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At what age will a court let children decide?

  • stopgo
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15 May 15 #461410 by stopgo
Topic started by stopgo
Hi,

Can I get opinions on what age children need to be before a court will simply take their wishes on who they live with?

My two girls have always been closer to me than their mother, and since me and my wife split the girls have said they want more time with me. When my ex tried to restrict the girls'' time with me I applied for a court order for 50:50; she then put in a cross-application that the girls would only see me every other weekend! I fought in court and managed to get nearly 50:50 (although there is still slightly more time with their mother than with me). This was just over a year ago. The girls haven''t stopped saying they want more time with me: sometimes it''s “at least equal time”; sometimes it''s “I want to live mainly with you” etc.

Before the court hearing a year ago, I requested that CAFCASS speak to the girls because their views were so strong and clear. My ex opposed this (I believe, because she knew that the girls would say they wanted to live mainly with me), and the court decided they were too young to speak to CAFCASS (they were 6 and 4 at the time).

My eldest in particular – now seven-and-a-half – has said several times that she want to be involved in the decisions about where she spends her time and has asked if there is someone she can talk to, to tell them what she wants.

My ex acknowledges that the girls are upset that they still spend more time with her than with me, and that they say it is unfair, but she refuses to agree to any change in the balance (I think she believes that I am stoking the girls with dissatisfaction; or perhaps she is simply putting her own wish to have the children with her ahead of the children''s own feelings).

I am reluctant to embark on more court activity (I''ve been told it will require a whole new court order application, rather than simply applying for a small modification to the balance of the existing court order). But after two years of asking, the girls are not going to change their minds on this, and it is causing them distress, so something needs to happen.

My biggest fear in going to court again is that their mother will again oppose them talking to CAFCASS; that the judge will think they are still too young to decide for themselves; and that somehow their mother will end up taking them for more time than she currently has. This would devastate the girls.

So: at aged 7, is a court likely to ask CAFCASS to listen to her views, and take them seriously?

Thanks.

  • Fiona
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15 May 15 #461418 by Fiona
Reply from Fiona
Good arrangements for children depends on separated parents working together, or at least not against each other. Going to court tends to leave parents feeling resentful and resistant and that makes working together difficult if not impossible. There is always a risk that the outcome of a court application to increase the amount of time the children live you is a reduction. Therefore if a change of arrangements cannot be agreed it''s worth considering mediation to find a way forward that meets the needs of the children. In any event in most cases there is now a legal requirement that the applicant to a Child Arrangement Order arranges a Mediation Information and Assessment Meeting before the court will hear a case.

Children often tell separated parents what they think the parents want to hear and CAFCASS something different. Although most children tell professionals they love both parents and want to spend time with them both 50:50 equal parenting time is an adult concept rather than the children''s. Sometimes children miss a parent and say they want the arrangement to change only to miss the other parent and want to change back. The problem is changing the arrangement can be destabilising . It isn''t particularly healthy for children to focus on the split of time they spend with parents because they need to focus on spending time and developing relations with their friends instead so eventually they can become independent.

Children''s views are considered in light of their age and maturity. At 7 years of age children are unlikely to understand the full implications of a decision and it isn''t until they reach the age of about 12 that their views carry considerable weight. Even then their views should be evaluated against the overall circumstances and family background, and decisions made to meet the needs of children.

The views of children are just one factor in the Welfare Checklist (s1 Children Act 1989) that the court must consider. There are several others and the welfare of children is paramount. For example a twelve year old could say they want to live with a permissive parent who allows them to stay out drinking late on a school night. Clearly the needs of the child would be better met if they lived with the other if they are authortive and can establish some ground rules.

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