When considering what order to make in respect of a child and what is in their best interests, the court must consider the statutory checklist at section 1(3) of the Children Act 1989. The first of these factors is ‘the ascertainable wishes and feelings of the child concerned (considered in the light of their age and understanding)’.
“Ascertainable” vs “expressed” wishes and feelings
The court should draw a distinction between the child’s ascertainable wishes and feelings and their expressed wishes and feelings. This will be particularly important in cases where one parent is influencing or even coaching the child, so that what they are saying may not reflect their real wishes and feelings.
In the recent case of Re L (a child)  EWHC 867 the court emphasised that focus must be placed on the ascertainable wishes and feelings of the child, stating that “actions speak louder than words”. In that case, there was a striking contrast between what the child said about his father in the presence of his mother – which was entirely negative – and the reality of their relationship. The court accepted the view of the Guardian that any expression of the child’s wishes would be unlikely to represent his true wishes and feelings, and to that extent it would not be possible to ascertain the child’s genuine view. Further, the court accepted the Guardian’s opinion that it would have been emotionally harmful to ask the child, in those particular circumstances, which parent he wanted to live with. The court also held that, whilst it is a fundamental principle which is applicable to every case, the manner and degree to which the child is heard will vary from case to case.
The effect of a child’s age
In considering the weight to attach to the child’s wishes and feelings, the court will assess their age and understanding. Where a child is very young little weight, if any, may be given to their views where they are not sufficiently mature to understand the situation.
There is no specific age at which a child’s wishes and feelings will carry greater weight. Every child is different and there are numerous factors that may have a bearing on their understanding, including their maturity and whether they are being influenced by, for example, one parent.
It is not common for the court to impose an order that is completely incompatible with a teenager’s wishes, and where other factors are finely balanced, an older child’s views may have more significance. However again, every child is different and just because a child is older this does not automatically mean that the court will give effect to their wishes and feelings. Moreover, even where a child expresses clear views, if this is contrary to their best interests then the court may decide not to carry them out. The child’s welfare is the court’s paramount consideration and there may therefore be cases where their wishes and feelings might not align with their overall welfare.
How wishes and feelings are ascertained
Within private children proceedings a child’s wishes and feelings will usually be ascertained through the preparation of a section 7 report – which may be undertaken by Cafcass or the local authority – or an Independent Social Worker report. In some cases, a court may also join the child as a party to the proceedings by appointing a children’s guardian.
In the case of Re A (Letter to a Young Person) (2017) EWFC 48 Mr Justice Peter Jackson took an unconventional approach to his judgement and wrote it in the form of a letter to the child, aged 14 at the time. The case related to an application by the father for leave to remove the child permanently to Scandinavia. The application had originally been made by the child, however was then taken over by his father. The child spoke with Cafcass as well as meeting with the judge privately. Mr Justice Peter Jackson dismissed the application, and in his judgement explored but ultimately rejected the child’s views. He explained his view that the child had brought the proceedings mainly to show his father how much he loved him, and to meet his father’s needs rather than his own. He went on to be very critical of the father, and explained that “I respect your views, but I don’t take them at face value because I think they are significantly formed by your loyalty to your father”. The judgement is both honestly and sensitively written, taking a novel and insightful approach towards the assessment of wishes and feelings.