Vardags Family Law Essay competition 2024/25 | Lyubka Vesselinov

The Standing of Children in Divorce Proceedings

Author: Lyubka Vesselinov - University of Law

The foundational principle of child law is the paramountcy of the child’s welfare, defined in J and Another v C and Others (1), and now contained in s 1 of the Children Act 1989. The statute gives sufficient weight to the children’s wishes and feelings, as well as their physical needs. This status quo emerged as a by-product of the struggle to balance the legal position of the two parents. In Lamont’s words (2022) (2), “the paramountcy of the child’s welfare remains the golden thread that runs through court decision-making in children cases”.

In spite of the noble legal principle, in practice the family courts struggle and often fail to adequately protect children’s rights, being overly focused on the rights of the parents. While the matter of the children’s upbringing and meeting their physical needs is vital, so are their emotional and psychological needs which tend to be complex and intricate. While the courts recognise this in general, their overly rigid and formulaic judicial approach tends to view children as non-players rather than active participants in the divorce process. As a result, children are often hit the hardest by the courts’ decisions which rely on practicalities and adult perspectives.

To that effect, Gilmore and Glennon (3) reasonably advocate for family law reforms that would place greater emphasis on children’s experiences and viewpoints, with the goal of creating more child-centred and inclusive processes. That doesn’t mean burdening the children with the decision making; only that a fuller picture is painted by including their input. It is important to ensure that children are not just subjects of the law but active partakers whose needs, wishes, and emotional well-being must be given greater consideration in private family law disputes. Similarly, in Lamont’s view, while the law focuses on the "best interests" of the child, this standard can be too vague and sometimes result in decisions that don’t reflect the child’s emotional or psychological needs. This is because both parents and courts focus on what the adults assume to be important. Although they may have difficulties articulating it, children do have valuable insights into their own circumstances but their opinions are often overlooked in legal proceedings. Perhaps the time has come to give children a greater voice in divorce trials to allow the better fulfilment of their unique individual needs.

There is no doubt that in a divorce children are the most vulnerable and have the most to lose, yet – it bears repeating – they are the least listened to. Many an academic have admitted concerns that children’s opinions are overlooked and/or underestimated in legal proceedings but not many viable solutions have been suggested. We are facing a situation where the law is, in theory, genuinely framed to cater to the child’s “best interests” while, in practice, it fails to properly protect these interests.

While it may be said that the law as it is works sufficiently well with respect to divorcing parents who approach the proceedings with common sense and care for their children, it arguably falls short with respect to families damaged due to abuse, whether mental or physical. Divorce proceedings in cases of dysfunctional or abuse-riddled households present unique and deeply concerning challenges for children. Such children are often traumatised and experience heightened emotional distress, confusion, and/or fear, especially if they were directly exposed to the conflict, manipulation, or violence. In such cases it is easy to imagine children being used as pawns in parental disputes, or as means to an end, even as objects of coercive control. They can be systematically alienated from one parent to meet the needs of the other without regards to their own needs. During trial, protective parents may struggle to provide evidence of abuse, while abusers may attempt to portray themselves as victims. Undoubtedly, the primary goal of the law is to act in the child’s best interests, but when abuse is involved, proving and addressing it can be a complex problem and leave children vulnerable to continued exposure to harm, either through forced visitation or shared custody arrangements that fail to account for prior abusive history. With this in mind, it is perhaps warranted that the court should pay close attention to the children’s views and accounts and exercise discretion as to possible future arrangements between the parents.

Additionally, children from severely dysfunctional and/or abusive households often carry long-term psychological and behavioural scars that make their adjustment to post-divorce life difficult. Such children might suffer from various levels of anxiety, depression, or even post-traumatic stress disorder. The courts may not always be equipped to recognise the trauma in children from such families, and would often prioritise joint upbringing over safety. Understandably, such an arrangement is practical and easier to arrive at. However, if an abusive parent retains sufficient access to the child, the cycle of control will likely persist, affecting further the child’s emotional well-being and development. Support systems, including therapy, stable routines, and safe environments are critical to helping these children heal. It is of principal importance to maintain adequate legal safeguards and trauma-informed approaches, as the divorce process itself can become another source of distress, rather than a step toward a healthier future.

Each case is unique, of course, but it is likely because of the increased complexity and difficulty when abuse is involved that the “child’s best interests” standard begins to look vague and open to interpretation, as Lowe et al (2021) point out (4). Such vagueness is prone to lead to inconsistency and, often, to inadequate outcomes for the children involved as it tends to focus on the rights of the parents much more than on the specific needs of the children. The children’s perspective is rarely considered and children are hardly ever heard at all during proceedings. While children cannot be expected to make decisions in such proceedings, they nevertheless deserve to express their own preferences (for example, in witness testimony) rather than being treated as “passive objects of the law”, especially in light of the effect such decisions will have on their life (5).

