When parents go to court to deal with arrangements for their children a lot of issues and arguments are often raised. One of the issues that is raised a lot is that of what the child has said that they want. One, if not both, of the parents often tell the court that their child has told them what they want to happen. It could be that the child has voiced a view that they want to see their other parent more, don’t want to spend time with them overnight or don’t want to see them at all.
Parents understandably often see the view of the child as the most important factor however that is not always the case in court.
When considering a dispute about arrangements for children the court has to consider the matters contained within section 1 of the children Act 1989. This is referred to as the Welfare Checklist. It includes the child’s physical, emotional and educational needs; “his age, sex, background and any characteristics of his which the court considers relevant; and how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs.” It also includes the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding).
So the Court must consider the child’s ascertainable wishes and feelings and in doing so must bear in mind their age and understanding. However; how is that information obtained and how much weight does it carry?
The views of a child are usually obtained by a representative of the Children and Family Court Advisory and Support Service also known as Cafcass. A cafcass officer can be allocated to a case to report on the issues contact within the Welfare Checklist including where appropriate the wishes and feelings of the child.
Of course much depends on the age of the child. The views of a child who is too young to provide a view cannot be ascertained and so could not form part of the decision making. Some younger children could provide details of their wishes and feelings, however; the Court may take the view that they are too young to be able to properly understand the issues before the court and their views would not carry weight with the Court. The Court may in those circumstances conclude that obtaining the views of the child may not be of assistance.
Where it is concluded that the child’s views should be obtained, the court cannot rely on what the parents say the child has said. The child must be spoken to by someone independent. Cafcass officers are professionals able to deal with this issue sensitively and appropriately. As indicated above, there can be disputes about what a child is actually saying and Cafcass can help to resolve this issue by considering not only what the child is saying but also why they are saying it. For example one parent may be saying that the child has told them that they do not want to spend more time with the other parent whereas the other parents says that the child has told them that they do. There may be an element of the child telling each parent what they think they want to hear. Cafcass can take that into account and provide an analysis of not only what the child is saying but the underlying reasons why the child is taking a particular view.
Cases where there is an issue about what the child wants must therefore be dealt with carefully. It is not simply a case of the court being told what the chid has said and a lot of work must go into ascertaining those view in a child focussed way.
For advice and guidance on child matters during divorce and separation, please get in touch with Farleys’ family law team on 0845 287 0939 or submit your enquiry online.
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