Key takeaways
• Welfare comes first: the child's welfare is the court's paramount consideration in any decision about their upbringing (Section 1, Children Act 1989).
• The child's voice matters: the court must consider the child's ascertainable wishes and feelings in light of their age and understanding.
• No magic age: there is no fixed age at which a child decides. Views tend to carry more weight from around 11 to 12, and courts rarely force contact on a 16 or 17 year old.
• Gillick competence: a mature child under 16 can consent to their own medical treatment.
• The UNCRC: the UK has signed the UN Convention on the Rights of the Child, but it is not directly enforceable in domestic law.
• A child can be heard: through a Cafcass officer, and in some cases by being made a party to the proceedings (Rule 16.4, Family Procedure Rules).
Do children have legal rights in family law?
Children in England & Wales do not have a single, codified set of directly enforceable rights in private family disputes in the way adults enforce contracts. Instead, a child's interests are protected powerfully but indirectly, through three things working together: the welfare principle in the Children Act 1989, which makes the child's welfare the court's paramount concern; parental responsibility, which frames parenthood as a set of duties towards the child, not rights over them; and safeguarding duties on parents, local authorities and the court to protect children from harm.
The UK has also signed the UN Convention on the Rights of the Child (UNCRC). It guides policy and practice, but it has not been incorporated into domestic law, so it cannot be enforced directly in an English or Welsh family court.
The welfare principle
Section 1(1) of the Children Act1989 states that when a court decides any question about a child's upbringing, the child's welfare is the court's paramount consideration, ahead of the wishes of either parent. The court also works on the basis that delay is usually harmful to a child, and that it should only make an order where doing so is better for the child than making no order at all.
The welfare checklist (Section 1(3))
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Welfare checklist factor (s1(3) Children Act 1989)
1
The child's ascertainable wishes and feelings (in light of age and understanding).
2
Their physical, emotional and educational needs.
3
The likely effect of any change in circumstances.
4
Their age, sex, background and relevant characteristics.
5
Any harm suffered or at risk of being suffered.
6
How capable each parent is of meeting the child's needs.
7
The range of powers available to the court.
How a child's voice is heard in court
• Cafcass: a Family Court Adviser may speak with the child and report their wishes and feelings to the judge.
• Section 7 reports: the court can order a welfare report exploring the child's circumstances and views.
• Separate representation: in more complex cases a child can be made a party and have their own Children's Guardian and solicitor (Rule 16.4, Family Procedure Rules).
• Meeting the judge: in some cases a judge may meet an older child, to listen rather than to take evidence.
The court listens to children, but the decision stays with the judge, who must do what is best for the child overall.
At what age can a child decide?
There is no fixed age at which a child can legally decide which parent to live with or refuse contact. What changes with age is the weight the court gives to the child's wishes:
• Younger children's views are noted but carry less weight.
• From around 11 to 12, a child's clearly held views tend to carry more weight.
• At 16 to 17, courts rarely force a young person to do something against their settled wishes, and in practice treat them as having a large degree of autonomy.
Even then, the court is never bound to follow a child's wishes, and will look carefully at whether those views are the child's own. Where a child is resisting contact, see also parental alienation.
Gillick competence and medical decisions
A child under 16 may be Gillick competent if they have enough understanding and maturity to consent to medical treatment without parental permission. Even so, a court can step in where a child's decision poses a serious threat to their life or welfare.
The right to be protected from harm
Protecting a child from harm runs through every stage of a case. The court can order safeguarding checks and welfare reports, hold a fact-finding hearing where abuse is alleged, and make orders such as a Prohibited Steps Order to keep a child safe.
A child and both parents
Family law generally recognises that a child usually benefits from a meaningful relationship with both parents, but only where that is safe. Involvement means involvement of some kind, direct or indirect; it does not mean an equal division of the child's time. The child's welfare and safety always come first: the court will not promote a parent's involvement where it would put the child at risk, and where there are concerns such as domestic abuse, the child's protection takes priority over contact.
How Family Law Decisions can help
We help parents put the child at the centre of their case, which is exactly what the court wants to see.
• Preparing a child-focused Child Arrangements Order application or response.
• Drafting position statements that address the welfare checklist directly.
• Guidance on Specific Issue and Prohibited Steps Orders affecting a child.
• Support at court as your McKenzie Friend, with 18+ years' experience.
• Affordable fixed fees and a free initial consultation.
FAQs
Do children have rights in family court?
Their interests are strongly protected, but indirectly. The court must treat the child's welfare as paramount and weigh their wishes and feelings, even though children do not enforce a separate set of codified rights themselves.
At what age can a child choose which parent to live with?
There is no fixed age. A child's views carry more weight as they mature, generally from around 11 or 12, and by 15 to 17 the court rarely overrides a young person's settled wishes. The decision still rests with the court.
Can a child refuse to see a parent?
There is no age at which a child can simply refuse in law, but their wishes are taken into account and given more weight as they get older. The court will also consider why a child is resisting contact, see parental alienation.
Will the judge listen to my child?
Yes, usually through a Cafcass officer or a welfare report rather than the child giving evidence. In some cases a child can be separately represented, and a judge may choose to meet an older child.
What is Cafcass?
Cafcass is the Children and Family Court Advisory and Support Service. Its officers represent children's interests in family proceedings, speak with children where appropriate, and report to the court.
What is Gillick competence?
It is the test for whether a child under 16 has enough understanding and maturity to consent to their own medical treatment without parental permission. A court can still intervene to protect the child's welfare.
Is the UNCRC part of UK law?
The UK has signed the UN Convention on the Rights of the Child, and it influences policy and practice, but it has not been incorporated into domestic law and cannot be enforced directly in the family courts of England and Wales.
Can a child have their own solicitor?
In more complex cases a child can be made a party to the proceedings under Rule 16.4 of the Family Procedure Rules and have their own Children's Guardian and solicitor.
Does the court always follow what the child wants?
No. The child's wishes are an important factor, but the court's paramount concern is the child's overall welfare, so it can decide differently where that is in the child's best interests.
Disclaimer used on the page
Family Law Decisions provides McKenzie Friend & Paralegal support and document assistance in England & Wales. We are not solicitors, and this page is general information about the law, not legal advice.
