S1 of the Children Act 1989 indicates that the court must consider:
“the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding) (S1(3a)).
CAFCASS is asked to ascertain these wishes and feelings in most cases. They invariably conclude that what the child wants is what the child says he wants. An alienated child will always say that they do not want to see the ‘target parent’. The judge follows what CAFCASS says.
So, here, we hear the child using the voice of the alienator. We then hear those precise words again from CAFCASS and, finally, the judge. I, for one, found that deeply disturbing.
Result: Child stays with abuser.
Ascertainable vs Expressed Wishes
Firstly, we know from many cases (most notably re H 2014) that we are concerned here with the ascertainable wishes and feelings of the child, not the child’s expressed wishes.
But how do we know if a child means what they are saying?
You might argue that this is a question that can only properly be decided by an expert in child behaviour. You may, however, take the view that any parent knows exactly when their child is not telling the truth. Finally, and at all events, judges know. Judges see these cases all the time, and are well aware, with or without an expert, if the child is expressing his true wishes. Indeed, experts can usurp the role of the judge in this important way.
There is, however, one class of person that seems especially unable to ascertain a child’s true wishes. The CAFCASS officer. Unaccountably, CAFCASS officers seem almost always to accept what a child says as clear evidence of what the child wants. They seem unable, or perhaps they are simply unqualified, to tell the difference. Perhaps this could be changed with more/better training. Only 2% of CAFCASS officers go to CAFCASS’s non-mandatory PA course. Surely such a course could be run by an expert psychologist who could educate CAFCASS officers as to tell-tale signs of a child giving a rehearsed story or coerced evidence.
The Paramountcy Principle
The Act indicates that the child’s welfare shall be the court’s paramount consideration.
So, why do we care what the child says in the first place? Do we ask the opinion of our children about going to school or the dentist? No. Our job, as responsible parents – and the court’s job if it does it properly – is to make kids do stuff they don’t want to do. Do we do this because we are ogres? No. We do it because it is in the child’s best interests to go to school, the dentist and so on.
The paramountcy principle ‘trumps’ all other considerations. In Re L 2019, Lord McFarlane (the most senior family judge in England and Wales) said this:
“There is, therefore, an express duty placed upon a guardian in a case such as this to report on the child’s wishes. However, in my view, that duty must be tempered by the overarching requirement to afford paramount consideration to the child’s welfare.”
This is not new and has been said many times before, by many judges. But it is useful to have it re-stated, recently, by the most senior judge.
So, what is the point in asking the child, if we’re just going to do what is in his best interests regardless? Doesn’t this render the entire idea of Wishes and Feelings reports redundant? It is with that question in mind that I advise all alienated parents to resist Wishes and Feelings reports, and judicial interviews with the child which can be used to extract evidence from the child (although they are not supposed to).
We must understand that when a child says it wants no contact, that has an impact on CAFCASS (usually conclusive) and the judge – again, usually conclusive given that most judges simply do what CAFCASS recommend.
These interviews must be resisted. Apart from anything else, Wishes and Feelings reports are a cowardly abnegation of the duty the State has to safeguard our children’s best interests. We should simply not be asking children what they want. The whole concept is wrong-headed and misconceived. Apart from anything else, contact and residence disputes are primarily a matter for adults. Children should be protected from as much of this as possible.
A child’s wishes and feelings are ‘trumped’ by his best interests. Therefore, it is pointless to try to get them.