The decision of the Court of Appeal last week to uphold the approach of a High Court judge where a five year old girl was consulted about which parent she wanted to live with has been hailed as ‘radical' and ‘unique'.
The girl was considered to have ‘attained an age and level of maturity' sufficient enough to be consulted, together with her eight year old brother. The youngest sibling, aged three, was deemed too young to be consulted.
The circumstances of the case were that the children had been removed from Ireland by their mother. The children's father brought an application in the High Court in London to force the mother to return them. Mrs Justice Black directed that the views of the girl and her eldest brother be ascertained through interviews with social workers.
According to the social worker who interviewed the children, when the suggestion was made that they may have to return to Ireland, the girl began to cry and her brother became ‘very fidgety'. The children even suggested that if they had to return, their location be kept a secret, as far away from their father as possible.
What makes this case ‘radical' is the fact that the youngest child was just 5 years old. Whilst maturity and understanding will vary amongst children of all ages, it is highly unusual for a child of such a young age to be consulted, let alone for such weight to be applied to that child's views.
When dealing with a Children Act application, the paramount consideration for the Court is the welfare of the child in question. The Court considers a checklist of factors, including the ascertainable wishes and feelings of the child.
Even if understanding is established, it does not always follow that the child's views will take precedence. The Court has to be cautious as to how the child's view has been formed. In this case, the judge was satisfied that the children's objections came from ‘their own experiences of family life and their fear of their father'. This may not always be the case. A child can easily succumb to the pressure of influences exerted, consciously or not, by either parent. It is the skill of the Cafcass officer or social worker interviewing the child to ascertain the extent to which that child's view has been influenced.
Undue pressure is just one factor for the Court to consider. The child's wishes may not be in their best interests or may simply not be practical having regard to the circumstances of the case.
Whilst the Court cannot base any decision upon a child's wishes and feelings alone, the refusal by the Court of Appeal to allow the father permission to appeal in this case is still significant. This case highlights the right of a child to be heard and the views of that child to be given due weight in the appropriate circumstances. Importantly, any concept that there could be a fixed ‘minimum age' of understanding has now been dismissed, the implication being that a greater number of children could now have the opportunity to be consulted on issues directly affecting them.
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