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The wishes of the child by John Bolch

I have seen some pretty misleading headlines following yesterday’s Supreme Court decision in Re LC (Children), suggesting that children will always be allowed to decide with which parent they should live.

That is not, of course, the case. Re LC concerned the issue of the children’s habitual residence in connection with an international child abduction dispute. It said that in deciding where a child is habitually resident the “state of mind” of the child (or, at least, of older children) should be taken into account.

Re LC did not say that in such cases the child can decide with which parent they should live, and it is certainly not authority for saying that children can decide with which parent they should live in all cases where their parents have separated.

So, leaving aside the complexities of child abduction and habitual residence, what does the law say regarding the wishes of the child, and how they should be taken into account?

The starting point is the so-called ‘welfare checklist’ in section 1(3) of the Children Act 1989. This sets out the factors to which the court should pay particular attention when considering whether to make an order concerning children. The first item on the checklist is “the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding)”.

How will the court ascertain the wishes of the child? Well, normally a Cafcass officer will be appointed to investigate the case and that investigation will include the wishes of the child, if any. The Cafcass officer will report back to the court. Sometimes, the judge will ascertain the child’s wishes by speaking to them directly, but this is comparatively rare.

It is important to bear in mind the words in brackets in the checklist. The court will not normally take into account the wishes of very young or immature children, who have little understanding of their situation. There is no ‘age cut-off’ here – each child will be considered individually.

The child’s age and understanding will also have a bearing on the weight the courts will give to their wishes. Accordingly, the wishes of a younger child may not have much effect upon the decision of the court, but the wishes of a much older child may even be decisive.

Consideration of children’s wishes has been the subject of considerable debate.

On the one hand, as a signatory to the UN Convention on the Rights of the Child, this country is obliged (by Article 12) to allow children to express their views freely, to give those views due weight and to provide children with the opportunity to be heard in any judicial proceedings affecting them. This obligation is met by our law, as seen above.

On the other hand, there are those who caution against stressing the importance of children’s wishes. They feel that this may place too great a burden on the child and enable them to manipulate the parents. Obviously, children may just say what they think will please their parents, and they may be influenced by one of the parents.

Against this, it must be borne in mind that ignoring the clear wishes of a child may be damaging to them, and sometimes it will just be impossible to impose upon them a decision with which they don’t agree, although such a situation is unusual.

The wishes of the child are, and will remain, a factor in deciding children’s cases. Nothing has changed in that regard. The court will take those wishes into account but in most cases have the final say.

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers, with his content now supporting our divorce lawyers and child custody lawyers

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