Legal industry professionals are calling for a vital review of family law in England to ensure children’s voices are properly heard during parental separation. Current processes too often leave young people “muted,” with little to no direct involvement in decisions that deeply affect their lives.
Researchers Professor Anne Barlow (University of Exeter) and Dr Jan Ewing (University of Cambridge) argue that the Law Commission should examine whether a children’s rights framework is needed to strengthen the protection of young people in family justice proceedings. This review, they say, is increasingly urgent in light of recent reforms promoting out-of-court dispute resolution and changes to legal aid.
They suggest the law should be updated to require that children’s wishes and feelings are considered wherever possible—not only in court cases but also in mediated or informal arrangements between parents.
The researchers also advocate for a public consultation on whether the United Nations Convention on the Rights of the Child (UNCRC) should be formally adopted into English law. Such a move could help ensure children’s rights are safeguarded during family breakdowns and give them a meaningful voice in decisions that shape their futures.
Currently, the Children Act 1989 governs arrangements for children when parents separate. While still widely respected, the law primarily focuses on children’s welfare and does not explicitly recognize their rights. Moreover, it applies only to cases that reach court.
“This is a critical moment for the Law Commission to consider whether the Children Act 1989 still adequately protects children’s rights and ensures their voices are heard,” said Professor Barlow. “Recent legal changes—such as the removal of the court’s duty to review child arrangements in divorce cases—combined with the increased push for non-court solutions, make this review particularly timely.”
Since 2014, legislative reforms have left separating parents largely responsible for arranging child care plans on their own, often without any obligation to involve or consult their children. This could potentially breach Articles 3 and 12 of the UNCRC, which guarantee children the right to have their best interests considered and to express their views on matters affecting them.
Although child-inclusive mediation is available, it depends on both parents agreeing to it and the availability of a qualified mediator. As a result, many children remain excluded from meaningful participation in decisions about their lives.
“We don’t know how well current private family law aligns with our obligations under the UNCRC,” said Dr Ewing. “Despite affecting an estimated 280,000 children in England each year, there’s been little focus on how these rights should apply in the context of parental separation.”
The analysis highlights a broader systemic issue: no single government department is responsible for children in the context of family breakdown, allowing their rights to fall through the cracks.
The researchers propose amending the Children Act to ensure children’s voices are considered not only in court but also in out-of-court processes like mediation. They also suggest redefining parental responsibility to include a duty to consult children on significant decisions, and introducing a legal presumption in favor of child participation.
“This is an ideal moment to revisit children’s rights in England under the UNCRC,” Dr Ewing concluded. “With other UK nations moving toward formally incorporating the Convention into domestic law, it’s time England did the same—to treat children as active participants in family law, not passive subjects.”
