The answer to when a child can have a definitive say on whether they do or don’t want to have contact with their non-resident parent is on the child’s 16th birthday. However, the Children Act 1989 contains a checklist, often referred to as the “welfare checklist”, which courts use when deciding on the best outcome for a child. Within this checklist, there is a requirement that a court should take into account the child’s wishes and views insofar as these can be obtained. It therefore follows that whilst the age is 16, much younger children’s views are canvassed and considered accordingly.
It is important to note, that although the court is required to take such feelings into account, it does not have to follow them, and can decide that the child’s best interests are better served by an alternative arrangement.
The age of the child
A child’s age can have a significant impact on how much “weight” is attached to their views and wishes. Essentially, the younger the child, the harder it will be to provide a reasoned decision in relation to a specific question. Very young children, such as toddlers, cannot articulate a particular point of view, in which case the court will either apply general principles such as a child would want to have a good relationship with both parents, or may look towards a child’s behaviour and responses to certain circumstances. This helps the court establish what that child’s wishes and views might be.
The older a child, and the more expressive and articulate they become, the easier it may be to establish what the child’s feelings about a particular situation are. This should also be viewed through the prism of the complexity of the decision they are being asked to make and their ability to reason through the various effects that such a decision could have.
For example, if a ten-year-old was asked if they would like to move to Disney World in Florida, they might be supportive of the idea without taking into account the impact of loss of contact with wider family or other changes that might happen. Seeing only the advantages of living in an immersive fantasy setting. If the same ten-year-old was asked if they wished to have an extra hour with a parent during contact so they could have something to eat, that is a much more simple and straightforward decision for the child to understand and determine.
Given that the Children Act confirms orders end, in most cases, at 16, the court is far more likely to attach significant weight to a clearly considered view of a 15 year old than they are to that of a 10 year old because of the shorter amount of time an order will be effective.
The nature of the child
The nature of a specific child must also be factored into deciding how much weight to give to their views. Some children are far more streetwise and capable of understanding and making decisions, than perhaps another child of the same age who has a more naïve personality. In addition, caution must be taken when considering what may have influenced the child’s decisions, whether that is school friends, siblings or their parents. Children are very astute to their parent’s opinions and moods, and can be conscious that it is easier for them to reflect what that parent would like them to say as being the simplest way to avoid conflict.
When can my child decide on contact?
Below the age of 16, the older a child is, the more weight the court is likely to attach to their views and wishes. However, that said, there must also be a more holistic approach as to the reasons, justifications, benefits and advantages of ultimately deciding whether to comply with a child’s wishes and feelings, rather than simply accepting them at face value.
It is also right that the courts are taking a fairly firm stance on the requirements of the child maintaining a relationship with both parents, particularly the one who doesn’t live with them.
Generally speaking, a child of about 11 or 12 would probably have a certain degree of influence over their arrangements, and by 13, their wishes would be very close to being determinate. The wishes and feelings of a teenaged child would almost exclusively determine the arrangement, provided these had not been influenced by bad actors.
How are a child’s views and wishes obtained?
If the case has moved into the sphere of the court, the most common way of ensuring that children are included in the process is a Section 7 report. This refers to Section 7 of the Children Act 1989, which gives the court the power to direct that there should be a welfare report. Here, as part of making recommendations to the court, a CAFCASS officer will conduct investigations into the child’s health, welfare, and wishes.
The CAFCASS officer will usually speak to the child alone, observe each parent with the child, and discuss matters more generally with each parent individually. They will then write up their findings in a report which is filed at court.
In more complicated cases, a children’s guardian may be appointed, and the child is made a separate party to the proceedings. They will also be represented by an independent solicitor who acts on the guardian’s instructions. Some judges will appoint a guardian of their own volition, but CAFCASS can make a request for one be appointed. It is also open to the parents to make their own representations to the court for the appointment of a children’s guardian. This is not a common direction, and only tends to happen in cases of a complex nature, such as where allegations of parental alienation have been made.
There has been a recent uptick in judges asking to meet with children during the course of private children proceedings, usually with CAFCASS being present. As the law currently stands, the judge cannot use their discussions with the child as evidence of a particular mindset, rather, the opportunity is there to ensure the child understands what is happening and feels included in the process.
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