The wishes and feelings of the children are factors which the Court must consider in children proceedings. The factors the court consider in deliberating an application for contact or residency (now made under the umbrella term “Child Arrangements Order”) are set out in section 1(3) of Children Act 1989. This is commonly known as the welfare checklist.
The welfare checklist is used to promote a consistency of approach by solicitors and the courts alike, when advising clients or making judgments relating to children of the family. The philosophy behind the welfare checklist is that it provides a minimum set of criteria to be considered, ensuring all the factors listed are considered, although it may be appropriate to provide more weight to one factor, over and above any of the others.
It is common for a party in a dispute relating to children, to state that they believe the children want to live with them, or perhaps that they do not wish to have contact with the non-resident parent. Naturally, this is often disputed by the non-resident parent and the entire situation places the children in a difficult, pressurised arena.
It is important to consider to what degree the court should be guided by the wishes and feelings of the children. There are a number of ways in which the courts might try and assess the true wishes and feelings of the children, but primarily this is done with the assistance of CAFCASS. CAFCASS are a government body designated to promote and protect the welfare and safeguarding of children and are frequently tasked by the courts to prepare welfare reports, which will consider the wishes and feelings of the children, their level of maturity and the extent to which a parent may have attempted to exert pressure or influence over the child in stating their views to CAFCASS.
In M v M  and Re: P  the court demonstrated that it was prepared to follow the wishes and feelings of a 12 year old girl and 14 year old boy respectively. Although the courts have deliberately avoided placing a minimum age before which a child’s expressed wishes and feelings will be considered with any weight, Re: D  demonstrated that the court will not always follow the stated wishes and feelings, if they do not feel it is in the child’s best interests to do so.
Perhaps the courts’ current thinking on this subject is best summarised in the case of Re: G . This was a particularly challenging case, where both parties had adopted intractable positions relating to contact of their daughter, who was 13 at the time of the last court battle. The judge provided workable guidance for parents and solicitors, considering to what degree they might focus on the wishes and feelings of a child, setting out five criteria for consideration:
- The court should make an order which will endure and minimise the risk of the parties returning to court.
- The child’s growing independence means that whatever order the court makes, the child would in future take greater control over contact arrangements.
- The court should try to avoid a situation arising where the child feels responsible for making contact arrangements and becomes vulnerable to pressure from the non-resident parent.
- The objectives of empowerment and protection of the child are equally important.
- The order should be realistic. Before making an order, the court should consider whether the order is practical, workable and whether in the event of non-compliance, it can be successfully enforced.
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