This week I had the opportunity to attend a conference in relation to a children matter. Unfortunately, when couples separate, issues in respect of the children arise. Such matters are fraught with emotion and can be particularly hard to resolve. Ultimately, there are many ways to parent children and views often conflict.
A regular consequence of such disputes is that the children will be detrimentally affected. The Court recognises that this is the case and the very principles that guide the Courts, illustrate the point further. The key underlying principle, contained in Section 1(1) of the Children Act 1989 is that when a Court determines any question with respect to:
- The upbringing of the child; or
- The administration of a child’s property or the application of any income arising from it,
The child’s welfare shall be the Court’s primary consideration.
The Children Act then refers the Court to Section 1(3) to the ‘Welfare Checklist’ of which the Court must have regard to when exercising its powers to make a Section 8 Order, such as contact. Ultimately, the Order made must be in the best interests of the child. However, as one can easily imagine, what is in the best interests of the child/children will differ dramatically from parent to parent and possible even from Court to Court. There is an abundance of case law available to the Court to further assist their decisions in respect of each of the factors contained within the Welfare Checklist. However, I chose today to focus on Section 1(3)(a) Wishes and feelings of the child. Indeed, the case that I was working on today did exactly that.
The age of the child is most obviously an important aspect of this factor; however it is not the only aspect to be considered. We all know that sometimes children are wiser beyond their years and sometimes they are extremely immature. All children differ and so the wording of Section 1(3)(a) guides Judges to consider the wishes of the child in light of their age and understanding. The Court will, alongside considering the child’s maturity, also take into account the likelihood that they have been influenced by the other parties.
It must be noted, that although the children’s wishes can be influential they are not decisive. The weight to be attached to what the children want will be at the Court’s discretion and will not always take precedence. This is because, unfortunately, the child may not have the requisite maturity or life experience to know what is in their best interests. I know that there were many times when I was younger, that I thought I knew what was best for me but was proved wrong by my mother, teachers and the like.
For example, in Re C (A Minor) (Care: Child’s Wishes)  1FLR 832 it was held that a 13 year old girl was too young to make decisions as to who she would live with. In this case, she wished to live with her father but the Court decided that the burden of making decisions about her future was too large. However, this case can then be contrasted with Re S (Contact: Children’s views)  1 FLR 1156 the wishes of children who were aged between 12 and 16 were all respected, when the Court was faced with the task of deciding upon contact.
What becomes clear from the case law, is that each case must be judged on its own merits. The Children Act 1989 and in particular, the Welfare Checklist affords the Court’s with wide discretion. This can often infuriate clients as there are unfortunately no certainties. What is in the best interest of the child is not always clear and as such, can be a matter of opinion. On the other hand, sometimes it is abundantly clear. However, the Court will only make an Order if to do so is in the best interest of the child that would be subject to it. This is another principle of the Children Act 1989, namely, the ‘no order’ principle.
Unfortunately, I believe that the wishes of the children involved in the case I was working on, will hold little weight as they were too young to fully understand the situation. That being said, I do believe that children’s voices matter. Children are often more astute than we think! It is very unlikely that there will ever be a uniformed method of deciding what is in the best interests of a child and I am sure that the case law in respect of the children’s wishes will continue to grow …… and also conflict! I would be interested to know the readers perspective. Should children be able to decide who they should live with? How much contact they have with the absent parent? Or is that simply too much for a child to have to decide?