To discuss children’s arrangements or anything else related to divorce and separation, our Family Law Team is available on 01225 462871. Alternatively, you can contact them by email.
This question is most often asked in relation to older children, but younger ones too may have a firm opinion on where they would like to live.
Legally, from the age of 16, a child can decide with which parent they would like to live, although this may extend to 17 or 18 if there is already a child arrangement order in place specifying where they should live. If the child is under 16, the decision is a joint one for the parents, but if they cannot agree, it is a matter for the court.
In family law proceedings, the overriding consideration is “What is in the best interests of the child?” In considering this question, the court and other professionals involved in the process must have regard to the criteria forming the welfare checklist contained in Section 1(3) Children Act 1989. These criteria are:
- The ascertainable wishes and feelings of the child.
- The child’s physical, emotional and educational needs.
- The likely effect on the child if circumstances changed as a result of the court’s decision.
- The child’s age, sex, backgrounds and any other characteristics which will be relevant to the court’s decision.
- Any harm the child has suffered or maybe at risk of suffering.
- The capability of the child’s parents (or any other person the courts find relevant) at meeting the child’s needs.
- The powers available to the court in the given proceedings.
The role of CAFCASS
Children are not expected to come to court and it would be exceptionally rare for them to speak to the judge or the lawyers in the case. Before reaching a decision, the court is therefore likely to first obtain a report from the Family Court Advisory and Support Service (CAFCASS). Depending on the circumstances, the CAFCASS officer may decide it is appropriate to speak to the child or children. In doing so, the conversation will be approached with great care and in an age-appropriate manner. Typically, children will be asked how they feel about any existing arrangements and whether they would like to spend more or less time with either parent.
In making recommendations to the court for child arrangements, the CAFCASS officer will have in mind the child’s age and their responses to questions. Generally, the older the child, the more weight will be given to their views, but the other criteria in the welfare checklist should not be overlooked.
Agreeing child arrangements out of court
For most parents, whatever their differences, attempting to agree on child arrangements without involving the court is essential. The question then arises as to whether and to what extent they should consider their child’s views.
Parents should understand that, however well-intentioned, if the child’s involvement is not approached in the right way, it can be problematic. It can cause the child anxiety and be emotionally damaging if they feel they are being asked to choose between parents. If a child feels torn, they may be inclined to tell each parent what they think they want to hear, making a difficult situation much worse.
Yet, it is clear that children often believe their views are disregarded, if indeed they are given a voice at all. Research has found that involving children in decision making can be beneficial to their future relationship with both parents. For instance, one study showed that if the child was involved, they were far more likely to rate their contact experience with the non-resident parent positively.
If the child is to be involved, each parent should as far as possible, avoid discussion on the subject in the absence of the other parent. And of course, both parents should do their level best to leave any personal animosity outside the room. Parents often find it very helpful to involve a neutral third party. With child-inclusive mediation, a qualified family mediator can meet directly with the child with both parents’ consent. They can discuss any ideas the child might have about future arrangements and what is or is not working, which can then be fed back to the parents by the mediator if the child consents. This process usually proves far less stressful for the child than having such a difficult conversation in their parents’ presence.