Hearing and Interviewing Children in Family Court Proceedings: Balancing Participation and Reliability
Updated: Oct 19
Children's participation in custody and contact proceedings is a legal right, yet the way a child is heard strongly affects both the child's experience and the usefulness of the information obtained. This article distinguishes between hearing a child's views and forensically exploring facts, summarizes research on children's suggestibility and on structured interviewing, and offers practical recommendations for psychological experts and judges.
Article 12 of the UN Convention on the Rights of the Child obliges states to ensure that children capable of forming their own views can express them in all matters affecting them (UN General Assembly, 1989). In Germany, § 159 FamFG generally requires the court to hear the child personally and form a personal impression, regardless of the child’s age; the law provides limited grounds for dispensing with the hearing and requires reasons for doing so (FamFG, § 159). Legal entitlement, however, does not settle how a child should be heard. Lundy (2007) argued that “voice” alone is insufficient and described four interlocking elements: space to express views, support to form them, an audience that listens, and genuine influence on the decision. Professionals therefore need more than good intentions; they need methods.
Two Tasks That Should Not Be Confused
Family proceedings place two distinct demands on practitioners. The first is to learn what a child wants and how the child experiences important relationships. The second is to clarify disputed events, for example allegations of neglect or violence. The first task calls for a supportive, exploratory conversation. The second calls for a forensic interview designed to protect the accuracy of the child’s account. Mixing the two risks both outcomes: suggestive questions intended to encourage disclosure can contaminate reports, whereas overly rigid questioning can limit a child’s opportunity to convey views (Lundy, 2007; Lyon, 2014; Saywitz et al., 2018).
What Research Says About Reliability
Research on children's testimony has shown that even young children can provide accurate information, but that accuracy depends heavily on the interview conditions. Ceci and Bruck (1995) documented how repeated questioning, suggestive prompts, and interviewer bias can distort children's reports, particularly among preschoolers. Subsequent work has translated these findings into protocols. The NICHD Protocol, described in detail by Lamb et al. (2018), relies on rapport building, narrative practice, and open-ended invitations and keeps focused or option-posing questions to a minimum. Lyon (2014) summarized evidence that such techniques increase both the amount and the accuracy of information, and Saywitz et al. (2018) reviewed best practice for interviewing children across age groups. Hershkowitz et al. (2012) showed that children's communicative and narrative skills develop considerably during the preschool years, which means that expectations and question formats must be adjusted to age.
Exploring the Child's Will
When the aim is to understand preferences rather than events, German-language family psychology commonly examines whether a stated wish is autonomous, intense, stable over time, and oriented toward a goal (Dettenborn & Walter, 2016). These criteria help distinguish a child's genuine position from loyalty-driven or coached statements. They are not a checklist for the child but a framework for the expert's interpretation. A child's wish is also not identical to the child's best interests; it is one important piece of information that must be weighed against developmental needs, risks, and the quality of relationships (Salzgeber, 2015).
Practical Recommendations
1. Clarify the purpose of the conversation before it starts, and explain it to the child in age-appropriate terms, including the fact that the child is not responsible for the decision (FamFG, § 159(4); Lundy, 2007).
2. Prepare by gathering the file information, but keep hypotheses open and avoid fixing on a single explanation (American Professional Society on the Abuse of Children [APSAC], 2023; Ceci & Bruck, 1995).
3. Begin with free narrative and neutral topics, and prefer open invitations ("Tell me about...") over closed or suggestive questions (Lamb et al., 2018).
4. Document the interview transparently, ideally by recording it where lawful and appropriate, so that the question–answer sequence can later be reviewed (APSAC, 2023).
5. Differentiate in the report between the child’s statements, the expert’s observations, and the expert’s interpretations (APSAC, 2023).
6. Give feedback on how the child's views were taken into account, which is part of genuine participation (Lundy, 2007).
Conclusion
Participation and reliability are compatible goals when the purpose of the conversation is clear and the method matches the purpose. Structured, open-ended approaches can support children’s participation while reducing avoidable sources of inaccuracy (Lundy, 2007; Lyon, 2014; Saywitz et al., 2018). Professionals should be trained in these methods and should state their limits openly in reports and hearings (APSAC, 2023).
