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The Cardiff University research into the operation of r 9.5 of the Family Proceedings Rules 1991, commissioned by the Department of Constitutional Affairs (DCA), was published at the end of March 2006. The researchers consulted with children and their families to obtain their views on being separately represented in order to understand the extent to which formal representation through a solicitor and guardian was meeting children's needs or whether there were other ways in which their needs could be met.
In a written ministerial statement made on publication, Harriet Harman MP stated that the report indicated that provisions for meeting children's needs could be improved. The recommendations included the need for the potential advantages of r 9.5 to be secured earlier in proceedings; a call for greater judicial continuity in the hearing of cases; the proposal that children should have clear, reliable and age-appropriate information about their parents' separation/divorce from the beginning of proceedings; that children should have a passage agent someone, apart from their parent(s), to support them through the court process; that there should be early identification of the features of the case which were likely to produce intractable behaviour on the part of parents; that the child should always be separately represented before making enforcement orders under the (eventual) Children and Adoption Act; and the need to implement changes to FamilyMan to record:(i) if the tandem model was used; (ii) who was appointed to represent the child; and (iii) the name of the judge hearing the case.
She said that the report, alongside consideration of other research focusing on children's welfare and other statistical evidence, would be used to inform the making of rules of court under s 122 1(b) and (2) of the Adoption and Children Act 2002. In the meantime, existing provisions for the representation of children remained in force, which continued to offer a range of ways in which the courts might ascertain children's wishes and feelings.
The report itself warns that as r 9.5 is only applied in cases regarded by judges as causing special difficulty, there were formidable research problems to be overcome in order to obtain even a small sample of children in such cases.
The children's views and experiences Although the 15 children and young people and their family circumstances, which led to court proceedings varied considerably, a number of consistent messages emerged from their interviews:
Most of the children liked the idea of someone appointed by the court to help them have their say in the proceedings.
Most of them believed that if their parents could not resolve their differences in any other way, a neutral judicial authority of some sort was needed.
The children felt that the court and the judicial authorities should be child-friendly and work in such a way that if the children wanted to put their view to the judge directly, the setting and the judge should be sufficiently approachable to enable them to do so.
A number of children needed someone accessible to them, apart from their parents, to support them through the litigation process. The role required is that of a passage agent ie a trustworthy person, able to relate to the children with empathy informed by psychological and legal understanding, who can help the child navigate the turbulent waters arising from their parents' dispute.
It was clear that for some of these children this role was performed by a guardian from CAFCASS (and in several instances from NYAS). For some older children, the solicitor emerged as the key figure in this respect. But there were other children who did not appear to have found anyone they could trust and relate to. They appeared lost, withdrawn, depressed and sometimes angered and intimidated by their contact with the family justice system.