In child custody disputes, the court must always prioritise the welfare of the child. Under the Children Act 1989, one factor the court considers is the child’s wishes and feelings, but how much weight these hold depends on the child’s age and maturity. While older children may have their views taken more seriously, these preferences are not the final deciding factor. The court typically listens to a child’s preferences when they are old enough to understand the situation, but there is no fixed age. The older and more mature the child, the more influence their wishes will have.
However, as seen in Re P (A Minor) (Education: Child’s Wishes) [1992], the court emphasised that a child's wishes are just one aspect and should not outweigh the overall consideration of their welfare.
To ensure the child’s views are genuinely their own, CAFCASS (Children and Family Court Advisory and Support Service) often conducts assessments, offering insights into the child’s relationships with each parent. The court is careful to ensure that a child’s preferences are not unduly influenced by a parent, as manipulation can distort their true feelings.
For example, a child may express a desire to live with a parent who has historically provided less stability, perhaps because that parent offers more freedom or is seen as the “fun” parent. While the child’s preference is important, the court may decide that the other parent, who offers more structure and consistency, is better able to meet the child’s needs. Therefore, even if a child strongly expresses a desire to live with one parent, the court may override these wishes if it believes the other parent offers a more stable environment, as illustrated in Re A (Children) [2013] EWCA Civ 1104. Here, despite the children’s stated preferences, the court made its decision based on what would best serve their long-term needs.
In short, while a child’s wishes are important, they are only part of the court’s wider assessment of what is in the child’s best interests. The ultimate goal is always to ensure the child's welfare, even if that means setting aside their expressed preferences.