Deciding where a child should live after a separation or divorce, is a difficult and important decision, that will mostly affect the child.
After separating the child of the relationship may feel that they have two very separate homes. This can be complicated to navigate, especially if the children’s interests are not put first.
In this blog we look at what age a child can choose which parent to live with and what you can do when this issue arises.
What age can a child decide to move from one parent to the other?
Legally, a child cannot choose where they live until they are 16. Until then, those with parental responsibility for the child decide where they live. In some circumstances, this age is extended to 17 or 18 where there is a child arrangements order from the court in place which specifies this.
However, children don’t necessarily follow what the law says. Parents may find that from a young age, children express views about where they want to live and as they get older, they may even start voting with their feet.
It is important that at any age, the child feels listened to and understood by their parents.
There could be many reasons why a child may want to live in a different house, some of which have nothing to do with the parent! For example, it may be that the child wants to be closer to their best friend near dad’s house or perhaps the child doesn’t like the spag bol that mum cooks.
What is motivating the child’s views?
Understanding what is motivating the child’s views will help inform what decisions should be made about where they live. Ideally, separated parents will work together to listen to the child’s views, understand the reasons why they may feel as they do and come to a solution together. This may be trialling a change to contact arrangements or, if that isn’t workable, trying to allay the worries that may lead to the child wanting to live or spend time more in one house.
What if you can’t agree?
If it’s not possible for the parents to agree on where the child should live, then they may wish to engage a child inclusive mediator. A child inclusive mediator will speak to both parents about the situation, but they will also obtain the views of the child themselves and, if given permission by the child, feed that into the mediation sessions with the parents. In this way, both parents will hear what the child has to say.
Ultimately, if two parents can’t agree between them who the child will live with then they may need to engage solicitors to assist their discussions or ultimately make an application to court. If court were needed to determine the issue, then the paramount consideration is the welfare of the child. To assess this, they are obliged to consider the Welfare Checklist (under section 1 of the Children Act 1989). The first thing on the Welfare Checklist is the ascertainable wishes and feelings of the child concerned, considered in light of their age and understanding.
Are the children’s wishes taken into account?
There’s no strict definition in law of when a child’s wishes and feelings will be listened to, but the current guidance is that the views of children over the age of 10 should always be sought. That isn’t to say a child under the age of 10 will be ignored, but it’s likely to hold less weight. Within court proceedings, if the court deems it appropriate and needed, it will be the role of the CAFCASS officer (the court appointed social worker from the Children and Family Court Advisory Support Service) to speak to the child and seek their views in an age-appropriate way.
The child’s views will be fed into the CAFCASS officer’s report to the court which ultimately will contain recommendations on where the child should live. The court is entitled not to follow these recommendations and/or the wishes of the child. There are other considerations under the Welfare Checklist they are also obliged to consider, such as the child’s physical and emotional needs, and how capable each parent is of meeting those needs. These will also be considered in the CAFCASS officer’s report.
Children should be listened to at any age and their views considered, but ultimately up to parent to decide who they live with until they are legally able to decide otherwise. It’s hoped that separated parents can reach a resolution together before requiring the court’s involvement.
Our family and children lawyers are experienced in dealing with disputes around children arrangements and separation and divorce. If you need advice, speak to us today.
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