Ascertainable views of the children in court

[singledadhere]

Hi.

My children have been making it clear to me for many years that they are unhappy with the current court-ordered contact arrangement.
They have actually asked me on several occasions if anything can be done, but they feel afraid of telling their mother what they want (equal time with each parent) because of how much it will upset her (due to emotional guilt she places on them regularly.)

I have taken this matter to court a few times now. On each occasion they have dismissed what I've said entirely.

This time, I asked to the children's views to be sought via child-inclusive mediation, something that was recommended by the cafcass officer that wrote the safeguaring report, but a different officer came out against during the FHDRA.

The court have yet again decided not to actually ask the children for their views. The children are currently 12 and 10.

It was my understanding that the courts were supposed to consider (and yes, not always act on) the ascertainable views of the children. How can they do this if children are never given an opportunity to give their views?

Does anyone have any advice on how to proceed? The court makes it clear that the children should not be aware of court proceedings, yet in this instance the children are the ones who asked me to start proceedings. Yet the court simply listens to the mother and not me. In fact, I could be remembering this from a biased point of view, but I'm fairly sure the judge kept interrupting me and stopping me from making my points, while allowing the mother to talk freely and uninterrupted for quite a long time, not actually addressing the question she was asked until the very end.

In the end, the court decided not to direct the parties to engage in child-inclusive mediation, but did schedule a final hearing. This will be pointless without the voices of the children being heard!

 

[Ash]

So you have a final hearing coming up? That is where the opportunity comes to be heard and get your points across. It is highly unusual for them not to speak to a 10 year old and 12 year old. Has your ex made any allegations?

What I read from this, is, a gut feeling from my experiences - that as soon as Cafcass think the Mother might lose sole residency, they kind of try and prevent it and gang up sort of. My ex did some outrageous things and when I had to apply to court again due to her constant outrageous behaviour, and it looked fairly clear residency might be transferred, Cafcass moved in to protect her.

Cafcass vary. But I do strongly believe they are blinkered and pro Mothers. The biggest complaints about them are that they put a Mother's needs and wishes before the childrens welfare. But that's because they are so blinkered they believe that all children are better spending more time with their Mothers - or at least 50/50.

What did you apply for in your application? 50/50? If you can afford it I would recommend getting a good direct access barrister for the final hearing to get what you want. And don't tell your ex you're getting a barrister (or she will too). Might cost 4 to 5k. But no solicitors fees as you can do the rest yourself. One thing they can do as well, is put Cafcass on the stand and question them as to why they didn't interview the children?

Have they said why they're not speaking to the children?

 

[Ash]

Just to add. Remember the children are in the middle of this. Yes they tell us things they wouldn't dare tell their Mother and want us to fix it - but they also fear getting into trouble or making their Mother angry. In a way, if they're not spoken to it helps keep them out of feeling in the middle or any responsibility for the outcome. They have strong loyalties to both parents. Then you can focus on - why shouldn't they spend 50/50 with each parent? No reason at all. It's then decided for them and they don't have to feel responsible for the outcome - the court decided it's in their best interests.

 

[singledadhere]

So you have a final hearing coming up? That is where the opportunity comes to be heard and get your points across. It is highly unusual for them not to speak to a 10 year old and 12 year old. Has your ex made any allegations?

What I read from this, is, a gut feeling from my experiences - that as soon as Cafcass think the Mother might lose sole residency, they kind of try and prevent it and gang up sort of. My ex did some outrageous things and when I had to apply to court again due to her constant outrageous behaviour, and it looked fairly clear residency might be transferred, Cafcass moved in to protect her.

Cafcass vary. But I do strongly believe they are blinkered and pro Mothers. The biggest complaints about them are that they put a Mother's needs and wishes before the childrens welfare. But that's because they are so blinkered they believe that all children are better spending more time with their Mothers - or at least 50/50.

