Children’s wishes and feelings

Madonna and her ex-husband Guy Ritchie are currently caught in a court battle over where their 15 year old son, Rocco should live. Whilst those proceedings are taking place in a court in Manhattan and London the principles being applied as to where Rocco shall live are similar to the principles applied in court proceedings in England and Wales. 

When determining the arrangements for a child the child’s wishes and feelings is one factor which the court has to take into consideration. The court also has to consider what is in the child’s best interests and to assist in making that decision, the court applies the factors defined in section 1(3) children act 1989 commonly known as the welfare checklist. 

The welfare checklist principles are; 

  1. The wishes and feelings of the child concerned
  2. The child's physical, emotional and educational needs
  3. The likely effect on the child if circumstances changed as a result of the courts decision
  4. The child's age, sex, background and any other circumstances which the court thinks is relevant
  5. Any harm the child has suffered or may be at risk of suffering
  6. Capability of the child's parent at meeting the child's needs
  7. The powers available to the court to make orders about the child.

When considering the child's wishes and feelings the court has to consider the child's age and level of understanding and also whether the wishes are their own or whether there have been outside factors that may have influenced their decisions. Therefore it can be said that the wishes and feelings of a child should be considered in conjunction with the other factors and not taken in isolation.

In Madonna’s situation, Rocco is 15 years old and therefore it can be assumed that he has a good level of understanding and maturity to provide a clear view as to where he wishes to live. It is often the case that if a child of Rocco’s age is forced to live with or spend time with the other parent contrary to his or her wishes and feelings, then the relationship between the child and the other parent becomes even more fractious.

In contrast, a child of 5 years old is less likely to be able to make an informed decision as to who he or she wishes to live with and how much time he or she will spend with the other parent. In those circumstances, the other factors defined in section 1(3) children act 1989 are more relevant.

If you are experiencing problems in agreeing arrangements for children with an ex-partner or your child’s wishes and feelings are in conflict with a court order thus putting you in difficult position of complying with the court order and listening to your child’s views, then please contact one of our specialist family solicitors for further advice.

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