Time for the child's voice to be heard, new guidance to judges

A child’s wishes and feelings has always formed part of the court’s consideration when making a decision in relation to a child. However recent guidance from the President of the Family Division, Sir Andrew McFarlane has offered judges a “toolkit” to assist them in writing to children 

Its always a very difficult decision to involve a child in proceedings. For older children, the courts are more likely to consider their wishes and feelings when making any order, but ultimately they have to have regard first and foremost for the child’s welfare and any potential for risk of harm to that child.

The guidance was produced on 26th February 2026, the new toolkit made it clear to judges that they should be encouraged to write to children as research has shown that the more children feel they have been listened to, the more likely they are likely to be at ease with the decision made by the court. 

Its also a good opportunity for judges to set out in detail why they have made the decision they have as its felt if the child can understand why a decision has been made, even if its not something they want, they may be more accepting of it if the judge takes the time to include and address the child appropriately 

As a practitioner, with older children I am also seeing cases which are in court being stood down to allow for child inclusive mediation to take place. This does not mean the child will be placed in the room with the parents and a mediator and asked to “choose” who they want to live with / spend time with. Instead it allows the opportunity for the child to speak privately with a mediator and set out what they are seeking and why. Then the mediator can communicate this in an unbiased way to the parents with a hope that this will then facilitate discussions for the parents to find suitable solutions.

In many cases involving older children the courts remain reluctant to intervene and instead will state that they can ultimately vote with their feet, unless there is evidence of significant risk of harm to a child.

Its encouraging to see the courts take positive steps to ensure the child’s voice is heard and acted upon

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