At what age can a child decide which parent to live with in England?
When two parents separate and decide to live apart the most important issue that usually needs resolving is the question of where the child (or children) should live and with whom. The first step for the parents will be to try to resolve the matter between themselves. Where the parents have managed to remain relatively amicable following the breakdown of the relationship, it may well be possible for the child’s living arrangements to be agreed. This may involve the child living primarily with one of the parents whilst spending an agreed amount of time with the other parent, or it may involve an equal shared care arrangement with the child spending an equal amount of time living with each parent.
Whilst some separating parents will be able to agree the child’s living arrangements between themselves, given the emotional difficulties that are often encountered following the breakdown of a relationship, there will be other separating parents who will need additional assistance. For these parents engaging with either a family consultant, an independent social worker and/or a mediator may enable them to resolve the issue by agreement. Some mediators are trained to carry out Child Inclusive Mediation, which is a process whereby the mediator speaks to the child or children in order to try to ascertain their wishes and feelings, which are then reported back to the parents in a separate feedback meeting. The purpose of this is to assist the parents in agreeing child arrangements having been provided with this information. Further information regarding mediation together with other forms of Non-Court Dispute Resolution can be found in the blog ‘Dispute Resolution – what is it and what are my options’.
Where parents discuss a child’s living arrangements and manage to agree matters between themselves (whether with or without the assistance of Non-Court Dispute Resolution), it would be hoped that this would have taken into account the child’s indicated wishes and feelings. The extent to which they are, however, will be dependent on the child’s age, and the extent to which the parents choose to take them into account.
Where two parents are unable to agree a child’s living arrangements, an application to Court to resolve the issue may be required. At the first hearing (FHDRA) the Court will investigate what the issues between the parties are, and if matters cannot be settled, directions will be made as to what further information or evidence is needed and how the matter should proceed. Where one of the main issues is the child’s views on where they should live, the Court is likely to direct that the child’s wishes and feelings be ascertained in an age appropriate manner, having regard to the risk of parental influence. The child’s wishes and feelings will usually be obtained by a CAFCASS officer (or a social worker where the local authority are involved) and will be reported back to the Court and the parties either as part of a section 7 report (which is likely to address other issues in the case as well) or as a specific wishes and feelings report.
CAFCASS will seek to establish the child’s wishes and feelings in different ways depending on the age of the child. For example, they may speak directly to an older child about their feelings or concerns relating to the future, whilst instead asking a younger child to draw a picture to help express their views. Whilst the CAFCASS officer will seek to understand the child’s wishes and feelings, they will not look to pressurise them or require them to choose between their parents. Alternative ways of the Court ascertaining a child’s views, which are less commonly used, include the child being encouraged to write a letter to the Court, the child being made a party to the proceedings, or the judge meeting with the child in accordance with approved guidance.
In all cases, the Court’s paramount consideration in deciding any questions concerning a child’s upbringing, such as who they should live with, is the welfare of the child. In determining what Order should be made, the Court will consider the following factors (known as “the Welfare Checklist”):-
In considering what Order to make the Court must also be satisfied that making an Order is better for the child than not making an Order at all.
Essentially a child’s views should be considered as part of a broad range of factors. The weight to be given to a child’s views depends on the age and understanding of the child, and the other important factors in the case (by reference to the above checklist). Ultimately, where two parents cannot agree on a child’s living arrangements, it will not be the child who decides the outcome, but the Court taking into account the wishes and feelings of the child.
In general terms, a child who is 16 years or older will be considered old enough to decide for themselves who they wish to live with and what time they wish to spend with the other parent, and the Courts are of the view that a child of this age cannot and should not be made to see a parent if they are clear that they do not wish to. Similarly, if a child of this age wishes to see the other parent it is considered likely that they will do so and that it would be difficult for the other parent to try to stop them. For this reason, a Child Arrangements Order that regulates when a child is to spend time with another person will usually end upon the child turning 16 years old, and the Court would not make such an order after the child has reached the age of 16 years old, save for exceptional circumstances.
At the other end of the spectrum, the general view is that whilst a child’s wishes and feelings still remain important under the age of 10 years old, at this age their views are very unlikely to be the determining factor in the Court deciding what is in the child’s best interests in terms of whom they should live with. Whilst there is an increasing understanding that children should feel more listened to in any court proceedings determining an aspect of their future, the prevailing view is that this is most important for children over the age of around 10 years old. It has previously been proposed that whilst children should be able to speak with the Judge in child arrangements order proceedings, this would only apply to children over the age of 10. Similarly, whilst child inclusive mediation is seen as a positive way for a child’s views to be heard in mediation, it is generally considered that child inclusive mediation is only suitable for children over the age of around 10 years. However, if there is an older sibling and a younger sibling below 10, child inclusive mediation can still be used.
Between the ages of 10 years and 16 years, increasing weight is likely to be given to a child’s wishes and feelings, although this does depend on the particular child and the circumstances of the case. Even at this age, however, it remains the case that the child’s wishes and feelings are only one of the factors that must be considered by the Court. This factor alone will therefore not determine the final decision.
