In the UK, a child can legally choose which parent to live with once they have reached the age of 16. If there is a court order or Child Arrangements Order (CAO) which dictates who the child lives with, this is usually until they are 18. For children over the age of 12 but under 16, the courts will normally take into account where they want to live if they have sufficient maturity and understanding of their situation. As such, their preference can potentially influence the outcome of a Child Arrangement Order. The preferences of younger children under 12 regarding where they want to live may be considered when deciding on a Child Arrangement Order, but these may be given a lower weighting by the courts. In general, the courts prefer parents to make decisions between themselves regarding who their children will live with.
Child arrangement procedures can take time in the courts and cause stress on both parents and children. This is why instructing a family law solicitor is invaluable. Not only will we provide expert legal advice and representation based on your unique circumstances, but we will make the process as smooth as possible, removing the pressure off you and your children. Where possible, we will do all we can to resolve the matter without the need to involve the courts by using mediation or another Alternative Dispute Resolution method.
How does the Court decide who a child will live with?
When deciding who a child will live with during Child Arrangement Order proceedings, the courts take into account a range of factors, including:
- The child’s:
- Age
- Feelings
- Wishes/preferences
- Sex
- Physical and emotional requirements
- Background
- The effect of the changes on the child
- Any risk of harm to the child
- The parent’s ability to meet the needs of their child
Young Children and Court Consideration
Before making a decision on who a child should live with, the courts often request help from the Children and Family Court Advisory and Support Service (Cafcass). Cafcass is an independent organisation whose role is to protect the interests of children during family legal proceedings. The main priority of Cafcass is the welfare of the child.
As part of this process, Cafcass will gather information from the Local Authority and police to determine if there are any safeguarding risks to the child. An initial Cafass report will explain the circumstances of the situation and any important information (e.g. risks to welfare).
If the judge needs more information, they may ask for a ‘Section 7’ report (child impact report). To prepare this, a Cafcass Family Court Adviser will visit the family home to assess the overall situation. They will meet with both parents and the child and assess the factors outlined above. Depending on the age, maturity, and understanding of the child, the Cafcass Family Court Adviser may meet with them separately to better understand their feelings and wishes for where they want to live. In some cases, the Cafcass Family Court Adviser may ask the child to write a letter or draw a picture to explain how they feel and their wishes.
Having met with the parents and child, the Cafcass Family Court Adviser will then write up their findings in a detailed Section 7 report and provide this to the Court for their consideration.
Ultimately, it is the role of Cafcass to help guide the courts in their decision-making regarding who a child should live with and give the child a voice. While the wishes of a younger child (e.g. at the age of 10 years old) will not solely determine which parent they live with in the UK, a CAFCASS report will ensure that they are seen and heard in Court.
