Divorcing Family Trying To Divide Child Custody

A Child’s Wishes and Feelings in Children Act Proceedings

When proceedings concerning a child need to be issued at Court it can not only feel like an arduous task, but also overwhelming in an already worrying time. Here, Jemma Wentworth looks at how the wishes and feelings of a child are taken into consideration when a court decides what is in their best interest, and how factors such as age and understanding play a role in the decision-making process. 

Proceedings may be necessitated for various reasons, for example, the need to define the time that the child spends with both parents, to address a specific issue surrounding the child such as changing their name or deciding which school they should attend, or even to determining whether permission should be given for leaving the jurisdiction.

Within Children Act proceedings, and as part of the Court process, the child’s welfare is of paramount importance and various factors need to be taken into account. These factors form the ‘Welfare Checklist’ and one of these factors is the ascertainable wishes and feelings of the child concerned, considered in light of their age and understanding.

If there is a disagreement between parents or those with parental responsibility, the Court may be asked to make decisions. In doing so, the Courts overriding objective is what is in the child’s best interests? Often, the most effective way to ascertain this is to speak with the child. This is where the child’s age and understanding plays particular significance.

An organisation called CAFCASS, the Child and Family Court Advisory and Support Service, shall be appointed by the Court and the officer dealing with the case shall speak with the child as part of the assessment process. In so doing, consideration of the Welfare Checklist forms their role, and the officer shall give full consideration to each individual child’s ability to express their view in light of their age and understanding.

Children as young as four or five shall be spoken to by the CAFCASS officer, but it shall be fully appreciated that a child of such young age is clearly limited in terms of their ability to communicate or form a viewpoint on significant life matters. Generally speaking, the older a child becomes, the more their expressed views will have relevance to the decision-making process.

Generally speaking, by the time a child is approaching High School age their viewpoint will be competently and pragmatically considered by CAFCASS, who in turn will file a report to assist the Court.  Each case is determined on its own merit, but the important factor is not only a child’s age, but also their level of maturity and understanding of what is being proposed and how such decisions will affect them.  These are all considerations that will be considered by CAFCASS within their report for the Court.

However, it is important to remember that not every child is the same and every case will be different.  These issues need to be discussed openly by the parents with an understanding that just because a child may express a certain view, does not automatically mean that the Court will make an Order on that basis.  The voice of the child is critically important to the Court, and it is only right that the child should be able to say what they would wish the Court to order.  However, it is a balance of factors that the Court must take into account, and the ascertainable wishes and feelings of a child is only one of those factors.  The older the child, the more the Court will consider their wishes and feelings in their decision making.

It is also incredibly important for parents to be mindful that regardless of where their child is at, developmentally, intellectually and emotionally, it is the Court who ultimately makes the decisions and therefore providing a child with the burden of the decision making could have a negative impact upon them as for some children that burden of having to ‘choose’ between parents is ultimately too much for them to carry.

If parents, and those with parental responsibility, are unable to agree important decisions for a child’s future, the Family Court alongside the involvement of CAFCASS, may well be the last resort. Having the right support and the right legal advice is crucial.   Here at McAlister Family Law we have an experienced and large Children Team who will be able to navigate you through what can be a difficult and emotionally charged process.

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