What did you apply for in your application? 50/50? If you can afford it I would recommend getting a good direct access barrister for the final hearing to get what you want. And don't tell your ex you're getting a barrister (or she will too). Might cost 4 to 5k. But no solicitors fees as you can do the rest yourself. One thing they can do as well, is put Cafcass on the stand and question them as to why they didn't interview the children?

Have they said why they're not speaking to the children?

Hi Ash. Thanks for the comments.

Yes, they have gone straight from the FHDRA to a final hearing in June. In the FHDRA I simply asked the court to consider directing Child-inclusive mediation, which had been suggested to me by the CAFCASS officer on the safeguarding call. The head judge (it was 3 lay magistrates) asked me very specific questions (so didn't let me bring up things I wanted to) and frequently interrupted me. He then asked the mother a specific question and let her speak quite freely for quite a long time about things not relevant to the question (although she did finish up by answering the question.)

On the day, it was a different CAFCASS officer, and she contradicted the report and said that child-inclusive mediation wouldn't be useful in this case. She didn't give any reason why.

There are no allegations made by the mother. There was no question of her losing sole residency - the children wouldn't want that and I wouldn't ever suggest it. There is actually already a shared care order in place, but the time isn't equal and it is very lop-sided. The children themselves are the reason I brought the court action - they are deeply unhappy with how the current arrangements are. I know they may say different things to each parent to keep the peace and not feel like they are damaging either of us, but apparently my daughter (12) actually had an argument just this week with her mother and her mother's new partner because she told them that while she didn't know exactly how she wanted the arrangements to be, she did know that she wasn't happy with how they are and wanted some things to change. Her mother them blatantly lied in court and told them both children were very, very happy with the current arrangements.

But yes - I think the children want things to be equal. I think they would prefer not having one parent effectively being able to overrule the other. They want it to feel equal and fair.

I don't think CAFCASS will be at the final hearing?

There is further issue that didn't come up but might have a bearing - but it could work both ways. I have a terminal illness and probably only have a few years left. The children know about it, but not details. However, I'm fairly sure they want to maximise their time with me while I'm here. Yet the courts and the mother seem to take the view that they shouldn't increase time as it might affect them more when the time comes that I'm not around. I can understand this point of view, but I don't agree with it. The children and I are already very, very close and have a wonderful relationship. It is going to be hard for them no matter what. We can't stop that. But my opinion is that when that time comes, knowing that their mother has blocked them from being able to spend more time with me will cause them to hate her. That's my honest gut feel.

I know there is never an easy answer. But I'm shocked that the court hasn't even tried to ask the children if there are any views they wish to put forwards about anything.

 

[Ash]

Lord that is a big thing to have - I am really sorry. And you are doing the right thing. And I completely agree with you - and the children. It will only make them more anxious if they don't see you as much as they like. Your ex is being selfish.

Her mother them blatantly lied in court and told them both children were very, very happy with the current arrangements.

Well she would wouldn't she! Because she's not in agreement or it wouldn't be going to court. Magistrates are rubbish (apologies to any magistrates who might be reading this). Not personal but in family law it really needs an experienced, fully trained Judge - these are childrens lives.

Do you happen to know if you will have a District Judge for the final hearing? Because if not I think you should write to the court and request one. Your description of the first hearing is very common with Magistrates - they do seem to just want to keep the Mother happy. And it seems Cafcass sided with that as well if she was anti the children being involved in mediation. Having said that - once it's at the court stage, mediation with children involved is maybe after the horse has bolted.

I am also shocked they haven't spoken to your children. Did you have anyone representing you at the first hearing? I am guessing not - because I think a barrister might have intervened and insisted that the childrens views were relevant or even asked for a section 7 report (to fully gauge the views of parents and children).

It sounds to me like, because your situation is so emotive, they know the children will say they want to spend more time with you and they are deciding for themselves (Cafcass and the Mother) what is best for them.

The main thing now is your final hearing. This is your opportunity to present evidence, an argument and both you and your ex will be cross examined - mainly on the contents of your statements but generally as well. The point of cross examination is partly so the Judge can hear the responses and help the Judge form opinions (particularly in cases where one parent might be lying - cross examination can cleverly reveal that).

