his sister who got up to care for him. She told me that she was very worried that she might drop him and his head would crack open (he was a very large baby).

Two of my favourite pictures were drawn by four year old twins, Mary and Jane. Both put only themselves and their sister in their house, apparently also seeing no need for adults (despite having two good parents). An important event in their lives was that they would shortly be sleeping in bunk beds. Mary told me that she would be sleeping in the bottom bunk because there would be spiders on the ceiling above the top bunk. Jane made no comment about that but she drew a picture of the bunk beds inside her house. On the top bunk she drew a small figure, which she pointed to and said "That's Mary".