A common question asked of Family Lawyers is at what stage a child can have a say about their care arrangements, and whether a Court will consider any views expressed by a child in determining what parenting Orders should be made.
Amendments to the Family Law Act 1975 that come into effect on 6 May 2024 have placed a greater emphasis on the Court considering any views expressed by a child when making parenting Orders.
One such change states that one of the objects of the Family Law Act 1975 is to give effect to the Convention on the Rights of the Child. The Convention provides that where a child is capable of forming his or her own views, they have a right to express those views freely in all matters concerning them, with their views being given due weight in accordance with their age and maturity.
In addition, the Family Law Act 1975 also specifically provides that a Court is required to consider any views expressed by a child in determining what is in their best interests.
Weight to be given to views
In determining how much weight to give to a child’s views about their parenting arrangements, there are a number of factors that may be relevant to a particular case that will need to be considered. These factors might include things like:
- The age and maturity of the child (the Court has long held the view that the older and more mature a child and, in particular, their ability to understand the consequences of their decision, the more weight should be given to those views);
- Whether there has been any pressure placed on the child to form a particular view;
- The child’s emotional attachment to a particular parent;
- Whether the child’s views (and the consequences of their views) have been well thought through; and
- The consequences to the child of an Order being made that is against their views.
A lot of people think there is a magic age that a child reaches and they are then able to make their own decisions about their care arrangements. This is not the case and how much weight to be given to a child’s views is considered on a case by case basis.
It is also not uncommon for the Court to make Orders expressly against what a child wants, because that is what represents their best interests. For example, where there have been issues of family violence, the view of a child to live with a particular parent may mean that their safety is compromised. Remember, views expressed by a child are just one factor to be considered by the Court.
How will a child’s views be expressed to the Court?
Evidence relating to the views of a child is generally presented to the Court through one of the following processes:
- In some cases before the Court, an Independent Children’s Lawyer will be appointed and (subject to some exceptions, such as where there is a child under the age of 5) an Independent Children’s Lawyer is now required to meet with children subject of the proceedings and give them the opportunity to express views about their living arrangements.
- In most parenting matters before the Court, a family report or similar assessment will be prepared to assist the Court in making Orders in the best interests of the children. Where appropriate, this will generally involve an expert or family consultant meeting with families and children, reporting on what everyone has said and then making recommendations about what parenting Orders would represent the children’s best interests.
- Parents can also give evidence about things children have said to them about their living arrangements. This type of hearsay evidence is allowed to be introduced to the Court, as it gives the Court the ability to hear what the children are saying without the children being required to give evidence themselves.
Vary rarely will a child be called to give evidence in a Court matter concerning their care and if a parent wishes to call a child as a witness, they need the permission from the Court to do so.
In cases that are not in the Court system, child-inclusive mediation can be an excellent tool in some circumstances for parents to ascertain and discuss any views their child may have about their care arrangements.
If you have any questions about this article or require any assistance with a Family Law matter, please do not hesitate to contact the team at elringtons Lawyers.
