Child choosing which parent to live with

This is one of the most commonly asked questions in family law, and the short answer is that there is no fixed age at which a child can simply decide which parent to live with. The law does not give children a right to choose at any particular birthday.

Legal position:

The governing legislation is the Children Act 1989. Under section 1, the paramount consideration for the court in any question about a child's upbringing is the welfare of the child. The court applies the welfare checklist in section 1(3), and one of the factors listed there is "the ascertainable wishes and feelings of the child considered in the light of his age and understanding."

This means that a child's views are always relevant, but they are never the only factor and they are never automatically decisive. The weight given to them increases as the child gets older and more mature. A court would give considerably more weight to the clearly expressed views of a 14-year-old than to those of a 7-year-old, but even a teenager's wishes can be overridden if the court considers that following them would not be in the child's best interests.

How the child's views are gathered:

In private law proceedings between parents, the child's wishes are typically ascertained through a Cafcass officer, who will speak to the child and report to the court. Children are not usually required to attend court or give evidence. In some cases, particularly with older children, the court may appoint a guardian for the child or even allow the child to be joined as a party to proceedings, but this is unusual.

Practical reality:

As children get older, particularly from around 12 or 13 upwards, the practical reality is that it becomes increasingly difficult to force a child to live with a parent they do not want to live with. Courts recognise this and tend to give significant weight to the views of teenagers. However, the court will always examine why the child holds those views. If, for example, a child wants to live with a parent who imposes fewer boundaries or who has influenced the child against the other parent, the court may take a different view of the child's expressed wishes.

At 16, a child arrangements order generally ceases to have effect in relation to the "lives with" element, under section 91(10) of the Children Act 1989, unless there are exceptional circumstances. So in practice, from 16 onwards, most children can effectively decide for themselves, although the court retains jurisdiction until the child turns 18.

Gillick competence:

The concept of Gillick competence, arising from Gillick v West Norfolk and Wisbech Area Health Authority [1986], is sometimes mentioned in this context. While it is primarily about a child's capacity to consent to medical treatment, the broader principle that a child's autonomy grows with understanding is relevant across family law. There is no specific "Gillick test" applied to residence disputes, but the underlying philosophy is consistent with the approach the courts take.

Summary:

There is no magic age. The child's views matter and carry increasing weight with age and maturity, but the court's duty is always to determine what is in the child's best interests, taking all the circumstances into account. If you are dealing with a situation where a child is expressing a strong preference, the most important thing is to ensure the child is not placed under pressure by either parent and that their views are communicated to the court through proper channels rather than being put in the middle of an adult dispute.