INTRODUCTION

In mid-2018 England and Wales had an estimated population of 59,115,800, of which 12,584,403 (21%) were children aged 0 – 18 years. In 2017 there were 101,669 divorces of opposite-sex couples in England and Wales (the lowest since 1973), 338 divorces of same-sex couples, and 1,217 dissolutions of civil partnerships. Between 2008 and 2018 5 there was a 25.8% increase in the number of people who live together as a family without being married to each other, making this the fastest-growing family type in England and Wales and, indeed, the UK as a whole. Given that there is an increased likelihood that such families will break down as against married couples, the fact that there are less divorces does not necessarily mean there are less family breakdowns. Although there are no statistics on the breakdown of family relationships outside marriage or civil partnership, it is clear that the 3.9 million children who are part of the 2.5 million separated families in England, Wales and Scotland are directly impacted by the decision-making processes which take place about their post-separation care arrangements. If those with parental responsibility for the children are unable to agree what these arrangements should be, the decisions will be made through agreement in mediation or some other form of dispute resolution, or by the court in judicial proceedings.

England and Wales has a Family Court which deals with all family cases, including all those concerning the upbringing and status of children except those invoking the inherent jurisdiction of the High Court and international cases concerning applications relating to child abduction and matters of jurisdiction, recognition and enforcement under the 1996 Hague Protection of Children Convention. These latter cases are heard by the Family Division of the High Court. Whenever a court decides an issue relating to a child's upbringing, its paramount consideration is the child's welfare.

STATUTORY PROVISIONS

DOMESTIC PRIVATE CHILD LAW PROCEEDINGS

There is no mandatory provision governing children's participation in domestic private child law proceedings. However, by section 1(3)(a) Children Act 1989, the court must have regard to the ‘ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding)’. The Act is silent on how these wishes and feelings should be ascertained.

INTRODUCTION

This Handbook has provided insights into how children participate in national family law proceedings nowadays and how this relates to relevant developments regarding children's right to participate from the human rights and social science perspectives. Thus, it endeavours to contribute to the growing body of research and literature in the field of children's rights, particularly the child's right to be heard, through both legal and psychological lenses. Bringing together the findings of this Handbook in a concluding chapter has been quite a challenge, since it contains so much information on many relevant dimensions: human rights law, national family law in 17 jurisdictions, private international law and social science research. Collating the various chapters has, however, enabled us to identify several key issues and themes, which we combine with our more general reflections.

To start with a few obvious conclusions: a clear one, as pointed out by many, if not all, of the contributors to this Handbook, is that decisions in family law proceedings can have a substantial impact on children's present and future lives and, for that reason, opportunities for children to participate in these proceedings are essential. Hearing the child's views can significantly improve the quality of the decisions made, as well as assist with the child's adjustment to his/her post-separation living and contact arrangements. A trend is also evident in national jurisdictions, private international law and human rights to pay more attention, and attach greater weight, to child participation to ensure that children have a real say in matters that affect them. A third general conclusion is that the rights of children in this domain are often diffuse and the result of processes developed over time, which has led to fragmentation. Even though this Handbook demonstrates clear developments favouring child participation in family law proceedings, much work remains to be done. We therefore identify a roadmap for future work in this field.

HUMAN RIGHTS

Clearly, human rights have had a major impact on the law, with six international instruments containing participation rights for children: the UN Convention on the Rights of the Child, the African Charter on the Rights and Welfare of the Child, the European Convention on Human Rights, the European Convention on the Exercise of Children's Rights (1996), the Council of Europe's Guidelines on Child-friendly Justice (2010) and the Guidelines on Children in Contact with the Justice System of the International Association of Youth and Family Judges and Magistrates.

INTRODUCTION

Children's participation is now widely accepted as an important aspect of contemporary family law decision-making processes. Research findings emphasising children's desire for opportunities to be heard in legal proceedings affecting them, with appropriate weight to be attached to their views, coupled with children's Article 12 rights in the United Nations Convention on the Rights of the Child (UNCRC) 1989, have prompted many jurisdictions to enact, or strengthen, statutory provisions and to implement mechanisms to enable children to express their views in the family justice system. These laws and mechanisms vary significantly across the world and so this International Handbook aims to bring together the diverse range of approaches and practices in the field to identify their similarities and differences. The Handbook also highlights current trends and will help to point the way forward globally.

The idea for such a Handbook grew out of a collaboration between the four co-editors when we met in London in March 2017, and then in Leiden in October 2017, and agreed to develop an international project based on our shared research interest in child participation in family law contexts. Two of us are based in common law jurisdictions (New Zealand, England and Wales), while the other two are from a civil law jurisdiction (The Netherlands). We recognised the exciting opportunity offered by combining our common law and civil law expertise, and by inviting contributions from leading child and family law researchers in our respective networks, to produce a book that would provide a state-of-the-art update on child participation internationally. This seemed especially important given that so many jurisdictions, having embraced child participation, currently grapple with how best to implement this within their dispute resolution processes. The Handbook enables the modes of child participation in these national contexts to be considered within the growing body of research on children's right to be heard in family law proceedings from legal and social science perspectives and from theoretical and international perspectives.

Child and family law proceedings span both private law and public law issues. This International Handbook focuses on private law disputes when separated parents are seeking to resolve their children's future care arrangements (variously called residence, custody, contact, access, etc.).

INTRODUCTION

In August 2009 the Right Honourable Lord Justice Thorpe, then Head of International Family Justice for England and Wales, hosted the International Family Justice Judicial Conference for Common Law and Commonwealth Jurisdictions at Cumberland Lodge, Windsor, England. This included an aft ernoon session devoted to international relocation, which had become one of the most controversial and difficult issues in family law internationally – and of increasing concern due to the rise in cross-border relationships and international mobility. At that time, empirical studies on relocation disputes following parental separation had been undertaken in Australia, New Zealand and England and Wales, and members of each research team were invited to present their respective research findings at the Conference to help inform the discussion. This was the first time we (Nicola and Marilyn) met in person; our previous exchanges having been undertaken via email. So it was with some excitement, and a great many thanks to Professor Nigel Lowe – a leading figure at the Conference – that our individual efforts on relocation were recognised and a new working relationship forged between us. Professor Lowe and Dr. William Duncan, then First Secretary of the Permanent Bureau at The Hague, invited us to collaborate on a joint presentation and written paper reviewing the international research evidence on relocation for the forthcoming International Judicial Conference on Cross-Border Family Relocation. This Conference, attended by 50 judges and experts, was held in Washington DC, in March 2010. Our paper was one of the few reviews at the time of the empirical evidence on mobility and relocation and underpinned the Washington Declaration on International Family Relocation that resulted from the Conference. Our paper was subsequently published in the Family Law Quarterly.

Professor Lowe's kick-starting of our collaborative work on relocation – the lawful means by which separated parents seek to relocate with their children – inevitably led onto our consideration of international child abduction; the unlawful means by which some separated parents choose to ‘relocate’ with their children. As flipsides of the same coin, it has been important to us to consider the nexus between relocation and abduction.