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Following the breakdown of a relationship where children under the age of 16 are involved the issue of whom a child lives with and how much time they will spend with each parent may arise. Parents can apply to the court for a Child Arrangements Order (CAO) to resolve (through a decision made by the Judge) issues of contact and residence. There is a requirement to attend mediation prior to issuing a court application for a CAO however this may not be an option for parents living at a distance or where domestic abuse has been a feature of the relationship. Other exemptions may also apply.

One of the questions that most parents will ask in family proceedings concerning children is “Will my child/children’s views be considered?” It is important for parents to know that amongst a number of factors the court will take into consideration the wishes and feelings of children able to express these according to age and maturity. The Court’s primary concern in making decisions in contact or residence matters is the best interest of the child/children and not the wishes of the parent. Section 1(3) Children Act 1989 sets out the checklist of factors to be taken into account by the court and professionals involved in the process of resolving the circumstances of the children.

The ‘ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding)’ is not a determining factor but to be balanced within the Court’s discretion. It is possible that the court can overrule a child’s wishes: section1(1) Children Act 1989 provides that the court can overrule a child’s wishes regardless of age, if making a decision in accordance with their wishes would affect the child’s long term welfare. In the case of Re R (Residence Order) (2009) the court of appeal underlined the care that must be taken by the court in ensuring that they do not disregard the wishes of a mature child.

Useful guidance is given as to what weight is given to age of the child in case law:

In the appeal R (A Child) (2000) EWCA Civ 445, Lord Justice Rix highlighted the importance of listening to a child once he or she has reached the age of 10. He then went on to repeat the views of Dame Elizabeth Butler-Sloss P in the case of Re L (A Child) (Contact: Domestic Violence) (2000) where she quoted Contact and Domestic Violence–The Expert’s Court Report (2000) “the older the child the more seriously they should be viewed and the more insulting and discrediting to the child to have them ignored”.

Hilda Gadinala

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