Should children’s views be considered in disputed custody hearings?

The case involves a child, known as D, and the dispute between his parents involving custody.

The child’s mother and father are Romanian nationals but formerly lived together in England, where D has lived since he was two months old.

His father, although now returned to his homeland, has a rented house in England where his ex-wife and his child continue to live.

In Feb 2013, the father and mother were granted joint custody of D by Romania’s highest court, the Court of Appeal, but on the grounds that D lived with his father in Romania.

However, the Court of Appeal in this country refused to grant recognition and enforcement of this judgment based on the fact the proceedings had breached a fundamental principle of the procedure of England and Wales – that D, now aged nine, should have been given an opportunity to be heard in the case.

The Supreme Court – comprising Lord Neuberger, Lady Hale, Lord Clarke, Lord Wilson and Lord Hughes – will decide:

• whether there is a fundamental principle of procedure in England and Wales, for the purposes of Article 23(b) of Council Regulation (EC) 2201/2003, that a child must be given an "opportunity to be heard" in every disputed custody case, or that the Court consider giving the child such an opportunity;
• if either such principle exists, whether it was breached in this case.

Two years ago the Government declared its commitment to involve children in any type of family case – including disputes about arrangements following divorce or separation.

The policy was for children from the age of 10 to have access to the judge in order to discuss their feelings and wishes.

The decision reflects the requirements of the UN Convention on the Rights of the Child, which requires the Government to ‘assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child’.

This, according to article 12, “imposes no age limit on the right of the child to express her or his views, and discourages States parties from introducing age limits either in law or in practice which would restrict the child’s right to be heard in all matters affecting her or him….”

To find out more about the family services we provide, please contact Patrick Hart from our family law team today.