7 - Children's involvement in family proceedings – rights to representation

Summary

Introduction

English law allows mature children a remarkable degree of procedural autonomy by allowing them to initiate proceedings themselves, in order to enforce their own substantive rights. They may, for example, apply for an order under the Children Act (CA) 1989 relating to their own health care, or gain the right to live with some adult other than their parents. It is, however, relatively unusual for children to initiate their own litigation. Far more are drawn into legal proceedings by parents disagreeing over their upbringing in the context of divorce and separation. Indeed, increasing numbers of children find that ‘the taken-for-grantedness of family life’ is shattered by their parents breaking up. These children may find that the legal system makes it only too easy for their parents not to involve them in any arrangements made for their future upbringing. Indeed, a growing body of authors criticise what they see as the law's outdated view of children as the passive victims of parental and adult quarrels. Instead, those concerned with the ‘new sociology of childhood’ argue that children should be acknowledged as having agency – as autonomous individuals with a right to participation in all aspects of family life, including post-divorce arrangements for their care. Such views are debatable. Whatever conceptualisation of childhood is adopted, however, children should be allowed to challenge any infringements of their substantive rights through the court process. Otherwise, the fact that they are rights-holders may be of little comfort to them.