Is there a minimum age for a child’s wishes to be considered in a family law case?
As a practising family lawyer, I am often asked when the courts will take into account what a child says they want or don’t want in family disputes. It’s a good question. So many cases centre around children after all: where they’ll live and with which parent, how much time they’ll spend with the other parent, whether letting their mother or father take them to live abroad would or wouldn’t be a good idea. The list goes on. Surely what the children themselves think matters to the courts? And of course, it does – as long as the court is confident the child is mature enough to fully understand the family situation.
But, contrary to common belief, there is no specific age a child must reach in English law for their “wishes and feelings” to be automatically recognised and considered. What the law actually says is that a child’s wishes must be considered in every case when a court is determining what is ultimately in their best interests, but only to the extent that those wishes and feelings are ascertainable. The court will consider each child’s individual levels of maturity and understanding, and these will, of course, not be wholly determined by their age.
Reports provided by the Children and Family Court Advisory and Support Service (Cafcass) can help judges decide how much weight to place on a child’s stated wishes and feelings in a particular case. Not all children are interviewed by Cafcass officers or independent professionals if an application is brought to court. But if there is an argument to say a child’s wishes and feelings should be explored and considered then Judges may ask Cafcass to speak to the child. Cafcass are often referred to as the ‘eyes and the ears’ of the Family Court for this reason.
What to do if you want to relocate with your child: a checklist
In family law, moving a significant distance with your child is called ‘relocation’. This can be within the jurisdiction of England and Wales, to other parts of the UK or abroad. If the other parent has ‘parental responsibility’ (the legal status of parent) and is actively involved in your child’s life, relocation will naturally interfere with their ability to spend time with their son or daughter. So, if you want to relocate, you will need the other parent’s permission and cooperation – or a court order if you cannot reach an agreement.
Naturally, applying for a court order is unlikely to improve your relationship with your former partner so should be the option of last resort. But if you do reach that stage, then preparation really is key. Many of these applications fail at the first hurdle for a lack of a detailed and comprehensive plan for the relocation. These applications cannot be made half-heartedly and if you are considering a relocation then you need to put in the groundwork and prepare your case and proposals before approaching the other parent in the first place – and certainly before making a court application. Of course, there is only so much planning one can undertake until such time as the green light is given – or not given – for the relocation, either by court order or the other parents’ consent. But this does not justify a lack of preparation before presenting your application.
As a minimum the court will expect consideration to have been given to the following before considering a relocation application:
The reasons for the move
This may be obvious in some cases – for example, a new job – but in others it may not be as clear or straightforward. If you want to relocate your child then the court will expect you to have a good reason for doing so.
The financial situation
You will need to reassure the court that you have a financial plan in place to ensure the relocation can take place. For example, will you rent at first or buy a property straightaway? How long would it take you to secure suitable housing? You will also need to demonstrate what you will do for work, and the court would critically assess whether your plans are realistic or just ‘pie in the sky’.
Doctors, dentists and hospitals
The court will need to be satisfied that the child will have appropriate healthcare should the relocation happen. This may be particularly relevant to a relocation abroad – what public healthcare provision would the child be eligible for?
Education
Which school will you send the child to, and is it likely they would have a place should your relocation application be successful? From my experience most Judges expect the relocating parent to have visited the proposed location and school to find out more before pursuing the application.
Immigration rules
For relocation abroad, you will need to be able to demonstrate that both you and the child have the legal right to live, work and access public services in that country.
Contact
You will need to demonstrate that you have considered the practicalities of the other parent spending time with the child should the court grant your application. These proposals must be realistic.
Those are the fundamentals: a basic checklist of the key issues a relocating parent will need to address before bringing their court application.
family reasons and has been at Major Family Law ever since. Sam works in all areas of family law, including divorce, financial relief and protection from domestic abuse, but his real area of expertise lies in cases involving children: everything from where a child should live following divorce or separation to urgent efforts to protect them from harm.