In terms of a child’s views, it is important to note that it is not just their age that is important, but their age and understanding. Therefore, there may be scenarios where a mature 12 year old’s views that are clearly expressed, are given greater weight than a 13 year old’s views in another case where that child struggles to articulate or explain their stated wishes.
Whilst there is understandably increasing support for children to be heard in relation to proceedings that determine such an important aspect of their future, there would be clear risks involved in simply following a child’s wishes. It is not uncommon for children to be influenced by the negative views that two parents may have of one another. Where a relationship breakdown has been difficult and acrimonious, it is not uncommon for the parents to allow their emotions to become evident to their child. There is therefore a risk that a child will feel influenced by what their parents have said in their presence. There are also occasions where a parent will directly seek to influence a child or look to put words in their mouth. Alternatively, a child may be acting on emotion or may misunderstand the situation, rather than being able to fully understand and prioritise what is in their best interests in the long-term. It is therefore important that, whilst a child is provided with the opportunity to express their wishes and feelings and that these should be taken into account, the Court needs to retain discretion as to what weight should be given to these views and to determine what is ultimately in the child’s best interests taking into account all the circumstances of the case.
Whilst this article will hopefully provide some useful information regarding the weight to be given to a child’s views in relation to their living arrangements, their wishes and feelings need to be properly ascertained and given appropriate weight taking into account all of the other factors in the case. Therefore, if you need tailored advice regarding such a matter then please get in touch with us to arrange a consultation with one of our specialist family lawyers.
Craig Yeung-Williams is an Associate Solicitor in our Brighton team.
Considerations for children aged between 10 and 16, my granddaughter who is 15 now wants to be returned to me, she keeps asking her social work who will not reply to her wishes, so who should my daughter now see or could I see someone please ?
Also I have just been informed that when I see my grandchildren I have to pay for the food and venues but can be reimbursed £5 for each child is this correct.
Hi. Thank you for your query. It is very difficult to be able to advise on such a matter without knowing the details of the case. It seems clear that Children’s Services are involved, but I am not clear to what extent. I am also not clear who your granddaughter is currently living with or what the background to the matter is. I would therefore suggest that you contact our office and provide a brief summary of the matter. We can then assess the situation and if we can assist you we can arrange an appointment for you.
My 13 year old daughter has been repeatedly verbally abused by her mother and her mother’s partner for the last 23 months. It’s caused her to starve herself because she dare not go downstairs and self harm on multiple occasions. I’m her biological father and she wants to live with me to avoid the misery and depression she’s been suffering at her mother’s. The starvation has caused 2 A+E visits.
Thank you for your query. The circumstances that you describe seem extremely serious. I assume, given the circumstances, that the local authority’s children services are already aware of the situation. If they are not and you have ongoing concerns regarding your daughter then I would suggest contacting them urgently. The circumstances that you describe may also warrant an urgent application to the Court for a child arrangements order. We would recommend seeking legal advice as a matter of urgency. Please get in touch if we can assist.
I have a child arrangement order in place for my 9 year old for 2 nights on a weekend once a fortnight, but she gets very upset when she has to leave and this is heartbreaking. On multiple occasions she has begged to stay longer, and quite a few times she has mentioned spending a week with me and a week with the other parent, so she can see us both equally is there anything I can do?
Thank you for your query. Although child arrangement orders are legally binding, it is recognised that things can change as children get older. As a result, it is always possible to seek to vary a child arrangements order, whether by agreement with the other parent, or by application to the Court. There are various factors that would need to be taken into account when deciding whether to make an application to vary though. Therefore if you would like further advice on this, I would suggest contacting our office on 0330 055 2234 so we can look to book you in for an appointment with one of our family lawyers.
Hi my 12 year old has suffered at the hands of his dad, ober the last two years the social have been involved multiple times regarding his dad man handling him. He has now decided to come and live with me full time and not shared anymore. Will his wishes be fulfilled by the court? What are his chances of his wishes being fulfilled?
Thank you for your query. At the age of 12 years old, your son’s wishes and feelings will be an important factor. That said, your son’s wishes and feelings are one of a number of factors that the court would need to take into account. Ultimately the court would seek to determine matters based on what it considers to be in your son’s best interests. In order to advise you further regarding this it would be important for us to understand the background to matters more fully. Therefore, if you would like further advice on this, I would suggest contacting our office so we can look to book you in for an appointment with one of our family lawyers.
Hi, me & my partner will be separating. He wants our son to live with him. He is 5. My son loves his dad very much & when he asked him in a discussion he said his dad.
My son’s dad has a high paid job, which long hours, late nights and travelling are involved.
I will be having to find a new job to fit around school hours. I have another son who lives with us also he is 12.
Is it likely he would win in court?
Thank you for your query. Whilst your son’s wishes and feelings would be taken into account, given his young age it is unlikely that significant weight would be attached to these. There are a range of factors that the Court will need to consider, and given some of the details that you have provided regarding the father’s job and your other son, it appears that there are other factors that would likely have a significant impact on the Court’s determination of what is in your son’s best interests. If you would like further advice regarding your situation, I would suggest contacting our office so we can look to book you in for an appointment with one of our family lawyers.