Living With Mum or Dad - When Can a Child Decide?
This question rarely comes up when we are advising parents with young children, however we get asked this question a lot when we are discussing older children.
Often children may tell their parents where they would like to reside and in some cases parents feel that their children are mature enough to make their own decision.
What Does the Law Say?
A child cannot legally decide who they want to live with until the age of 16. However, this may extend to 17 or 18 if there is a child arrangement order in place that specifies where a child should live. It may be that as a child gets older, the parents wish to discuss this with the child however until they reach 16 (or older as set out in child arrangement order), it is for the parents to decide together. In the absence of an agreement between the parents, the court can make this decision.
The overriding consideration in family proceedings is the question of 'what is in the best interests of the child/children?'. When considering this question, the court and other professionals are guided by the Welfare Checklist. The checklist addresses 7 key criteria:
- The ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding)
- The child's physical, emotional and educational needs
- The likely effect on the child of any change in his or her circumstances
- The child's age, sex, background and any characteristics of which the court considered relevant
- Any harm which the child has suffered or is at risk of suffering
- How capable the parents are of meeting the child's needs
- The range of powers available to the court under the Children Act 1989 in the proceedings in question.
In court proceedings, the court might decide it is necessary for the Children and Family Court Advisory and Support Service (CAFCASS) to prepare a detailed report about the children and the circumstances surrounding your case. When preparing this report, CAFCASS may decide it is appropriate to speak to the child or children.
CAFCASS officers are specially trained in doing this, so the conversation is approached carefully and in an age-appropriate manner. The children will be asked questions such as how they feel about the current arrangements and whether they would like to spend more or less time with either parent. Depending on the age of the child and their responses, the CAFCASS officer will consider these views when they make recommendations for child arrangements to the court. Generally, the older the child is, the more weight their views will be given, although the other factors set out above are equally important. It is incredibly rare for the child to speak to the Judge or other lawyers and they will not be expected to come to court.
Agreeing Child Arrangements Outside of Court
Depending on the age of the child and the individual circumstances, some parents may feel that it is suitable to discuss such matters with their child themselves. We recommend that parents approach this cautiously. Both parents should agree to have a conversation of this nature before it takes place and both parents should be present during the conversation. We would also recommend that a third party, such as a mediator or family counsellor, assists with this discussion.
Matters such as where a child should reside are of an adult nature. Therefore, in many cases, these conversations are not appropriate, especially for younger children or where the relationship between the parents is particularly fraught.
Parents need to be mindful that by giving the child some element of choice, they are asking that child to effectively choose between parents. In some cases, children will feel torn which may lead them to tell both parents what they think that parent wants to hear. This can be emotionally damaging and may result in conflicting messages being given to the parents. This could ultimately create more confusion about where the child should live.
Practical Steps - What If We Cannot Agree?
If parents cannot agree, there are several options for parents to consider:
- Mediation - Mediators act as an independent third party and help facilitate discussions in a child-focused way. Ordinarily, these meetings would be physical face-to-face meetings, however many mediators are now using virtual calls to ensure that clients still have access to mediation services.
- Lawyers - An experienced solicitor will be able to advise you on the position regarding child arrangements and can assist with discussions between the other parent and/or their solicitor.
- Court - In the event that you are unable to reach an agreement between yourselves (or by utilising third parties where necessary) you may wish to make an application to the court for the court to decide. As discussed above, if it is considered appropriate, your child may be asked about who they want to live with during proceedings. However, this is not guaranteed. The determination of the court will be binding, however there may be opportunity for the order to amended in the future if appropriate.
VWV is a full service, professional law firm and is unable to offer free legal advice at this time.