Should a child’s desire impact the decision of the court to stay with one parent or another?

Strong-willed, stubborn and determined. Resolute in their opinions, ensnared by the trends circulating the internet and adamant of their independence are the children of generations come and gone. Under the influence of parents, friends and the multifaceted marvel of the web, a child’s desire is composed of a spectrum of factors. In the works of emotional development and imaginative freedom, how much power can society grant them when it comes to life changing decisions? Deciding on who to live with for the rest of your childhood invokes a horrific amount of pressure, especially following the catastrophic separation of one’s parents. Therefore, should a child’s desire impact the decision of the court to stay with one parent or another?

The law currently entrenches that a child cannot legally decide who they want to live with prior to the age of 16. In certain cases, this may extend to 17 or 18 with the condition that a child arrangement order is in a place that specifies where a child should live. However, following Simon Hughes’ MP, the Minister of State for Justice and Civil Liberties,  announcement that children above the age of 10 may be able to speak to the Judge and visit the courtroom themselves, the question of a child’s influence in a court has ignited a climate of contentious debate. 

First, it is important to consider the importance of a family in one’s life, a question that is elucidated by the case, “Huang V Home Secretary” (2007) which sought to suggest that, “Human beings are social animals” and that, “Their family, or extended family is the group which many people most heavily depend” on. By claiming that, “prolonged and unavoidable separation from this group seriously inhibits their ability to live full and fulfilling lives”, the gravitas of a family, or from a legal standpoint, “the right to family life” is made clear. By examining this importance, the arguably convoluted decision to be declared by the judge is made all the more pivotal. 

Manipulation and coercion; two terms that ring true surrounding cases that regard family law. Let’s take, for instance, the Case Re L (A child) EWHC 867 whereby HHJ Tolson QC found that the boy (aged 8) in question had been manipulated by the maternal family into making accusations of both sexual and physical abuse against his father. In spite of the good relationship that his father had fostered, the child still spoke against him. This raises a multiplicity of problems, especially because the requirement to consider a child’s desires clashes with the overarching concern for their welfare. 


By allowing the child to remain in his mother’s care, the chance of a balanced relationship with both mother and father is put at risk as the child is encouraged to speak negatively of his father under the influence of his mother. 

Undeniably, the malleability of a child’s mind leaves them mentally vulnerable and arguably at the whim of parental influence. 

As such, I believe it to be imperative to consider the cognitive ability of a child in order to judge the validity of their desire in a court decision. 


Case Law - Determining the final call

The case, taken up in the High Court of Australia, BONDELMONTE v BONDELMONTE & ANOR [2017] HCA 8, offers a clear example of the weight given to a child’s desire. Two sons, who had previously been living with their father in Australia, travelled to New York for a holiday whereby, during the trip, the father informed the mother that they wouldn’t be returning to Australia. This was shared on the basis of the boy’s desire to remain in New York with their father, a decision that the mother appealed. To ascertain the best outcome,  60CA requires the court to have "the best interests of the child as the paramount consideration". In determining this 60CC(2)(a) provides that a chief consideration is "the benefit to the child of having a meaningful relationship with both of the child's parents". As such, the judge ordered for the return of the boys to Australia despite their wishes. 

The desire of these boys to remain with their father could be reduced to the appeal of the situation, where the thrill of a holiday turned to a living situation enticed the children away from the arms of their mother. With case law as a barrier to prevent impulsive desires from severing a chance of a relationship with both respective parents, a child’s desire, justifiably, has little impact on a court ruling when their best interests undermine their personal inclinations. 


CAFCASS - Effective or Perfunctory? 

Cafcass, an organisation that represents children in family court cases, adopts methods of discussion and expression to elicit a child’s opinions surrounding the issues within a case. Specialists may ask a younger child to express their emotions visually, through means of drawing for instance. Others may create a safe environment to allow the child to assert their views, without the legal jargon of a courtroom affecting the natural discourse of their emotion. The thoughts and feelings of a child should be measured in the context of their age and experience and should only be elicited in a manner that can ensure optimum honesty. 

From my assessment, an issue arises as a child grows older. Many would become more aware of the methods used by bodies such as Cafcass to garner the “truth” hence their thoughts and feelings may hold less precedence in a court of law than that of a younger child. Therefore, whilst cognitive ability plays a role in determining parental influence, it can equally establish the quality of information that one can retrieve from a child. Where a 15 year old child is less amenable to manipulation, they are more likely to withhold or alter information to align with a personal narrative, whether that be externally influenced or manufactured from their own, possibly impulsive desire, for the outcome of a case.  


The Verdict

Through this investigation, a child’s desire in impacting a courtroom decision can be measured by the context of the child in question. I concur that children under the age of 10, (age of 10 being used as a moral benchmark as is currently the age of criminal responsibility in the UK) should have minimal impact on a courtroom decision due to their susceptibility to parental influence. Whilst their thoughts should be elicited and considered, they should not be integral to the final ruling so as to eliminate the proportion of juvenile impulse on such a crucial decision. However, as with many cases, age should be overlooked if the child claims verbal or physical abuse against a parent as dismissing this could be against the “best interests of the child”. (60CA) To ensure the validity of the claim, an investigation into the parents should be carried out accordingly, rather than leaning on a child’s assertion to form a judgement. Despite the child’s claims against his father in the Case Re L (A child) EWHC 867 not being substantiated, it is imperative that they were investigated to protect the child from possible danger. Equally it is fundamental that measures were taken out against the mother of that child for manipulation, measures that took form in removing the child from the mother’s home and into the father’s. In this case, the child making false allegations albeit under the influence of his mother, was 8 years old thus lending further verisimilitude to the decision that children under the age of 10 should be regarded but not made central to a case. The requirement of a child’s desires should not exceed the boundaries of a “consideration” under the age of 10. Between the ages of 10-16, judges can make alterations to visiting provisions and holiday arrangements to align with whom the child wishes to see more but it is essential that, should the circumstances allow it, a balanced relationship between mother and child and father and child is maintained as, at the core of the issue remains the “best interests of the child.”