Can Children Decide Where They Live?

When determining arrangements for children when their parents separate, family law decrees that the ‘best interests’ of children are paramount. In other words, a court will look at what is best for the children and not what is best for their parents.

Children do not get to decide who they live with when their parents separate. However, their views or wishes can very much be taken into account, and be highly influential, depending on their age and maturity and how their views or wishes have been formed.

Children are not directly involved in any court proceedings in that they do not attend any courtroom. It is extremely rare for a Judge to speak with children. Children’s views and wishes are obtained in other ways.

Child Inclusive Conference

A Child Inclusive Conference is a preliminary and limited assessment, intended to assist the court to make shorter-term orders and to decide on the best way for the matter to proceed. It is normally ordered in the very early stages of court proceedings.

A Child Inclusive Conference is a meeting with a family consultant that is ordered by the court which both parents and the children attend. Lawyers are not included. The conference is intended to give the court an understanding of the family situation, and particularly of the children’s experience. The conference can help the judicial officer hearing the case make short-term decisions about arrangements for the children. It may also help the parties reach an agreement. A short report is prepared for the court.

Child Impact Report

A Child Impact Report is a piece of independent expert evidence prepared by a Court Child Expert  as a result of their interviews with the child’s parents and the child. The interviews are generally separated into two parts, the first being interviews with each parent, the second being with the child/children. The purpose of the report is to inform the court as to experiences of the child to help the court make parenting orders for in the short term. 

A Family Report (discussed below) is a more detailed report that observes the family dynamics, parenting capacity of each parent, and the needs of the child. By comparison, the Child Impact Report is shorter, occurs earlier in proceedings, and is more focused on the child’s immediate needs, and any short term arrangements that need to be made for their welfare. 

While a child does not ‘decide’ where they live, their view as articulated to the Child Court Expert during their interviews could have a baring on the courts decision as to where they could live on an interim basis. 

Family Report

A Family Report is a comprehensive assessment of the family situation, which assists the court at a final hearing to make long-term orders for the children.

The family consultant will conduct a series of interviews in one day or over a few days. They will have individual interviews with the parents. They may also interview other significant people, such as adult siblings, step or half siblings, partners or grandparents.

Children are seen separately from any adults (except in special circumstances). Children are given an opportunity to express their views and wishes, but no child will be expected to do so. The family consultant may also observe the interaction between the children and each parent (and other significant people) in separate observation sessions.

In preparing the report, the family consultant considers the family’s circumstances, explores issues relevant to the case and recommends arrangements that will best meet the children’s future care, welfare and developmental needs. The best interests of the children are the main focus of the report.

Independent Children’s Lawyer

In some cases, children’s wishes may be obtained by the children meeting with the Independent Children’s Lawyer (‘ICL’). An Independent Children’s Lawyer is a solicitor appointed by the court to advocate for the best interests of the child. The ICL is not the child’s legal representative, and is not required to act upon the child’s instructions. 

Not every proceeding requires the appointment of an ICL . However, if there is an ICL appointed in your matter the ICL has an obligation to meet with the child. The ICL is not required to meet with the child if there are exceptional circumstances that justify otherwise, or the child does not wish to meet with the ICL. If the ICL does meet with the child, and the child has an opinion as to where they would like to live, they may communicate this to the ICL at this meeting. 

The Independent Children’s Lawyer has a duty to ensure that any views expressed by the child are fully put before the court. These views may include where the child is to live. 

A final thought for parents. When considering children’s views and wishes, it is very important to understand how and why the children’s wishes have been formed. Remember, it is very common for children to simply tell each of their parents what it is they think their parents want to hear.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.