A court can make a Child Arrangement Order, which considers where a child shall live and/or who a child will have contact with, under s8 Children Act 1989. When a Judge is making an order, they must consider the welfare checklist. This is not an exhaustive list but it includes considerations such as the wishes and feelings of the child (in light of their age and understanding) and the child's physical and emotional needs. These considerations are the focus of this article.
It is widely accepted that a child aged 16 or above has the ability to make their own decisions regarding when and how they would like to see their parents. The court will therefore respect their wishes once they have reached this age. Under the law, a Court cannot make an order in relation to a child who has reached 16, unless it is satisfied that the circumstances of the case are exceptional and require intervention by the Court. For example, where a child has learning difficulties and/or additional needs.
In M v F & Anor [2024], the child was a 17 year old boy with physical and communication limitations due to suffering from cerebral palsy. The Court had to decide whether the child had the capacity to make his own decision about contact with his father, and if he did, whether his wishes should be followed in light of his vulnerabilities.
Following conversations with a social worker, psychologist and the child's guardian, it was clear that whilst the child was giving mixed messages, he did want to have some type of relationship with his father and be able to meet up with him at his discretion. However he did not want to be forced into this. It was agreed that the child had capacity to make this decision.
On this basis, the Judge made a final child arrangements order for there to be no specific order for the child to spend time with his father but an order that the child's mother, as his carer, make the child available for contact when the child indicates he would like this. The Judge reinforced that no order forcing the child to spend time with his father was being made to respect his age, capacity and ability to make his own decisions.
This judgment acts as a reminder of the importance of the child's wishes and feelings when they are aged 16 or over. Even in circumstances where a child has additional needs, where it can be determined that the child has capacity, their own wishes and feelings regarding contact should be followed. It is important that both parents respect their children's wishes and assist in arranging contact where necessary.