Mum or Dad – When can a child vote with their feet?

Have you ever wondered at what age a child can decide which parent to live with in case of separation? Typically, older children are asked for their preferences. However, it doesn’t mean younger children cannot have firm opinions on the matter. Let’s study the Children Act 1989 and the child’s voice to learn more about this matter.
 
The legal age for a child to decide which parent they want to live with
In the legal world, there is no fixed age to determine when a child can voice their preference regarding where they want to live. However, they cannot legally decide who they want to live with until they are 16 years of age. Once they reach that age, they can choose which parent to live with. The exception to this rule is a Court Order that mandates them to live with one parent until they are 17 or 18.

If you and your ex can agree on where the child will live, you can avoid costly and exhaustive court battles. But if you cannot do that and have applied for custody, the judge will take your child’s opinion into account as long as the court deems them to be at an age where they understand the situation, which is typically when they turn 12 or 13. However, the age bracket can vary from child to child. The court might also consider a child’s wishes under 12 but will give less weight to them.
 
The Child’s Welfare Checklist
In family law, the significant consideration is to come to a decision that serves the child’s best interest. It’s why the court and other involved professionals must refer to the following criteria of the welfare checklist in Section 1(3) Children Act 1989:
  • The discoverable wishes and feelings of the child
  • The child’s educational, physical, and emotional needs
  • How the court’s decision and impending lifestyle changes will affect the child
  • The child’s age, sex, background, and anything else that might be relevant
  • Any harm the child has already suffered or is at risk of suffering
  • The capability of the parents or guardians meeting the child’s needs
  • The court’s powers in the given proceedings
 
CAFCASS’s significant role
Children are not expected to go to court or speak to the lawyer or judge in these cases. It’s why the court obtains a report from the Family Court Advisory and Support Services (CAFCASS) that deems whether it’s appropriate to speak to the child or children of a broken family. They ensure to approach the topic with the utmost care and age-appropriate way. They will ask the child how they feel about their existing arrangement and if they would like to spend less or more time with either parent. The CAFCASS officer will keep the child’s age and responses in mind when giving their recommendation to the court.
 
Equal parenting rights
In cases in which the child was born after 1st December 2003, both parents were equal parental responsibilities. However, if the father is not named on the child’s birth certificate, he will not be held responsible for the child.
 
The responsibility can be recovered by entering a Parental Responsibility Agreement or applying to the court for a Parental Responsibility Order. Without parental responsibility, a father cannot have any say in their major life decisions, such as change of schools, child’s medical treatment and relocation, etc.
 
Seek family law solicitors
If you cannot reach an agreement with your ex about your child’s responsibility and whom they should live with, reach out to a reliable family law solicitor. An experienced solicitor will guide you to consider your child’s needs and how your on-going conflict could affect them.
 
They will encourage you to choose mediation, a process that will allow both parties to discuss child arrangements under the guidance of a specially trained mediator. It will enable them to reach a mutual decision about the primary caregiver and agree on how much time their child will spend with the non-resident parent. If mediation does not work, you can send a letter to the other party detailing the terms that suit you. If that does not work either, you will need to apply to the court for a Child Arrangement Order. The court will consider CAFCASS’s report and take the voice of the child into account. The ultimate decision it makes will be to serve the child’s best interest.
 
Salam Mediation will help you reach a decision about your child’s custody. We offer our expert mediation services to families to help them resolve financial, parental, and other conflicts. Our mediators provide confidential and impartial guidance to help smoothen the mediation process. 
 
A child’s decision can change their living situation
If the court orders the child to live with one parent, but the child wants to live with the other, the parents can agree on that outside of court. However, this comes with the parent’s risk with primary care changing their mind and keeping the child with them. In such cases, an application to the court will become vital to attain a revised court order.
 
The bottom line
The Children Act 1989 dictates that a child can willingly and legally leave a parent’s house without permission at 16. However, the parent will be responsible for them until they turn 18. It does not specify the age at which a child can decide which parent to live with.

The voice of the child

Family law mediation is a method of resolving the dispute between divorcing parties and finding the middle way to avoid further conflict without going to court. Family mediation is a non-contentious process that involves qualified neutral lawyers who help both parties reach a mutually agreed-upon resolution. This process helps both parties avoid escalating conflicts, especially when deciding the fate of the child they share.

Without mediation, the divorcing couple will end up in court, and they will likely fight over the child’s custody. Such an eventuality affects the child’s psychological, financial, and social wellbeing. Moreover, in a court proceeding, the division of parental responsibilities, childcare, etc., rests in the hands of the court instead of the divorcing parents.

Ideally, if the divorcing parties want to consider their child’s wellbeing, they should seek a child-inclusive mediation process, also known as the Voice of the Child.

The importance of the voice of the child
Listening to your child’s voice will help them feel like they are an integral part of the proceedings that will decide their future. It helps them feel more confident and boosts their self-worth by inculcating the idea that they are appreciated and valued for their expression, opinion, emotions, and choice. It’s why the Family Dispute Resolution Centre’s mediation programme emphasises child-inclusive mediation, also known as Voice of the Child.

The Family Justice Young People’s Board, a subgroup of the National Family Justice Board, also ensures that children are at the centre of all mediation proceedings and their wishes, feelings, and needs are considered by the parents and lawyers mediating the case. The FDR’s policy ensures child-inclusive mediation practices, including the appointment of an expert who has received relevant training in child-inclusive mediation practices.

This step is to ensure that the child’s voice is not stifled, and instead, it is at the centre of the proceedings, enabling the parents to make informed vital decisions regarding their child’s care.Under the Voice of the Children, young people aged ten and more are given the opportunity to make their voices heard in family law cases and mediation proceedings. It ensures that if a family has more than one child, each child’s voice is heard individually.

During the mediation, the child expert will work on behalf of the children, letting them narrate their opinions the way they want. When it comes to children with disabilities, these experts:

  • Hold individual meetings with the child and parents
  • Give parents feedback on their child’s opinion/progress
  • Represent the child at the mediation
  • Provide a response to the child following the FDR mediation to ensure the child understands the mediation contract reached upon by the parents
What happens in the individual meeting with the child?

Typically, the child-inclusive mediation expert conducts the meeting with the child in a neutral and safe space. They will let the child have their say in essential matters related to their care and the changing family situation. It might include conversations on how their current arrangement suits them, the contact they share with each parent, and how they would like their future to look like or what they’d expect from their parents.

At the end of the meeting, the child will agree on the messages they want the expert to share with the family mediator. Their wishes will be heard in the mediating gathering, helping their parents make the best decision for them. This entire process doesn’t just ensure that the voice of the child is heard, but it also gives them the respect they deserve as individuals who will be most affected by the decisions of their parents.

Further reading:
Government website: Divorce ‘blame game’ to end
Resolution: Get ready for no-fault divorce