The principle that the child’s welfare is paramount has long been the cornerstone of family law in England and Wales. Enshrined in Section 1(1) of the Children Act 1989, it places the needs and safety of children above all else. Yet beneath that well-intentioned framework lies a complex question: how far do our courts genuinely take into account what children themselves want? Under Section 1(3)(a) of the Act, courts are required to consider the “ascertainable wishes and feelings of the child concerned (considered in the light of their age and understanding)”.
In principle, this ensures that children have a voice in proceedings. In practice, however, the way in which that voice is heard, and the weight attached to it, varies depending on the circumstances of each case. In many private law disputes concerning arrangements for children, a Cafcass officer will meet with the child and prepare a Section 7 report. This report sets out the child’s wishes and feelings and places them in the context of their safety, developmental needs, family relationships, and the wider welfare checklist. This provides the court with a rounded and professional analysis of the child’s situation and the factors influencing their views.
Following the Court of Appeal’s guidance in Re KP (Abduction: Child’s Objections) [2014] EWCA Civ 554, judges may also meet with children directly. These meetings can help children feel included in the process and provide them with an opportunity to express, in broad terms, how they are experiencing the proceedings. Children may also be supported to write to the judge, or they may express their perspectives through drawings which can be particularly valuable for children who are anxious about formal interviews.
The weight given to a child’s wishes will generally increase with age, maturity, and consistency. Courts are more likely to give significant consideration to views that are independently expressed and supported by clear reasons. When a child’s preferences also align with their welfare needs, such as ensuring stability or secure contact arrangements, they can significantly influence the final decision. There are, however, situations where children’s wishes are overruled. Safeguarding concerns may mean that their preferred arrangement would compromise their safety or wellbeing. In high conflict cases, there may be evidence of coaching or undue parental influence, and while courts do not make such findings lightly, proven manipulation will reduce the weight attached to the child’s stated views. The law does not set a minimum age for taking children’s wishes into account, but younger children may find it more difficult to distinguish their own preferences from short term impulses or loyalty conflicts.
In more complex or higher risk cases, commonly in public law matters and occasionally in private law cases involving allegations such as parental alienation, a child may be made a party to the proceedings under Rule 16.4 of the Family Procedure Rules 2010. In such cases, the child is represented by a solicitor and a guardian who advocate independently for their rights and interests. This is an important safeguard but remains the exception rather than the rule, with most children’s views being presented through Cafcass.
Outside the courtroom, child inclusive approaches can also play a vital role. For example, Child Inclusive Mediation allows specially trained mediators to meet directly with the child to gather their views confidentially. These views are then sensitively communicated to the parents, helping to inform discussions without placing the child at the centre of parental conflict. This process can offer a less adversarial and more cost-effective way to ensure the child’s perspective meaningfully shapes future arrangements.
To ensure that participation is meaningful rather than a procedural formality, children need safe and supportive opportunities to express themselves at an early stage. They should also understand how their views will be considered alongside other welfare factors, and where their wishes cannot be followed, the reasons should be clearly recorded and, where appropriate, explained to them. Whilst the family courts do routinely hear from children, through Cafcass, and in some cases, direct legal representation, there remain circumstances where those wishes are moderated or not followed at all, usually because of safeguarding issues, concerns about external influence, or wider welfare considerations. The ongoing challenge for the family justice system is to ensure that every child’s voice is heard accurately, considered fairly, and given appropriate weight so that, regardless of the outcome, children feel genuinely heard.
Author: Zahrah Hussain
Zahrah Hussain can be instructed by emailing her clerks at clerks@northampton-chambers.co.uk or by telephone at 01604 636271.
Disclaimer:
This publication is intended to be a general summary of the relevant law and/ or guidance at the time of writing. It should not replace legal advice tailored to your specific circumstances. No liability is accepted for any omission or error wherein.
References:
Re KP (Abduction: Child’s Objections) [2014] EWCA Civ 554,