Child law

The relevance of the child’s wishes in disputes over child arrangements

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Walker Family Law
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The relevance of the child’s wishes in disputes over child arrangements

Very often in disputes between parents over arrangements for a child the child will have a useful input, which can be an important factor when considering what the best arrangements should be. But when and how are the child’s wishes taken into account by the court?

The Welfare Checklist

When considering arrangements for a child the court must take into account a set of factors known as the “welfare checklist“. Amongst those factors is the ascertainable wishes of the child, having regard to the child’s age and understanding.

Note those words “having regard to the child’s age and understanding“. The child’s stated wishes will not always be taken into account, and will not necessarily be decisive. It depends upon how well the child understands the issues involved.

There is no cut-off age above which the court will take the child’s wishes into account, or consider those wishes to be decisive. However, generally speaking the older the child the more likely that the court is to take his or her wishes into account. The court is unlikely to pay much, if any, attention to the wishes of a very young child, it will pay more attention to an older child, and once the child reaches teenage years then their wishes are likely, but not certain, to be decisive.

As to how the child’s wishes are taken into account, the usual way is via a welfare officer appointed by the court to investigate the case. The wishes of the child is one of the things the welfare officer will try to ascertain, usually by speaking to the child. The welfare officer will then report their findings back to the court.

In some cases the judge will speak to the child directly, but this is quite unusual, as it is thought that this can be quite traumatic for the child.

On other occasions, as we will see in a moment, the child is made a party to the proceedings, in which case they can file evidence themselves.

The child’s wishes in action

A recent case demonstrates how a child’s wishes can have a bearing upon the outcome of the case.

The case concerned a mother’s application for the summary return of a 13 year old child to Poland.

In December 2016 the child’s father wrongfully removed the child from her mother’s care in Poland, where she was habitually resident. In January this year the mother issued her application for the child’s return to Poland.

The child was made a party to the proceedings, and she instructed a solicitor to file a witness statement on her behalf. In the statement she made it quite clear that, whilst she loved both her parents and wanted to maintain her relationship with both of them, she was adamant that she wanted to remain in this country. She also said that, even if so ordered, she would not return to Poland, as she could not cope with or bear a life there.

The judge hearing the case, Mrs Justice Gwynneth Knowles, said that the child was “a very intelligent young person who has considerable insight into her predicament”.

In the circumstances the mother conceded that, in the light of the child’s objections to a return to Poland, her application could not succeed, even though the father had acted wrongfully. She therefore invited the court to give her permission to withdraw the application, and the court granted permission.

Now it may be that if the mother had proceeded with the case then the court would have ruled against her in any event, even if the child was not opposed to the return. However, in the light of the child’s wishes, her age and clear understanding, it was obvious that the court was not going to rule in the mother’s favour, as the child’s wishes would be the overriding factor.

You can read the full judgment in the case here.