Wishes and feelings of children in private children proceedings

When a court is considering what order to make in respect of a child and what is in their best interests, it must consider a statutory checklist which is set out at section 1(3) of the Children Act 1989. The first of these factors is ‘the ascertainable wishes and feelings of the child concerned (considered in the light of their age and understanding)’.

“Ascertainable” vs “expressed” wishes and feelings

The court should draw a distinction between the child’s ascertainable wishes and feelings and their expressed wishes and feelings. This will be particularly important in cases where one parent is influencing or even coaching the child, so that what they are saying may not reflect their real wishes and feelings.

In the recent case of Re L (a child) [2019] EWHC 867 the court emphasised that focus  must be placed on the ascertainable wishes and feelings of the child, stating that “actions speak louder than words”. In that case, there was a striking contrast between what the child said about his father in the presence of his mother – which was entirely negative – and the reality of their relationship. The court accepted the view of the Guardian that any expression of the child’s wishes would be unlikely to represent his true wishes and feelings, and to that extent it would not be possible to ascertain the child’s genuine view. Further, the court accepted the Guardian’s opinion that it would have been emotionally harmful to ask the child, in those particular circumstances, which parent he wanted to live with. The court also held that, whilst it is a fundamental principle which is applicable to every case, the manner and degree to which the child is heard will vary from case to case.

The effect of a child’s age

In considering the weight to attach to the child’s wishes and feelings, the court will assess their age and understanding. Where a child is very young little weight, if any, may be given to their views where they are not sufficiently mature to understand their situation.

There is no specific age at which a child’s wishes and feelings will carry greater weight. Every child is different and there are numerous factors that may have a bearing on their understanding, including their maturity and whether they are being influenced by, for example, one parent.

It is not common for the court to impose an order that is completely incompatible with a teenager’s wishes, and where other factors are finely balanced, an older child’s views may have more significance. However again, every child is different and just because a child is older this does not automatically mean that the court will give effect to their wishes and feelings. Moreover, even where a child expresses clear views, if this is contrary to their best interests then the court may decide not to carry them out. The child’s welfare is the court’s paramount consideration and there may therefore be cases where their wishes and feelings might not align with their overall welfare.

How wishes and feelings are ascertained

Within private children proceedings a child’s wishes and feelings will usually be ascertained through the preparation of a section 7 report – which may be undertaken by Cafcass or the local authority – or an Independent Social Worker report. In some cases a court may also join the child as a party to the proceedings by appointing a children’s guardian.