Although, a child can express their views regarding who they would like to stay with the courts will not necessarily always take this into consideration. The most important factor that will affect whether the courts will listen to the child’s wishes and feelings is the child’s age. This is because a court will not make an order unless it is satisfied that doing so will be better for the child than making no order at all (section 1(5), Children’s Act 1989). If an older child expresses a wish to live with a particular parent, the court will generally follow this due to older children ‘thinking with their feet’ whereas a younger child will fall in with adults’ rules and orders.

It is up to the parents upon divorce to try and come to an agreement between themselves as to who the children and going to live with and who they are going to spend time.  

What happens if parents cannot agree?

If parents cannot agree where their child will live the first option is to consider dispute resolution services. There are two types of mediation services, and these are mediation or negotiation. This is a method where a neutral third party helps you come to a decision in which all parties are satisfied with.

However, if this method does not work then a court application can be made. A judge will then make the decision on behalf of the parties keeping the child’s best interests in mind. The judge will make a child arrangement order setting out who the child lives with and a schedule of when the child will see the other parent. The judge could also make a shared care order, which means the child will spend equal time with both parents. This child arrangement order will usually stay in place until the child is 16 years old, however it can be extended till the child is 17 or 18.

What factors do the courts take into consideration when deciding who the child will live with?

The courts will look at the welfare checklist provided by The Children Act 1989 which includes:

• The ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding).
• Physical, emotional, and educational needs.
• The likely effect on him of any change in his circumstances.
• Age, sex, background, and any characteristics of his which the court considers relevant.
• Any harm which he has suffered or is at risk of suffering.
• How capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs.
• The range of powers available to the court under the CA 1989 in the proceedings in question.

What can happen if you breach a child arrangements order?

There are sanctions in place if one parent breaches a child arrangement order and these can include fines, completing unpaid community work or even imprisonment.

If you wish to discuss your situation or any issues raised in this blog our family solicitors are based in Wolverhampton, Cradley Heath and Sutton Coldfield and serve clients across the West Midlands.  For all new enquiries, please call 01902 328 355 or complete our online enquiry form and a member of our team will respond.