How a new toolkit could shape the way judges write to children at the centre of proceedings

New guidelines are encouraging judges to write to the children and young people at the centre of family court proceedings, to help them understand the decisions made about their welfare and future.   

The Scottish family law community will have read with interest recent coverage in the legal press regarding Writing to Children – A Toolkit for Judges, a document published by the president of the Family Division in England and Wales, Sir Andrew McFarlane. This is designed to assist judges in England and Wales with when, how and why to write to children in family court proceedings. The guidance has been developed with the Family Justice Young People’s Board. Sir Andrew’s foreword concludes:

“My hope is that, like many things, once judges have used this toolkit and have written to children in a few cases, doing so will rapidly become the norm and no longer a task to be avoided. I would urge all judges to read this guide and to use it from now on in their cases.”

The guidance contains some striking research regarding children’s experiences of family court proceedings and their desire not just to be heard in these cases but to be kept informed about what is happening with court proceedings and important decisions made about their lives.

The new guidance

The guidance explains: “If there is concern that the child will not get an accurate report of what the judge has decided from the adults around them, a letter to the child can be an important opportunity to provide a clear narrative of what has been decided, directly from the person who made the decision. In situations where there is less of a professional network around the child, such as in contentious private law cases, this can be particularly important.”

Although writing a letter to the child at the conclusion and during proceedings is not unheard of, for many judges this will not have been encountered routinely, and it is expected the guidance below will be very much welcomed:

1. Introduce yourself: Explain who you are and your role in the proceedings.
2. Explain the purpose of the letter: Clearly state whether the letter is to explain the final decision or provide an update on the case.
3. Include personal details: Show interest in the child’s life by mentioning their siblings, school, hobbies and other important details.
4. Reflect back what the child has said: Acknowledge the child’s wishes and explain how they were considered in the decision-making process.
5. Explain who else was listened to: Briefly summarise the views of other parties involved, such as parents, social workers and guardians.
6. Communicate your decision: Clearly explain what the decision means for the child, including details about living arrangements, school and family contact.
7. Explain how you came to the decision: Describe the factors that influenced your decision and why it was made.
8. Let the child know you care: Show empathy and acknowledge the difficulties the child may have faced. Reiterate that the child is not to blame for what has happened and that their future happiness matters.

If the toolkit has achieved its purpose it should “enable a child to be told not only what was decided but why the decision was made, and how their wishes and experience informed the decision-making process”. This explanation comes directly from the person best placed to understand that decision-making process – the decision-maker themselves. Time will tell how successful the recommendations are. 

A view from England and Wales

The legal landscape surrounding children’s involvement in court proceedings has evolved significantly over the years. The Children Act, the cornerstone of child welfare legislation in England and Wales, places a strong emphasis on considering the wishes and feelings of children when making decisions that affect them, taking into consideration their age, maturity and understanding. Yet, in a research paper published in 2021 by Nuffield Family Justice Observatory, Children’s Experience of Private Law Proceedings: A Summary of Reviewed Literature, based on a study involving 67,000 children, it was revealed that only 53.9% of children in England and 43.5% in Wales involved in family proceedings had participated within a three-year period from the case start date — meaning that nearly half of the children in the study did not have the opportunity to engage in their own proceedings.

The introduction of Sir Andrew’s groundbreaking guidance sends a message to those involved in family proceedings: we must do better in communicating to achieve sustainable, longer-term outcomes. The document provides a clear framework for judicial communication with children, emphasising the importance of accessible and compassionate language. Enriched by insights from professionals and young people, this toolkit addresses the inconsistencies in child participation within legal proceedings. It marks a significant step towards ensuring that children feel not only heard but also understood in the family court system.

The Scottish perspective

We are very familiar in Scotland with taking the views of children in cases involving decisions regarding their welfare. In recent years views have been taken from younger children, and these views appear to be carrying greater weight with sheriffs and judges. To date, however, the dissemination of these decisions to children has been left to parents/parties in the court action. That leaves an uncertainty as to what children are told, what explanations are provided to them and how they are left feeling about the views they have expressed, and the credence given to them.

In 2017, in the well-known case of Patrick v Patrick [2017] SC GLA 46, Sheriff Anwar wrote a letter to the two eldest children at the centre of what she described as a “particularly bitter and acrimonious dispute” regarding contact. The child psychologist who had given evidence in the case, Dr Khan, had advised the sheriff that her decision would be best communicated by the court to the children. Dr Khan’s reasoning was that it was important for the children, who themselves had entrenched views, to understand that the court had considered all the information and decided what was best for them and why. She was of the view it was important for the children to hear the decision from a neutral third person.

Sheriff Anwar provided a draft of her letter to Dr Khan to ensure it was age appropriate and would not cause them any further distress. Subsequently, the letter was provided to Dr Khan, who agreed to meet with the children to read the letter to them, and to work with them to help them understand the decision and answer any questions. It was left to Dr Khan’s discretion whether the youngest child should also be involved in the meeting.

It is of note that this case is referred to in the England and Wales toolkit as one of the examples of published judgments and letters.

That case aside, it does not appear, from reported cases, that Scottish sheriffs or judges have embraced this approach. The reasons for that could be varied – a reluctance from the bench to unnecessarily involve children in the dispute between their parents, a lack of specialist family sheriffs with skills and experience in this area, pressures on the courts and a lack of time and resources to engage in such an exercise.

Upcoming reforms

That may be about to change. One of the many reforms contained in the Children (Scotland) Act 2020 is a new section 11F, inserted into the Children (Scotland) 1995 Act, entitled ‘Explanation of court decisions to the child’. It provides that the court must ensure that a decision is explained to the child concerned in a way that the child can understand in cases when:

“(a) the court decides whether or not to make an order under section 11(1),

(b) the court decides to vary or discharge an order made under section 11(1),

(c) the court –

• decides to decline to vary or discharge an order made under section 11(1), and
• considers it appropriate to explain that decision to the child concerned.”

Subsection (4) provides: “The court may fulfil its duty under subsection (2) by –

• giving the explanation to the child itself, or
• arranging for it to be given by a child welfare reporter".

The court is not required to comply with subsection (2) if:

“(a) the child would not be capable of understanding an explanation however given,

(b) it is not in the best interests of the child to give an explanation, or

(c) the location of the child is not known.”

The use of the word ‘must’ in subsection (1) ensures that, once this part of the Act is in force, explaining a decision to a child is something the court will have to consider in every section 11 case. It is unknown when these provisions will become operative, but if and when they do it will involve a significant change in practice.

Practical application

Discretion is given as to how the court ensures the decision is explained to the child, and it will take time to see how the court and practitioners see this best operating in practice. Much remains uncertain – will this apply to interim decisions or only final orders? Will there be sufficient resources provided for this additional responsibility? Will the Scottish Legal Aid Board provide an appropriate increase in funding in their cap for child welfare reporters? Will judges be provided with appropriate training in how to tackle this task?

Communicating decisions in writing seems likely to be adopted by many sheriffs, and more likely than them meeting children to do this face to face. This places a further significant responsibility to ensure these decisions are communicated timeously and in a sensitive and age-appropriate manner. The England and Wales toolkit is a helpful resource in providing guidance as to how the Scottish judiciary may wish to approach this task.

Written by Victoria Varty, senior associate at Brodies LLP and Louisa Bestford, senior associate at Hay & Kilner