Our recent blog considered the letter written by a judge to two young brothers in the case of Ms D v Mr D [2022]. In the letter, Judge John McKendrick explained how he had taken the children’s views and needs into account when reaching his decision on whether they should relocate from London to Somerset with their mother. The children had expressed a wish to move to Somerset however, in making his decision, the judge felt this was not their true ascertainable wishes and feelings as they had not appreciated how relocating would impact on their relationship with their father. The judge concluded that the children should remain living in London equally with both parents.
If you have separated from your spouse or partner and have children together, you may be questioning whether your child has a say on where and with whom they live with.
It can be a difficult and emotional time trying to address living arrangements for the children. There is no “one size fits all” approach when considering what arrangements will work best for your child, and it is important to have conversations as early as possible and discuss arrangements for the children as often as needed.
What if my ex and I can’t agree on arrangements for our child?
If it is not possible to agree arrangements, there are several options available. Mediation, if appropriate, may assist you in opening a forum for discussion with your ex. An unbiased and expert third person will discuss with you and your ex your particular circumstances with a view to trying to reach a solution.
If you are still unable to agree, then you may decide to take the case to court.
Can my child choose where they live?
If children are asked which parent they wish to live with, they may not want to choose or answer with what they think the parent asking the question wishes to hear. Older children may have very clear views on what it is they want to happen, but they could also be based on other influences.
If you are considering mediation, children can be included in the mediation process if it is suitable to do so. This may give your child a voice and the opportunity to speak freely to someone independent.
If an application to the court is made to determine living arrangements for a child, as part of the proceedings a child will usually be spoken to by a CAFCASS officer who look at and advise the family courts about what is best for the child. When the court considers what Orders to make and what is in a child’s best interests, it will take into account the ascertainable wishes and feelings of the child in view of their age and understanding. This is different to a child’s expressed wishes and feelings, which is what a child puts into words. While some weight may be placed on a child’s expressed views, this can sometimes be limited as the court may approach this with some caution. In some circumstances, what a child says might not always be a true reflection of their underlying views, particularly if they have been influenced by either parent. A report will then be prepared by CAFCASS after the meeting with the child and/or parents which forms part of the case.
Unless there are safeguarding issues which may put a child at risk of harm, most family courts prefer that the parents have some sort of shared care arrangement so as to ensure that a child maintains a full and meaningful relationship with both parents. This would have to be in the child’s best interests, taking into account various factors that may have an impact on their life such as where both parents live or intend to live, the children’s schooling and healthcare, and whether a shared care arrangement would impact on a child’s ability to get to their school if one parent moves away.
If you are having discussions with your ex-partner about arrangements for your children or need advice and guidance to go through your options, then we are always happy to assist. Please contact us on 01245 221 699 or email enquiries@ejcoombs.co.uk
