At what age can a child decide which parent to live with?

“At what age can a child decide which parent to live with?” It’s a question most often asked in relation to older children. However, younger ones may also have a firm opinion on where they would like to live.

The law

Legally, from the age of 16, a child can decide with which parent they would like to live. However, this may extend to 17 or 18 if a child arrangement order already specifies where they should live. If the child is under 16, the decision is a joint one for the parents, but if they cannot agree, the court decides.

In family law proceedings, the overriding consideration is “What is in the best interests of the child?” In considering this question, the court and other professionals involved in the process must consider the criteria forming the welfare checklist contained in Section 1(3) Children Act 1989. These criteria are:

• The ascertainable wishes and feelings of the child.
• The child’s physical, emotional and educational needs.
• The likely effect on the child if circumstances changed as a result of the court’s decision.
• The child’s age, sex, backgrounds and any other characteristics which will be relevant to the court’s decision.
• Any harm the child has suffered or maybe at risk of suffering.
• The capability of the child’s parents (or any other person the courts find relevant) at meeting the child’s needs.
• The powers available to the court in the given proceedings.

The role of CAFCASS

Children are usually not expected to attend court or speak to the judge or the lawyers in the case, although depending on the circumstances, it does happen. More often, before reaching a decision, the court obtains a report from the Family Court Advisory and Support Service (CAFCASS).

Depending on the circumstances, the CAFCASS officer may decide that speaking to the child or children is appropriate. In doing so, they approach the conversation with great care and in an age-appropriate manner. Typically, children are asked how they feel about any existing arrangements and whether they would like to spend more or less time with either parent.

In making recommendations to the court, the CAFCASS officer will consider the child’s age and responses to questions. Generally, the older the child, the more weight is given to their views. But, they should not overlook the other criteria in the welfare checklist.

See also: Will a judge go against a CAFCASS report?

Agreeing child arrangements out of court

For most parents, whatever their differences, attempting to agree on child arrangements without involving the court is essential. The question then arises as to whether and to what extent they should consider their child’s views.

However, approaching the child in the right way is crucial. Getting it wrong will likely cause the child anxiety. It can be emotionally damaging to feel you are being asked to choose between parents. If a child feels torn, they may be inclined to tell each parent what they think they want to hear, making a difficult situation much worse.

Yet, it is clear that children often believe their views are disregarded, if indeed they are given a voice at all. Research has found that involving children in decision-making can be beneficial to their future relationship with both parents. For instance, one study showed that involving the child means they are far more likely to rate their contact experience with the non-resident parent positively.

If the child is to be involved, each parent should avoid discussing the subject as much as possible in the absence of the other parent. And, of course, both parents should do their level best to leave any personal animosity outside the room. Parents often find it very helpful to involve a neutral third party. With child-inclusive mediation, a qualified family mediator can meet directly with the child with both parents’ consent. They can discuss any ideas the child might have about future arrangements and what is or is not working, which the mediator can then feed back to the parents if the child consents. This process usually proves far less stressful for the child than having such a difficult conversation in their parents’ presence.