When parents disagree about arrangements for their children, asking them may sound like the fairest solution, particularly where they have expressed a strong preference about where they wish to live or how often they want to see a parent.
The family court must listen to a child’s wishes and feelings, but what they want is one part of a wider assessment of their welfare. Depending upon the child’s age, understanding, and circumstances, their views may carry substantial weight, but they will not automatically determine the outcome.
The court’s task is therefore to understand the child’s experience without turning them into the judge of their parents.
The child’s welfare remains the court’s priority
Under the Children Act 1989, the child’s welfare is the court’s paramount consideration. As part of its wider assessment of the case, the court must consider the statutory welfare checklist, including the:
- Child’s ascertainable wishes and feelings, in light of their age and understanding
- Child’s physical, emotional, and educational needs
- Likely effect of a change in circumstances
- Background and relevant characteristics
- Any harm they have suffered or may be at risk of suffering
- Each parent’s ability to meet their needs
This means that a child’s preference is never considered in isolation. For example, a 12-year-old may say that they want to live with one parent because that home is closer to friends and has fewer rules. While the court will take the preference seriously, it will also examine schooling, stability, parental supervision, emotional security, and the child’s relationship with the other parent.
Listening to a child does not necessarily mean giving them exactly what they want; rather, it means ensuring that their perspective forms a genuine part of the decision.
Does the court always find out what the child wants?
The court will not always commission a detailed investigation of the child’s wishes in every case. There are some applications which are resolved at an early hearing because the parents reach an agreement or because the disputed issue is narrow. In addition, if the child is very young, they may not be capable of expressing a meaningful preference about future arrangements.
In contested cases, the court may direct CAFCASS or, less commonly in private proceedings, a local authority to prepare a report under section 7 of the Children Act 1989. A CAFCASS officer typically meets the child, usually away from the immediate pressure of the parents; its role is to advise the court independently about the child’s welfare rather than to represent either parent.
With a younger child, direct questions about future living arrangements may reveal very little. The officer may instead use age-appropriate activities, observe the child’s relationships, and consider how the child presents in each parent’s care. A CAFCASS assessment may also include speaking to parents and other relevant people, such as teachers or health professionals.
Age and maturity can make a considerable difference
The court looks at both age and understanding because children of the same age can have very different levels of maturity. For example, the views of a five-year-old may be valuable in helping the court understand their attachments, anxieties, and daily experience, but the child will rarely appreciate the longer-term consequences of a particular arrangement. A teenager who understands the family situation and gives consistent, carefully explained reasons is likely to have a much greater influence upon the outcome.
The court must also remain realistic; an order requiring an older teenager to live somewhere against their firmly held wishes may be extremely difficult to enforce and could damage family relationships. That practical reality can give a mature teenager’s preference considerable weight, although it does not give them an unrestricted choice.
Wishes, feelings, and best interests are not always the same
Children often express what feels safest or easiest at that moment, and although their wishes may reflect a genuine need, they may also be shaped by anxiety, loyalty, or a desire to avoid conflict.
A responsible assessment does not begin by assuming either that the child must be obeyed or that the child must have been manipulated. It asks why the child feels as they do and what their behaviour, experiences and relationships reveal.
Where domestic abuse, neglect, or another safeguarding concern is alleged, the court must investigate the risk rather than treating a child’s wish for contact as proof that contact is safe. Equally, a child’s reluctance should not be dismissed merely because the other parent alleges that they have been influenced.
How the court considers possible parental influence
CAFCASS will usually examine whether the child’s account appears to arise from their own experience. They may consider the language the child uses, the level of detail they can provide, whether their position has changed suddenly, and whether their description is consistent with other available information.
Adult-sounding phrases can raise questions, particularly where a young child repeats legal or other language they appear not to understand. However, the use of an unusual phrase does not itself prove coaching; a child may have overheard professionals, read messages or adopted words used frequently at home.
The court should therefore be cautious about accepting labels in place of evidence; alleging parental alienation does not prove that influence has occurred, just as alleging influence does not make every expressed concern unreliable.
Does the child speak directly to the judge?
Most children do not give evidence or attend an ordinary hearing about child arrangements because their views are usually communicated through CAFCASS, a social worker or, in a particularly complex case, a children’s guardian.
A judge may meet a child, especially an older child who would benefit from understanding the process or knowing that their views have been heard. Such a meeting is there to help the child understand what is happening and to reassure them that the judge is aware of their perspective.
A meeting with the judge must also be managed fairly, and the parents will need to understand the nature of the meeting. In some particularly difficult proceedings, the court may make the child a party to the proceedings. Here, a children’s guardian can then be appointed, with a solicitor acting for the child. This tends to be reserved for cases involving unusual complexity, entrenched conflict, or significant welfare concerns rather than routine disagreements.