The Importance Of An Older Child’s Feelings in Child Arrangement Orders

Yael Selig

The importance of an older child’s feelings and wishes when making a final order

When decisions are made concerning children – where they should live and the contact arrangements with a parent – their wishes should be considered. While the age and maturity of the child will be relevant, a recent ruling (M v F & Anor [2024] EWFC 219) illustrates the extent to which an older child’s wishes and feelings are likely to be taken into account when making a final order.

When a relationship breaks down, our team understands the significant impact it can have on any children concerned. A child may have strong feelings about their future living arrangements, while the parents will want the best possible outcome for their children.

At Osbornes Law, our team of experts are highly experienced in supporting parents navigate arrangements concerning their children.

An important factor

When the court considers an application for a child arrangements order (CAO), the welfare of the child is paramount to its decisions. Consideration of the child’s welfare requires several factors to be taken into account, including the child’s ascertainable wishes and feelings which are to be considered in light of their age and understanding.

However, where an older child (16+) is concerned – the court can only make a s8 order if the case is exceptional.

What happened in this case?

This was an exceptional case given the child involved was 17 by the time the judge made his decision, and had unique vulnerabilities. The child (B) suffered from cerebral palsy with the significant physical and communication problems associated with his condition.

His mother was his primary career but unfortunately, she was completely negative about the father during the legal proceedings. The court was therefore very concerned that without a child arrangements order, the mother would not actively and positively promote a relationship between B and his father.

The judge heard expert evidence from an experienced social worker, a psychologist and the children’s guardian and concluded that B had capacity to express his wishes and feelings. However, while he sometimes expressed a clear wish to see his father, B was physically unable to make his own arrangements to do so. Nor did he want to be ordered to see his father.

In the circumstances B, his parents and the court all agreed that the mother should be required to make B available for contact – in accordance with B’s wishes. The family court was willing to make an order to that effect (up to the age of 18).

A further issue was how those arrangements should be implemented. The judge decided that the court would rely on both parents to exercise their parental responsibility ‘sensibly’ in implementing its terms. This, he said, would give their son the best opportunity to develop his extended family relationships.

What does this mean?

It’s clear that a child’s welfare remains of paramount importance to decisions around contact and living arrangements, even is the child is 16 or 17 where exceptional circumstances exist.

Most cases involving an older child involve particular vulnerabilities, such as health issues or disabilities. Their needs, wishes and feelings may prove decisive in any final decision of the court.

How can we help?

At Osbornes Law, we are highly experienced in child arrangement cases, including disputes involving older children. For urgent support, please contact our family law solicitors by:

• Filling in our online enquiry form; or
• Calling us on 020 7485 8811