Dear Sam… A Letter to a Young Person

In Family Law cases, the Court’s priority must be the welfare of any child involved, as a matter of law. In addition, where a child is 12 years old, or presumed to have sufficient capacity to form a view, the child must have the opportunity to express their views. Those views, where expressed, should then be considered in any decision-making process.

In a recent decision in the English High Court, A (Letter to a Young Person), Re (Rev 1) [2017] EWFC 48, Mr Justice Peter Jackson wrote his decision in the form of a letter to the child involved. In the decision, a father is refused his request for permission to relocate with his 14 year old son to Scandinavia.

During the case itself, the teenager wished to give evidence at the hearing. Sam (not his real name) and his father wanted this, but his mother, step-father and a family court welfare (CAFCASS) officer did not. Sam’s views had to be provided somehow, the question before the court was how his evidence should be taken. The Judge decided to take Sam’s evidence during the hearing. Sam’s evidence was taken in the form of answers to 10 questions, 5 provided by the mother and 5 provided by the father. The Judge, not the solicitors, asked the questions. Sam’s evidence lasted just half an hour and he was not directly questioned by either of the parent’s lawyers. He was afforded the opportunity for his voice to be hear, first hand by his parents, without being exposed to cross-examination by solicitors and hours of questioning.

Once he had made his decision, Mr Justice Peter Jackson wrote directly to Sam explaining his decision and his reasons for it. He writes:

“This case is about you and your future, so I am writing this letter as a way of giving my decision to you and your parents.”

In coming to his decision, the Judge did not agree with Sam’s expressed views. Mr Justice Peter Jackson is nevertheless careful to acknowledge Sam’s views and contribution to the process:

“I was impressed with the way you gave evidence. You are of an age where your views carry a lot of weight with me.”

At the same time, the Judge is at times quite unforgiving in his portrayal of the father and the influence he saw him to have over Sam’s evidence. Mr Justice Peter Jackson writes:

“My view is that you brought the proceedings mainly as a way of showing your dad how much you love him… I don’t think you realise the influence that your father has over you.”

At 14, Sam was entitled to have his views heard if he chose to express them. His views were acknowledged and respected by the Judge, but ultimately, the Judge disagreed with Sam on what decision was best for him:

“Sam, I realise that this order is not the one that you said you wanted me to make, but I am confident that it is the right order for you in the long run.”

This case demonstrates a novel way of ensuring not only that a child’s voice is heard and considered, but also that the child involved has the opportunity to understand the reasoning behind a Court’s decision.

In another recent decision, by Mr Justice Peter Jackson, Lancashire County Council v M & Ors (Rev 1)[2016] EWFC 9,  the Judge chose to write his decision in straightforward language to allow the mother and children to follow and understand it.

The Courts make daily decisions which have a direct impact on the children involved. Orders regulating where a child lives or how often they see a parent or family member inevitably shape their childhood relationships with parents and other family members. Even where a child is not capable of understanding or engaging in proceedings at the time they are concluded, it is surely of fundamental importance that that any individual involved can look back at court papers and decisions and be able to clearly understand the Court’s decision-making process. Using simplified language and avoiding legal jargon is not just a sentimental gesture to a child caught up in a relocation argument, but rather represents an approach which protects and upholds the welfare of the child, their right to be heard and their access to justice.

The experienced Drummond Miller Family Law Team is able to advise on issues regarding contact and residence of children, as well as divorce and separation issues.  If you would like further information and advice, please contact our experienced solicitors in Edinburgh, Dalkeith, Musselburgh or Bathgate.