When can my child decide on contact? The strict answer to this question is on the child’s 16th birthday. The Children Act allows for Orders to be made in relation to children in private law proceedings, up until the age of 16 (18 in exceptional circumstances, which I will address in a later article).
The Children Act
Given therefore that no Children Act Orders are made (other than in exceptional circumstances), that last beyond the age of 16, that is the age at which a child can decide upon contact and indeed with which parent they would wish to live.
However, the Children Act 1989 contains in a Section 1 a checklist which Courts use for the purposes of determining what is the best outcome for a child (see later article where I deal with the checklist in its entirety) and within that checklist there is a requirement that a Court should take into account a child’s views and wishes insofar as they can be ascertained.
The first thing to be drawn from this is that the Court shall take into account the children’s views and wishes, it is not a requirement that the Court shall follow those views and wishes as presented. In effect, a Court can give consideration to what a child’s views and wishes are but determine that in fact the child’s best interest is served by an alternative arrangement.
The age of the child
For example, if a ten year old child without good reason was suddenly to decide they no longer wish to go to school and that they have had enough of education, it is highly unlikely that either a parent or indeed a Court would follow that child’s views and wishes.
Clearly a child’s age can have an impact on how much “weight” is given to the child’s views and wishes as the younger a child, the more difficult it will be for a child to be able to provide a reasoned decision in regards to a specific question asked of them.
Very young children, babies etc of course cannot articulate a specific view and then the Court will either apply general principles such as “generally a child would want to have a good relationship with both parents”, or may look at a child’s behaviours and responses to certain circumstances to try and establish what that child’s views and wishes might be.
The older a child becomes and the more articulate they are, the easier it may be to establish what the child’s views and wishes are. However, of course this can also be dependent upon the complexity of the decision that the child is being asked to make and their ability to reason through the various impacts and effects that such a decision might have.
Again, for example, if a ten year old child was asked whether they would like to move to Orlando in Florida (right next to Disney World) they might be supportive of this idea without taking into account the potential impact of loss of contact with wider family members, change in educational system etc. However if that same ten year old child was asked whether they wished to have an extra hour with a parent during contact in order to go for something to eat, that is a much more simple and straightforward decision for that child to be able to comprehend and determine.
The nature of the child
The nature of the particular child also has to be given consideration too in determining what weight to give to their views. Certainly some children are considered to be far more streetwise and capable of understanding and making decisions than perhaps another child of a same age but perhaps of a more naïve personality.
Caution must also be taken in giving consideration to a child’s views as to what matters might have influenced those decisions, whether they be siblings, school friends and/or indeed parents.
I am absolutely certain that in a number of cases which I have conducted where one parent contends the child says to them that they don’t want to go for contact, that they are telling the truth but on the other hand, where the other parent says when they have contact with the child they are saying they don’t want to go home, they are also telling the truth. Children are very astute to their parent’s views and moods and can be conscious that it is simpler for them to reflect what that parent would like them to say as being the easiest way to avoid conflict with their own parents.
The decision of the Court
Clearly the older a child gets and the closer they come to 16, the more “weight” the Court is likely to give to that child’s views and wishes.
Given that the Children Act confirms that orders complete at age 16, a Court is far more likely to give “significant weight” to a clearly considered view of a 15 year old than they are to that of a 10 year old as the length of time for which an Order is going to be effective is going to be significantly less.
Given that the Court itself only identifies that a child’s wishes and views are to be taken into consideration and are not necessarily determinative of an outcome, so should parents give that same caution to any specified view and wish of the child.
The decision of the parents
Ultimately it is for the parent to make decisions for their child which they consider to be in that child’s best interests.
An example might be if a child states that they no longer wish to go to school, the parent will decide whether it is appropriate for that child to attend school or not. However, that parent may also explore any reasons why the child does not want to go to school and thereafter make appropriate decisions based around not only the child’s views but also wider consideration as to the child’s best interests, ie if the child does not want to return to that school because they are being bullied and the parent does not feel that can be resolved, the parent might make a decision to either change schools or determine that it is appropriate to home educate.
However, as indicated it is not the child’s view that is determinative but a significant factor to be taken into account.
It can be an uncomfortable position to be in at Court for a parent to be saying that they are highly supportive of the concept of contact with another parent but unfortunately cannot allow for that contact to take place as the child does not wish to have that contact. In effect, this may be seen as an aggregation of parental responsibility if there is no other reason or justification given for why that child does not wish to have contact and why the parent cannot override that decision in the child’s best interest. In circumstances where there are significant disputes over contact, it is a far more comfortable position for a parent to be in, to be able to say I do not agree that this is the appropriate arrangement for my child and these are the reasons which include my child’s own wishes which I have taken into account and giving consideration to all the other factors surrounding that, believe it is appropriate to support my child’s view.
Indeed it is entirely possible and reasonable for a parent to take an opposite view to that presented by their child and present justifiable reasons to the Court why that child’s views and wishes should be overridden, ie a child may very much wish to have and maintain a relationship with an absent parent and articulate that clearly but for other reasons such as concerns over drug or alcohol use which the child simply does not understand and/or has not been advised about for good reason, may mean that that child’s views and wishes do not meet their best interest.
Maintenance of contact between children and separated parents
It is also right to identify that currently Courts are taking a fairly strong stance on the requirements for maintenance of contact between children and separated parents. Within a recent case, a Court identified that they expected the primary care parent to promote support and require contact to take place utilising the example that if the child may be punished by grounding, removal of electronic devices etc, until such stage as the child complies with the parent’s reasonable requirement that they undertake homework then those same principles should be applied to requiring a child to maintain a relationship with the other parent even if they were articulating they do not wish to do so.
When can my child decide on contact?
In conclusion therefore, the simple response to the answer when can my children decide whether they wish to have contact or not is aged 16. Below that age the older the child is, the more weight will be given to their views by the Court but there must be a wider more holistic consideration as to the reasons, justifications and benefits and advantages of ultimately deciding whether to comply with a child’s views and wishes rather than simply accepting them at face value.
If you have asked any questions about when your child can determine whether they wish to attend for contact and would now like more information on the different types of proceedings relating to children, please get in touch and we would be happy to assist you.
This article is part of a series on Private Family Law and Children Law proceedings. If you would like to learn more about the rules around parental responsibility, contact, holidays and arrangements for separated parents, please click here for the full series.
The next article in this series of private family law will address parental responsibility, what is it, do I have it, how do I get it?