The Wishes Of A Child On Residence Order Applications
The court has a difficult balancing act to make when asked to decide an application by a parent which would involve a child moving home
. This will be particularly the case when both parents are able to offer a reasonable standard of care The child's wishes may well be the deciding factor.The weight to be given to a child's wishes and feelings are subject to clear guidelines. An important factor will be the child's age but not the only one stop. Understanding is equally important and this is where difficulties may arise. One 10-year-old child may have a quite different understanding of matters to 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.
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. The judge ordered the child who was a boy aged 8 to live with his father when it became apparent that the mother would not comply with any contact orders made by the court. The order was made without regard to the child's wishes and feelings and was based only upon the behaviour of the mother and her 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 move resulted in the boy suffering intensely and he was desperate to return and live with his mother again. He changed from a normal child into a lonly friendless boy and was deeply unhappy.
His mother eventually refused to return him to the Father following a contact visit. The boy became suicidal and threatened to take his own life if he was forced to return and with his father.
The court eventually allowed him to remain living with his mother and he was a different boy. The profound and negative affect on his development and the possibility of irreparable harm was mentioned in further reports but notwithstanding this his wishes were ignored. 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.
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