Parents involved in separation or family law proceedings often hear the phrase “the child’s wishes and feelings”. It can sound reassuring, or alarming, depending on how it’s understood.
Many parents worry their child will be asked to choose between them, or that what a child says will automatically decide the outcome. In reality, wishes and feelings are only one part of a much bigger picture.
Melissa Jones, Associate Partner explains below what wishes and feelings mean in practice, how they are considered, and what parents should, and shouldn’t, expect.
What are “wishes and feelings”?
In England and Wales, when decisions are made about children, the court must consider a range of factors set out in the welfare checklist under the Children Act 1989.
One of those factors is: “the ascertainable wishes and feelings of the child concerned (considered in the light of their age and understanding)”
In simple terms, this means the court may take into account what a child says they want but only in a way that is appropriate for their age, maturity and understanding.
Do children get to decide what happens?
The short answer is, no. Children are not asked to make adult decisions, and they are not responsible for the outcome of a case.
The court does not ask children to “choose” between parents. Instead, it considers their views as part of an overall assessment of what is in their best interests.
Even where a child expresses a clear preference, the court must still consider:
- their emotional and physical needs
- their safety and welfare
- the ability of each parent to meet those needs
- the impact of any decision on the child
Wishes and feelings inform decisions and carry weight, but they do not determine them.
How are a child’s wishes and feelings found out?
In most cases, children do not speak directly to a judge, however depending on their age they may ask to do so.
Their wishes and feelings are usually gathered by CAFCASS (Children and Family Court Advisory and Support Service). A CAFCASS officer may:
- speak to the parents
- speak to the child in an age-appropriate way
- observe family dynamics
- prepare a report for the court
The aim is to understand the child’s experience, not to interrogate them or place pressure on them.
Does age matter?
Yes, very much so.
The weight given to a child’s wishes and feelings increases with their age and level of understanding. For example:
- very young children’s views may carry limited weight
- older children and teenagers may have their views given more consideration
- even with older children, wishes are not followed automatically
The court is always careful to consider whether a child’s views are:
- consistent
- freely expressed
- influenced by loyalty, conflicts or pressure
What parents should not do
It’s understandable for parents to want their child’s voice to be heard but certain actions can be harmful and counterproductive.
Parents should avoid:
- asking children what they want to tell professionals
- encouraging them to favour one parent
- sharing court details or legal arguments
- suggesting the child’s views will decide the outcome
Pressure, even subtle, can place children in an impossible emotional position.
What parents can do
Parents can support their child by:
- reassuring them they don’t have to choose
- letting them talk freely without judgement
- keeping adult conflict away from them
- supporting their relationship with the other parent where safe
Children cope best when they feel emotionally safe and free to love both parents.
Why wishes and feelings are handled carefully
Children’s views can change, sometimes quickly, depending on circumstances, emotions and loyalty concerns. A child might say what they think will:
- keep the peace
- protect one parent
- stop conflict
- please the adult they are with
That’s why professionals are trained to explore why a child feels a certain way, not just what they say.
Final thought
Wishes and feelings matter, but they are not a burden children should have to carry alone.
The family court system is designed to listen to children without placing responsibility on them. When parents support that process by reducing conflict and protecting children from pressure they help ensure decisions are made in a way that truly serves their child’s wellbeing.
At McAlister Family Law, we have the experience, compassion, and energy to achieve the best possible outcome for you. Please get in touch today, we’re here to help you.