And one very strong argument you will have is that the childrens wishes have not been heard. This may well mean putting Cafcass on the stand to be cross examined (which is a route to winning the case although you may win it anyway).

I would strongly advise, that if you can afford it, you get a good barrister prepared for your final hearing. Sorry, I'm repeating myself. As soon as possible because you need to ensure they are available for the date of your hearing. If you find one you're happy with, and they're not available for that date, you can then send a list of unavailability dates to the court and ask them to reschedule the hearing. But hopefully there is plenty of time to find one available for that date if you do it now. I would ask for a fixed fee for a consultation and a full day final hearing. Costs wise anything less than 4k is most likely money down the drain. You can get ropey barristers as well. You can get very good ones for around 4k for a full day hearing (2k for a half day). That's on a direct access basis so you would be doing any paperwork yourself.

The only real paperwork involved is writing up your statement and sorting out your evidence to attach to the back of your statement (it's referred to as "exhibits". So you might say something in your statement and then (see exhibit a). The idea being that your statement is your evidence and everything you say can be backed up with evidence. Things like emails, text messages, Dr Letters, professional reports, that kind of thing.

It has to be 100% truthful - better to not say anything than say something that isn't 100% accurate or could contradict something else in your statement.

It is worth using a solicitor as a one off, just to help write the statement as it's an important document and they can help decide which points need to be prioritised and which pieces of evidence are best to use.

The other paperwork needed is preparing the "bundle" for the final hearing. That is a formal process where usually the applicant's solicitor puts together a bundle with all the documents that both sides will be using in the hearing - to send to the court. The statements need to be exchanged (at the same time) so neither sees the other one's evidence first (or they could change theirs - it gives them a heads up).

Once statements are exchanged, they form part of the bundle and there is a deadline for the bundle to be submitted to court. The other side often try and sneak in extra documents or evidence before the bundle deadline (after seeing your statement!). So as with the Statement, it can be good to use a solicitor as a one off to help prepare the statement, ensure statements are exchanged to the correct protocol and deal with the bundle and bundle submission for you.

So you could ask a solicitor for a fixed fee for those limited tasks. A lot of people do everything themselves though but I think it's important you win this case. And avoid stress as much as possible by the sound of it.

 

[singledadhere]

Do you happen to know if you will have a District Judge for the final hearing? Because if not I think you should write to the court and request one. Your description of the first hearing is very common with Magistrates - they do seem to just want to keep the Mother happy. And it seems Cafcass sided with that as well if she was anti the children being involved in mediation. Having said that - once it's at the court stage, mediation with children involved is maybe after the horse has bolted.

I don't yet know if it will be a DJ or magistrates, but I am certainly looking at barristers, so in fact with a barrister I almost feel it would be better if it was magistrates, because the barrister would presumably know the law inside out and basically make the magistrates feel inferior and perhaps afraid of causing a (winning) appeal?

I had asked the mother several times if she'd agree to child-inclusive mediation and she said no. Asking the court to consider directing it was basically the only option left. And yes, I'm shocked that the court didn't consider it necessary to even see if the children wanted to share any views.

I am familiar with the court process, the various types of statements and the bundles etc, but thank you for the very thorough response - I'm sure it will come in handy for others reading it too. Your replies have really been informative and useful...

Are cafcass always present at the final hearing? It would be interesting to see a barrister cross examine them as to why their report recommended child inclusive mediation and then on the call they changed their answer...

The respondent has so far also been a LIP. I am guessing that if I get representation, she will too... Shame really, as this is all money that could, and should, have gone to the kids one day...

 

[singledadhere]

Just to add. Remember the children are in the middle of this. Yes they tell us things they wouldn't dare tell their Mother and want us to fix it - but they also fear getting into trouble or making their Mother angry. In a way, if they're not spoken to it helps keep them out of feeling in the middle or any responsibility for the outcome.

