Family President publishes guidance for judges on writing to children in family court proceedings

The President of the Family Division, Sir Andrew McFarlane, has issued guidance for family judges on when, how and why to write to children in family court proceedings.

The toolkit, developed with the Family Justice Young People’s Board, gives public and private family law judges an approach for writing to children, created after input from children and young people, judges, academics, social workers, clinical psychologists, communication experts and others who work with children and the courts.  

The guidance observes that writing to children is one important way of ensuring that children have the opportunity to participate in family court proceedings.

The toolkit therefore includes:

• A summary of the evidence on children’s experiences of proceedings and how judges writing to children can influence these experiences;
• A discussion of the different purposes served by writing to children in different circumstances;
• A summary of key things to consider when writing to children;
• Examples of language, tone and format drawn from previous letters judges have written to children and a list of published judgments as examples.

In his foreword to the guidance, the President of the Family Division said: “The publication of this toolkit for judges writing to children is a most welcome event. The benefit of judges communicating with the child at the centre of proceedings has long been recognised, yet few of us have ever written to a child to explain our decision in their case. There is an understandable judicial reluctance in this regard, partly because of the realisation that the letter will be important and there is a fear of saying the ‘wrong thing’. In addition, judges may be worried that it will take a good deal of time to get the letter ‘right’, coupled with the well-known inertia that comes from staring at a blank page, without a template or previous experience to guide the writer.

“As is made plain throughout by direct quotation from children, a child is entitled to be given an accurate and informative account of what was decided, and why, from the judge who made the decision. This will be important for the young person in understanding that their wishes and feelings have been taken into account by the court, and in supporting them to accept or make sense of the decision as they move forward with their life thereafter.

“This very readable ‘toolkit’ does a great deal to break down the factors that may have inhibited judges in the past. To get past ‘blank page’ inertia, the content of a typical letter is built up, sentence by sentence, with suggestions, explanations and examples, and the whole is rounded off with worked up examples."

Sir Andrew added: “[…] 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 Nuffield Family Justice Observatory (NFJO), which also supported the toolkit’s development, observed that a child’s right to participate in proceedings and to have the final decision communicated to them in a way they can understand is “enshrined in international and domestic legislation and guidance”, yet it does not routinely happen.  

The organisation noted that evidence “backs the importance” of judges writing to children, which can help them feel better about the decisions being made.

Jude Eyre, Associate Director for Practice and Strategy at Nuffield Family Justice Observatory said: “Children’s rights to have a voice and participate in proceedings are enshrined in law. But we know that their experiences often don’t match up to what they want or need or are entitled to. This toolkit represents an important step forward – an active response to what children have said needs to change.”