Following the breakdown of a marriage, the court may need to decide which parent a child will live with. We look at what is taken into account and the age at which the court may allow a child to decide.

If you and your child’s other parent cannot agree on where your child should live, the next step is usually to consider mediation. The courts prefer that couples resolve matters between themselves wherever possible.

How do the courts decide on child arrangements?

The courts will ask the Children and Family Court Advisory and Support Service (Cafcass) to assist it in making a child arrangements order. Cafcass will spend time with the child and both parents, as well as any other family members living with either parent. A report can then be prepared for the court.

The court will always prioritise the best interests of the child. Its decision will be made after considering the criteria contained on the welfare checklist, which is set out in Section 1 of the Children Act 1989. These are as follows:

• The child’s wishes and feelings, in the light of their age and understanding
• Their physical, emotional and educational needs
• The likely effects of any change in circumstances
• The child’s age, sex, background and any other relevant characteristics
• Any harm the child has suffered or is at risk of suffering
• How capable each parent, and any other relevant person, is of meeting the child’s needs
• The range of powers the court has to make an order

What age can a child choose where to live?

From the age of 16, a child can legally decide not to see a parent. Child arrangement orders usually last until the age of 16, although in some cases they may last until 18.

The courts will give more weight to a child’s preferences the older they are and the more capable they are of understanding the implications of their choices. For example, if living with one parent means they would have to leave their school, the court will need to be sure that they are aware of the effect this will have.

The court will not give a child the choice of deciding where they live because it is not desirable for a child to have to select one parent over another. There is also a risk that a parent could attempt to influence the child’s decision.

Parents are also expected to try to facilitate contact with the other parent, as the courts believe that a meaningful relationship with both parents is preferable, unless there is evidence to the contrary.

Even if a child is reluctant to go to one parent’s home, the other parent should try to insist, provided there are no welfare concerns.

Parents are encouraged to try and understand the child’s point of view and why they might be expressing a preference. This is not always something relating to a parent. For example, they might want to live nearer their school or be in a particular place on the day when they have a scheduled activity.

When parents are able to be flexible, it can help a family to find the right new routine and assist the child in settling into this.

Contact us for further information or advice.

You can also complete an online enquiry form. One of the Wollens team will contact you as soon as they are available.