And this is spot on - I agree 100%. However, what we are basically saying here is that the mother can emotionally blackmail the children (effectively bully them) and the court expects us to do nothing. This shouldn't be right. It simply shouldn't be the case that either parent makes the children feel so afraid of giving their views that they prefer to sit and suffer in silence...

 

[Ash]

Agree entirely - no they shouldn't be emotionally blackmailed. They will be in the middle somewhat until things are resolved, but they should have a voice.

I don't yet know if it will be a DJ or magistrates, but I am certainly looking at barristers, so in fact with a barrister I almost feel it would be better if it was magistrates, because the barrister would presumably know the law inside out and basically make the magistrates feel inferior and perhaps afraid of causing a (winning) appeal?

Just my opinion but I think it's more the other way actually. An experienced Barrister dealing with a lesser qualified Magistrate can struggle to get them to co-operate. An experienced Barrister dealing with Judge knows where he is - what he can say and do and how he can persuade the Judge with skeleton arguments and caselaw - because they are both fully trained and know how things work.

Are cafcass always present at the final hearing? It would be interesting to see a barrister cross examine them as to why their report recommended child inclusive mediation and then on the call they changed their answer...

Cafcass aren't usually at a final hearing. It depends what they have said after the first hearing, but usually once it's going to a final hearing Cafcass say they will no longer be involved (they are only there to establish if there are any welfare issues and recommend what order should be made - which a Judge 99% ish usually follows). If they were to be cross examined you or your barrister would need to ask the Cafcass officer to be called for cross examination at the final hearing.

This is something some Dads have done. One in particular, who actually achieved a residence order as an LIP by undermining Cafcass report and showing it was flawed and biased.

Shame really, as this is all money that could, and should, have gone to the kids one day...

My thoughts exactly when I went through this. On the other hand it is an investment in their childhood and protecting them. And whatever the outcome, at least they know you tried and didn't just roll over.

Apologies for all the detail about bundles - you already have an order so of course you know about that!

 

[singledadhere]

The cafcass safeguarding report actually suggested child-inclusive mediation. But the officer in court then said it wouldn't be helpful in this case. They didn't expand on why or give any reasons. It's very frustrating, especially when the children are the ones constantly telling me they want to have a say in matters that affect their lives!

 

[Ash]

Yes there is a lack of continuity with Cafcass sometimes. I am not sure that is something the court would order though - what they really want is parents to agree. Hence they sometimes order parents to go to mediation. If they don't agree then it goes to a contested hearing (final hearing). There are pros and cons to the childrens wishes not being heard. On the one hand you feel their voice hasn't been heard when they want more time with you. On the other hand it means your ex can't claim they want something else! Because there is no evidence to support either of you - via a report from talking to the children. Decisions will be made on the childrens best interests, regardless of their wishes - sometimes they decide that what's in the childrens interests is not the same as their wishes.

So I think your focus now maybe needs to be on winning the contested hearing.

 

[singledadhere]

The thing is that the mother is actively fighting against their wishes being heard, because she knows exactly what their wishes are. My daughter told me she had an argument with her mother and her mother's partner just 3 days before the hearing because my daughter told them she doesn't like the current arrangement. For the mother to then lie in court saying both children are happy is just showing that she doesn't care at all about their views.

Yes - sometimes what the children want isn't necessarily in their best interests. But this isn't about eating pizza for dinner every night. This is about how they want to spend their time with the people they love.

The problem is, my ex doesn't need to claim that they want something else. She doesn't have to claim anything. The court just wants to keep things as they are, no matter what.

The main issue is that the children are frustrated and upset, first at not having a say in their own lives, but also that their mother is lying to the courts about their feelings. They are getting angry with her now. This can't be in anyone's best interests except their controlling mother's.

 

[Ash]

It's a shame your ex won't compromise a bit so the kids can see you've reached some kind of agreement. If it's now listed for a final hearing I think you're past the point of them speaking to the children - and may just have to accept that. But it is a point you can bring up at the final hearing and have the Cafcass officer cross examined on this (using the earlier Cafcass letter as evidence as well). And your barrister can pin down your ex as to why she doesn't want the children spoken to.

