Will the Court Listen to What my Children Want if I Apply for a Contact Order?

Posted onApril 22, 2021

Nowadays we listen a lot more to children than we did a generation ago, or even a decade ago. However, when it comes to a child custody or contact application, a child’s voice isn’t always listened to.

Some children law campaigners say that is wrong but specialist children law solicitors say that listening to children, without questioning what they are saying and why they are saying it, can be equally damaging as not listening to a child’s views on custody and contact arrangements. In this article we look at how the court listens to what children want when a parent applies for a contact order or other type of children law order.

LONDON BASED CHILDREN AND FAMILY LAW SOLICITORS

For legal advice on children law or for representation in a child custody or contact application call the children and family law team at OTS Solicitors on 0203 959 9123 or complete our online enquiry form . We can set up a video conference or telephone appointment for you with a specialist children law solicitor.

Does anyone listen to what a child wants in custody or contact proceedings?

Some parents assume that what their child wants, their child gets, even when it comes to children law proceedings. Other parents think that the views of their children on their custody and contact arrangements are largely irrelevant as a parent’s rights to shared custody or contact should take precedence over the views of their child.

The law says that when determining a children law application, including an application for a child arrangement order (that sets out the custody and contact arrangements for a child), that the child’s wishes and feelings should be considered, in the light of the child’s age and understanding.

At what age will a child be listened to in child custody or contact proceedings?

There is no definitive age when a child will be listened to in a child arrangement order, specific issue order or prohibited steps order application. That’s because you can find some highly articulate and intelligent eight-year-olds and some troubled teenagers who can't express their views or their wishes are heavily influenced by their siblings or parent’s view of what is best for them.

In each children law court application, the court will not only assess the child’s wishes and feelings but consider them in the light of the specific child’s age and understanding.

For example:

A child may say that they don’t want to see their mother or father but there is concern that the child has been influenced by the other parent, including cases of parental alienation.
A child may not want to see a parent because they blame them for the separation or divorce without having a full understanding of the complexity behind the reasons for their parent’s relationship breakdown.
A young child may not be able to say who they want to live with or who they want to spend time with. However, an observed contact visit may show a non-verbal child’s strength of attachment to their mother or father.
A child may say that they don’t want to live with their other parent because they are aware of the upset that would cause. Alternatively, a child may say that they don’t want a shared care arrangement because they have been told that this will affect child support payments.

The above examples show why the court says it is best to not always take what a child says at face value and to look at the child’s wishes and feelings in light of their age and understanding.

For example, a child may say that they don’t want to see their dad because ‘dad left them’. However, no contact between father and child may just reinforce the child’s perception that they were part of the relationship breakdown and that their dad deserted them. In the long term, it may be best for the child to understand that the relationship breakdown was between the parents and that both parents continue to love them and want to spend time with the child.

Who listens to a child in children court proceedings?

Some parents think that they can say what their child wants whereas others think that the family judge should interview the child, as part of the court process, to find out the child’s views on custody and contact. There are obvious issues with a parent saying what a child’s wishes are because:

The parent may present their own wishes on child custody and contact, rather than those of the child.
A parent asking a child what they want may result in the child getting too involved in adult issues or feeling guilty if the child thinks that what they said meant that they didn’t get to spend an equal amount of time with each parent.
Parents could be tempted to coach a child into siding with their views on custody or contact and a child may agree with them, just to keep the peace.

Whilst everyone should listen to a child in court proceedings, if there is a dispute between parents over what the child’s wishes are, the court can order a CAFCASS report to advise the court on the child’s wishes and feelings and give a recommendation as to what type of child arrangement order or specific issue order or prohibited steps order would be in the child’s best interests.

As a CAFCASS officer is independent of the parents and any other party to the court proceedings, their observations of the child’s wishes and feelings and recommendations on what children law orders are in the best interests of the child can be highly influential with the judge.

What does a judge consider, in addition to the child’s wishes, when making a children law order?

When a court is making a decision about a child, the child’s welfare is the court’s paramount consideration. In determining what child arrangement order, specific issue order or prohibited steps order is in the child’s best interests the court will consider a statutory check list of factors, namely:

The ascertainable wishes and feelings of the child concerned, in light of his or her age and understanding and
The child’s physical, emotional and educational needs and
The likely effect on the child of any change in his or her circumstances and
The child’s age, sex, background and any characteristics the court considers relevant and
Any harm which the child has suffered or is at risk of suffering and
How capable each of the parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting the child’s needs and
The range of powers available to the court.

The checklist isn’t to be slavishly followed as some factors may be more important in some cases. If you aren’t sure if your child will be listened to in a court application, or you are worried that your child’s real views will be lost because of parental alienation, it is best to take specialist legal advice on your child arrangement order, specific issue order or prohibited steps order application.

LONDON BASED CHILDREN AND FAMILY LAW SOLICITORS

For help with a contact order or children court application call the children and family law team at OTS Solicitors on 0203 959 9123 or complete our online enquiry form so we can set up a skype or telephone appointment for you.