It is acknowledged that judges face a significant difficulty in making custody decisions, particularly when they lack sufficient psychological or expert contribution regarding the emotional impact of divorce on children (6). Lamont has similarly admitted that legal professionals may not always have the tools to assess the complex emotional needs of children effectively. In fact, it has been held that the child’s welfare is paramount only if the child’s upbringing is “directly in issue”, i.e. when it is the central issue (7). However, sometimes the child’s upbringing is not in issue, for example, when a violent parent is being expelled from the family home. Gilmore and Glennon (8) expound on the premise that paramountcy must not be impliedly or expressly excluded by other provisions such as Part IV of the Family Law Act 1996, which sets out a comprehensive scheme for regulating family home occupation in cases of domestic violence, with specific criteria to be applied in such cases. It would appear that Parliament intended those specific criteria to apply rather than the paramountcy principle. The same was held to be true for Part III of the Children Act 1989 with respect to placing children in secure accommodation (9). The field of child psychology is sufficiently advanced to lend a hand in integrating children’s input and experiences into what inevitably ends up traumatic proceedings. Echoing Lowe et all (2021), it looks as if the time is ripe for family law reforms centring around the child in a practical not just theoretical manner.

Unless the matter is given serious consideration, the ever-increasing number of “problematic children” emerging from heavily contentious divorce proceedings is likely to affect society on a large scale. Currently, the mental health statistics (10) paint a grim picture of 1 in 4 suffering from a mental health problem each year, while anxiety and depression represent the most common mental disorders in Britain (11). It is not such a daunting task to make use of professionals and experts such as child psychologists and trained social workers to ageappropriately and considerately interview children and assess fully their emotional needs. With children who are too young or too traumatised this need becomes even more pressing. The courts would then be so much better equipped to make decisions to truly serve the child’s best interests. Providing access to mediation, therapy or counselling can help children feel safe enough to process their emotions and articulate their needs in a healthy way. This is also a way to assist the courts in assessing children’s needs and wishes within the broader context of their emotional and physical well-being. The courts can thus ensure that these align with long-term best interests of the child rather than temporary desires influenced by stress or parental influence.

Without a doubt, any divorce creates significant emotional, financial, and psychological pressures for both parents and children. This is especially true and with farther reaching consequences in high-conflict or dysfunctional households where already challenged parents must navigate legal battles, custody disputes, financial strain, and the emotional toll of ending a relationship, all while trying to provide stability for their children. Such parents will likely struggle with feelings of guilt, resentment, or fear about the future, which would make co-parenting particularly challenging. And since the science of psychology has already established that behaviour is dependent on the emotional state of the individual (12), then clearly parents are not likely to be on their best behaviour during divorce, nor would they be in the best state to make reasonable decisions. Parents, especially those damaged by a systematically abusive relationship, must be offered expert professional help to aid them make clear-headed decisions about their children and their future.

For children, divorce can be even more unsettling, leading to anxiety, confusion, and grief as they adjust to changes in their family structure, living arrangements, and daily routines. When conflict and/or abuse is present, the stress mounts even higher, as children feel torn between loyalty to both parents or fearful of ongoing instability. At this crucial time of uncertainty, children need the most care and protection and must have access to professional help to understand their own feelings and process them in a healthy way. Ultimately, both parents and children face an overwhelming transition, requiring emotional support, clear communication, and structured routines to promote resilience and healing.

Footnotes

(1) [1970] AC 668.

(2) Ruth Lamont, Family Law (2nd ed, 2022), Oxford University Press

(3) Stephen Gilmore and Lisa Glennon, Hayes & William’s Family Law (7th ed, 2020), Oxford University Press

(4) Bromley’s Family Law (12th edn, 2021), Oxford University Press.

(5) Ibid.

(6) Ibid. 

(7) Richards v Richards [1983] 2 All ER 807.

(8) Gilmore, S and Glennon, L, Hayes & Williams’ Family Law (7th edn, 2020), Oxford University Press.

(9) Re M (A Minor) (Secure Accommodation Order) [1995] Fam 108.

(10) https://www.mind.org.uk

(11) https://www.mentalhealth.org.uk

(12) See, for example, Richard Lazarus (1999) and Daniel Goleman (1995).

Bibliography

Ekman, P, Understanding Emotions and Feelings (2003), Times Books, NY

Gilmore, S and Glennon, L, Hayes & William’s Family Law (7th edn) 2020, OUP

Goleman, D, Emotional Intelligence (1995), Bantam Books

Lamont, R, Family Law (2nd edn) 2022, OUP

Lowe, N, Douglas, G, Hitchings, E and Taylor, R, Bromley’s Family Law (12th edn 2021), OUP

Lazarus, R., Stress and Emotion: A New Synthesis (1999), Springer Publishing Company, Inc.