You have to be careful though as courts know that one or other parent can influence the children and coach them to say what the parent wants - and if they suspect this (on either side) they could decide there is no point on hearing the children's views. I am not for a moment suggesting you are coaching them, just that the court might suspect both parents might try to coach them.

I'm sorry you haven't managed to increase the time previously, and yes a Barrister could be a big help with that.

Can I ask what the current schedule is now and what you're asking for? The fact that it is already a shared care order is a bonus as it makes you on an equal footing and it's really just about the amount of time in each home.

 

[Ash]

What you may find, as part of your final hearing, is that the Judge asks to speak to the children himself to explain any decisions he makes - whatever those decisions are. This does happen sometimes in emotive cases like yours. But I think you just need to get organised for the final hearing now really. Find a barrister so you get the one you want available for that date. Your wording for your final statement will be very important - and I think it should be expressed at how the children would feel if they had not been able to spend enough time with you as and when you were no longer there.

There was a case not so long ago which was kind of in reverse. It was the Mother who had a terminal illness and she was preventing time with the Father. It took two years for the Father to finally get an order. The children weren't spoken to then either - partly because they were quite young and partly because of the emotive situation. The Mother was clearly trying to ensure the children didn't end up living with the Father after she died and although she was not capable of looking after them (in hospital a lot) - her parents were doing so and taking them to visit her most days.

The final order did give the Father just under 50/50 I believe and he agreed that he would make adjustments so the children could visit the Mother at various times, and be flexible. Obviously the Mother didn't want him bringing them to see her in hospital so his flexibility was that under various circumstances he would allow phone contact with the Mother and drop them back at the grandparents for an hour or two, or exchange dates. But only if the situation became serious. He was aware they were worried about being away from their Mother.

What you need is your ex being more flexible. Which she isn't. You could have specific clauses written into an order - not just the regular time, but to include things like - if you were hospitalised, the schedule would remain the same with your family caring for the children and bringing them to see you. And another clause that there would be as much flexibility as possible to exchange dates and times, in the event that you became seriously unwell.

And phone contact should be allowed.

The above case though shows, that even with a terminal illness, they won't favour one parent over the other. But it sounds like their time with you is a bit minimal right now.

 

[singledadhere]

It's a shame your ex won't compromise a bit so the kids can see you've reached some kind of agreement. If it's now listed for a final hearing I think you're past the point of them speaking to the children - and may just have to accept that. But it is a point you can bring up at the final hearing and have the Cafcass officer cross examined on this (using the earlier Cafcass letter as evidence as well). And your barrister can pin down your ex as to why she doesn't want the children spoken to.

You have to be careful though as courts know that one or other parent can influence the children and coach them to say what the parent wants - and if they suspect this (on either side) they could decide there is no point on hearing the children's views. I am not for a moment suggesting you are coaching them, just that the court might suspect both parents might try to coach them.

I'm sorry you haven't managed to increase the time previously, and yes a Barrister could be a big help with that.

Can I ask what the current schedule is now and what you're asking for? The fact that it is already a shared care order is a bonus as it makes you on an equal footing and it's really just about the amount of time in each home.

Yes, I agree we are past the point of the children having a chance to put their own views forward. Our son has actually asked if he can write to the court. So far I've suggested it is a bad idea as I think the court would just assume I've put him up to it (I haven't - I've tried to do the opposite.)

I am looking at options for barristers now and will definitely use one for the final hearing. At least then we might have a chance to actually say what we want to say. In the previous hearing they wouldn't really let me speak at all, and then let the mother go off on whatever tangent she wanted for quite a long time.

Honestly, the bias in the actual court proceedings is incredible.

 

[Ash]

I just edited my post above to add a bit more Which may or may not help. Posted at the same time. Sending a letter to the Judge. Hmm. It is something that Mothers encourage children to do sometimes. I think you should get some legal advice on that one. If your son wants to do this, I don't see why he shouldn't. But take advice.

