ENGLAND & WALES Law and Practice Contributed by: Jeremy Levison, Miranda Green and Alexander Bartlett, Levison Meltzer Pigott
payments and (restricted) capital provision. It is pos ‑ sible for such orders to extend beyond a child’s 18th birthday, a common example being payment of main ‑ tenance until a child completes university education. However, once a child has turned 18, any new appli ‑ cations would need to be made by the child on their own behalf. The court would consider whether the child has ongoing educational or vocational expenses, or whether there are other special circumstances that would justify the making of such an order. 3.3 Other Matters Specific Children Issues The court has the power to determine specific issues that may arise between parents in connection with the exercise of their parental responsibility. Com ‑ mon examples include which school a child should attend, changing a child’s surname, or relocating with a child inside or outside the jurisdiction. As above, the court’s paramount consideration will be the position that would best promote the child’s welfare. Parental Alienation Parental alienation, or rather the display of alienating behaviours as it is currently known, has long been a vexed issue within the family courts. There is a per ‑ ception that it can be an effective and all too com ‑ mon method of obfuscation deployed by abusers in response to any allegations made by the other parent. On the other hand, a party may legitimately believe that a parent is involving a child in a narrative of abuse which is not true. The court does not presently recognise any formal definition or diagnosis of a child having been subject to alienating behaviours, which are, broadly speak ‑ ing, actions that are intended to undermine a child’s relationship with their parent. A court will carefully consider whether or not it is nec ‑ essary and proportionate to determine the truth of any allegations. If so, the court can hold a special hearing, known as a “fact-finding hearing”, in which both par ‑ ties will be called to give evidence and the court shall make a factual determination of whether, based on the balance of probabilities, the allegations are true. It is also possible for the court to join a child to proceed ‑
ings on the basis that they will be represented by a guardian and a solicitor. Provision of Evidence by Children A child’s view is typically sought outside the court environment by a neutral professional or court assis ‑ tant and relayed by way of a report. In rare circum ‑ stances, a child may be called to give evidence in court. There is no minimum age required for a child to give evidence. Section 96 of the Children Act 1989 sets out the circumstances under which a child’s evidence may be admissible. The broad question is whether a child understands that they must speak the truth and whether or not they have sufficient understanding of the circumstances, in order to justify their evidence being heard. The court will carefully weigh any decision to call a child to give evidence. While there is no formal pre ‑ sumption against calling a child, a court will be slow to do so given the considerable potential for harm. 3.4 ADR in Child Law Matters ADR/NCDR in children proceedings is subject to much the same considerations and procedural requirements as those in financial remedy proceedings. Please see the information provided at 2.9 ADR in Financial Mat- ters . 3.5 Media Access and Transparency in Children Proceedings Reporting on Children Cases Broadly the same rules are currently applied in the majority of private children proceedings as in the con ‑ text of financial proceedings. The details of the trans ‑ parency pilot scheme, which is presently extended to all courts, are considered at 2.8 Media Access and Transparency in Financial Proceedings . Any report ‑ ing of a case involving children will be subject to a greater emphasis on ensuring that any transparency order protects the identity of those children. The identities of children will be anonymised, and the court will be concerned to ensure that any additional information which might indirectly identify the children will be carefully reviewed.
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