Separating parents will often question the extent to which their child’s views will be taken into account throughout family law proceedings. There is no simple answer to this – factors such as the child’s age, maturity, and any risks associated with the outcome will play a significant role in how much weight is given to their wishes and feelings. Ultimately, the court will aim to balance the child’s best interests with these factors, ensuring that their voice is heard in a way that is appropriate and protective.
A child’s wishes: What weight should they carry?
Section 1(3) of the children Act 1989 outlines the factors the court must consider when making an order relating to a child. The very first factor in the list is the following:
(a)the ascertainable wishes and feelings of the child concerned (considered in the light of their age and understanding);
It is clear that children’s views must always be considered when determining what outcome is in their best interests. However, it is important to differentiate between a child’s ascertainable wishes and feelings, and those that have been explicitly expressed. It is necessary to explore why a child feels or expresses themselves in a certain way. This is particularly important in instances where a parent may have been unfairly influencing or coaching their child in order to try and achieve a more favourable outcome in the case.
This issue was considered in detail in Re L (a child) [2019] EWHC 867 (Fam). The court took time to consider the specific meaning of ascertainable. There was consideration as to how to assess the child’s wishes when there were doubts about the genuineness and reliability of those views, and the extent of parental influence upon them. The Judge concluded that giving weight to a child’s voice is a fundamental principle which will be applicable to every case. However, the manner and degree to which this is done will vary depending on the specific circumstances of the matter.
Furthermore, the recent case of Mother v Father [2024] EWFC 252 (B) also considered this topic. The children had very ‘forceful and negative’ views in this case, so much so that the Court decided they could not be ignored. The children were given an opportunity to write to the court setting out their views, and this letter was paramount in deciding the final Order for the children. The Judge decided it would be harmful for the children to be involved with further proceedings unless there was a clear change in their views – highlighting the importance of honouring their wishes and feelings in order to safeguard their welfare and uphold their best interests.
What does this mean for parents?
These cases highlight the complexities involved in balancing a child’s right to be heard with the need to protect their emotional wellbeing. It is clear that the weight a child’s voice is given in proceedings will vary depending on the specific circumstances of the case. While it is a fundamental principle for a child’s preferences to be heard, the court will always consider this in the full context of the case and prioritise their overall welfare. For solicitors, this highlights the need for careful case preparation and consideration of expert reports, such as from child psychologists and Cafcass, to assess the emotional impact of decisions.
Parents should be aware that even if their child expresses a strong preference, the court may still choose an alternative arrangement if it is in the child’s best interests to do so. This is particularly relevant in high-conflict cases, where the child’s emotional well-being must be carefully considered and prioritised.
If you have an enquiry regarding any of the issues raised in this blog, please email or call our Family Law team today on 0113 227 9285.
Associate Solicitor
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Josie Kirk