But I do think you need to push for a District Judge for the final hearing as it's an important hearing. And a District Judge has a lot more power and a lot more experience. The court papers should say if the case is to be heard by a district Judge or not.

 

[Ash]

I agree that it's shocking that the 12 year old's wishes weren't heard, at least. Mention that to a barrister when you get one and say you want Cafcass cross examined at final hearing. They will know what to do to get the Cafcass Officer there. Not sure if it requires a subpoena or not.

I had a similar experience at a first hearing with a Cafcass officer just believing everything the Mother said - and magistrates will do what Cafcass tell them. Judges will as well sometimes. Which is why you need to cross examine the Cafcass Officer.

 

[singledadhere]

The children have decent contact with me already. But it's lop-sided.

But to be honest, I don't really care about how many nights or days or whatever things are. I care that the children feel that they've spend a lot more time with their mother than with me, and it makes them feel sad.

They recently said that if they can't have equal time with each of us, they'd rather flip the contact (so spend the time they'd usually spend with their mother with me, and vice-versa) than leave it as it is, because they'd feel that would balance out the additional time they've spent with her over the years. I didn't expect this at all, if I'm honest. It was a complete surprise to hear.

But nonetheless, this is how strongly they feel about it.

I think I will let the children write letters if they want to, but will let the barrister decide whether to put them to the court or not. If the children decide they don't really want to write them, that's up to them. I never pressure these things. I wouldn't whatever, but I haven't needed to. They are quite clear about their views.

The problem is that the children are asking me *why* the court won't hear their views. I have to tell them something, and they know that their mother is against it. The know she is lying in court, because they've told her they want change. That wouldn't be happening if they didn't really want it - they'd be keeping quiet for an easier life. They are now actually arguing with her about it.

It's a really, really frustrating situation.

I'm almost certain that the only reason the mother opposes it is for the child maintenance.

 

[Ash]

I'm almost certain that the only reason the mother opposes it is for the child maintenance.

That is a point. And also sometimes why Cafcass back the Mother and don't want to change things. Situations vary - in my case, my ex doesn't actually need the CM. Her H is earning a lot more than me! And she has a full time job. She still takes it though and wouldn't give it up.

I have an informal arrangement over that. We had an agreed amount for years when my son was young. She made a big thing about wanting more - so I had a formal assessment to show her she would get a lot less if she went via the CMS! And the amount was left the same as an informal agreement.

So do you think she would agree to more time if you agreed not to reduce CM? If that is affordable. Even if it was 50/50. Or just reduce it slightly if it was 50/50. Obviously depends on your financial circumstances and how much you usually pay.

Or just ignore all that and go for it. It also depends on what you've applied for as to what you are likely to get. If you applied for 50/50 you won't get more than that. If you applied for more time with you than with her, you're more likely to get 50/50.

I would have thought one week on one week off and half the holidays would be a good schedule. Or 2-2-5-5. That works well for most people as the kids are never away for longer than 5 days in term time and you get a good long week-end rolling into the midweek schedule.

That would be say Wed and Thurs night with you each week plus every other week-end from Friday through to Monday am school drop off (3 nights).

So one week it would be: Mon Tues nights with ex, Wed Thurs nights with you. Then the week-end with ex from Friday through to Wednesday.
The following week it would be Wed after school through to Monday am. and then repeat.

So every week kids have the same two consecutive midweek overnights with both of you and every other week-end with both of you (the week-end tagged onto the midweek overnights).

You didn't actually say what you've applied for. The problem with applying for "a change of residency" is they don't like doing that unless there are serious welfare issues. But you should be able to have increased time, I agree.

You didn't actually say what you'd applied for.

 

[proud_dad]

In my case, Judge at fhdra ordered ascertainable wishes and feelings report in section 7 for a specific issues. Cafcass interviewed kids and had them write to the final hearing judge.

 

[Ash]

Just wondering if the kids have been interviewed before in previous applications? Maybe that's why they're not doing it this time?