The wishes of the child
An application by a parent for a residence or other Children Act order will very often involve a difficult balancing act by the court. It can be a delicately weighed exercise for the judge who must make the decision and this will be particularly the case when both parents are able to offer a reasonable standard of care. A deciding question may often be the wishes of the Child if he or she is of sufficient age and maturity.
There are clear guidelines which will be followed when deciding the weight to be given to a child’s wishes and feelings. Age is an important factor but not the only one. Understanding is equally important and this is where difficulties may arise. One child of say 10 years old may have a totally different understanding of the situation from another 10-year-old. It may well be that the expressed wishes and feelings are irrational and should not therefore be taken into consideration. In some cases what is said by a Child may be the result of coaching from one parent in an attempt to alienate the child from the other parent. All this will require careful investigation by the court and the professionals who advise.
Maturity and wishes
The older and more mature a child becomes, the more notice will be taken of his or her wishes. Dame Butler Sloss as President of the Family Division of the High Court said in the case of Re S which dealt with two children aged 13 and 11:
‘nobody should dictate to children of this age, because one is dealing with their emotions, their lives and they are not packages to be moved around. They are people entitled to be treated with respect’
Decisions being made about changes to where children are to live are often taken without due weight being given to the child’s wishes. This was made particularly apparent in the recent but long-running case of Re A.
The case of Re A started life many years ago as a contact order application by the father. Notwithstanding orders made for contact the mother would not comply and some 14 court hearings resulted concerning contact. When it became apparent that whatever order the court should make ordering contact would not be complied with, the judge ordered that the child (who was a boy aged eight) should move to live with his father. This was against the child’s wishes and feelings and based solely on the mother’s behaviour and refusal to co-operate with contact.
It was accepted by the court that a move to the father would result in some upset to the child but this was considered to be short-term and that he would soon settle down at his father’s home. This proved not to be the case. The boy suffered intensely from the move and was desperate to return to live with his mother again. From a happy normal Child, he turned into a lonely friendless boy who was deeply unhappy. Eventually following a contact stay with his mother he refused to return back to his father. He threatened to take his own life if he was forced to return and medical opinion showed that he was serious in this.
The court eventually allowed him to remain living with his mother and he was a different boy. Further reports spoke of the profound and negative affect on his development by having his wishes ignored and irreparable harm that was being done. Eventually the father agreed to him returning to live with his mother.
Children are fragile creatures with developing personalities and beliefs about the world. They will often have strongly held wishes which should not be disregarded. Decisions made by authority as to where they should live will have a long-lasting effect upon them. The consequences of ignoring deeply held beliefs of the child is obvious and should not be ignored at the risk of dire consequences.