When a relationship breaks down which involves children, one of the first questions is what will happen to the children?
The court will not intervene where the parents are sensible enough to work together and do what is best for the children. However, if not the court may have to intervene and in doing so they may have to look at the welfare checklist which is provided by the Children Act 1989. The presumption is that the welfare of the child is paramount and one is also directed to consider the wishes and feelings of the child.
However, what if the child has been abducted and the proceedings come under the Hague Convention? Will the court look at the wishes and feelings – will the child’s voice be heard?
In such a case the court is not investigating the child’s circumstances but looking at where the child should be to determine any issues concerning them. So what if a child violently objects to the return to one or other parent?
The court seems to take the view that the child should be heard but that does not mean that their views will be followed. It is merely a factor in the decision making process. The child will of course have to have reached a level of maturity and understanding to be heard within any proceedings.
It seems that some of the reasoning behind this view is that the child’s self perception may not be correct and the child may have been unduly influenced by the abducting parent. It seems therefore that the child’s voice in Hague Convention proceedings is only a small part.
The position seems to be different where we are looking at more straightforward cases as to where a child should live or have visitation rights to the absent parent. In that case the wishes and feelings of the child seem to carry much greater weight provided the child is old enough to express them. It seems that once a child has reached the age of six, their wishes and feelings will be taken into account. However, their emotional wellbeing also has to be weighed against this and sometimes it is not in the child’s best interests not to see an absent parent even though those are the child’s views in the short term.
In extreme cases where the child is being unduly influenced by the resident parent the court may feel it necessary to appoint a lawyer for the child who is independent of the parents so that their views can be canvassed and their interests best served.
In conclusion the child should not have the burden of making the choice, but on the other hand the child must be heard and evaluated. If a child’s view is departed from, there must at least be good reason to do so and it should not just be a case of lip service that has been given to the child’s views but a proper analysis so in the future the child can understand why such decisions were made.
By associate solicitor and mediator, Gillian Davies