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At What Age Can A Child Make His Or Her Mind Up About Residence?


Probably, the least consulted persons of interest in a family break-up are the children. This may be partly due to the general inability of a child to come up with a well-balanced decision by virtue of his youth and limited level of understanding.

The Children Act of 1989 mainly concerns itself with the protection of the child's interest and welfare in the face of possible physical and psychological harm during parental disputes. This law provides relief and guidance to parents and children alike when separation is inevitable.

Section 8 Orders of the Children Act of 1989 has specific provisions regarding Residence Orders which determines with whom the child should live with. The Act itself shows a drastic change in philosophy, shifting from concentrating on parental rights towards emphasizing the rights of a child without taking away the sharing of parental responsibilities.

Court Concerns

The court is tasked most of the time to decide on matters affecting the welfare of the child caught in the middle of parental separation. Although in a divorce petition, a person is required to name all the living children of the family regardless of their age, the courts will only be concerned with those children in the age and circumstances of still needing parental care and support.

These children are those born to the petitioner and the respondent, or those who have been treated by them as though they were their biological children. They are referred to as the children of the family and may include adopted but not foster children. They are children who are still under 16 years of age or between 16 and 18 years but are still in college or in school full time.

The Residence Order and the Child

A Residence Order is an order settling the arrangements as to who the child is to live with. It lasts until the child reaches the age of 16 years unless exceptional circumstances present themselves to warrant extension of the order beyond the child's 16th birthday.

A child is not automatically entitled to make a Section 8 application. He is however, allowed to seek leave to apply before it can be pursued. The courts shall primarily consider if the child has sufficient understanding to make the application. The best interests of the child, the nature of application and the likelihood of success shall likewise be taken into consideration by the courts.

Respecting the Child's Decision

Responsibility is inherent in every parent, thus the Act's recognition of parental responsibility. Parental responsibility acquired automatically - meaning by married parents or by an unmarried mother, can be terminated by an adoption order whilst those obtained by agreement or court order can be revoked by a court order. Parental responsibility can also be acquired if a parent appoints a guardian for the child, although this can be changed or revoked either by the appointed guardian, or by court order or by application for revocation of order by the child himself.

The court is assisted in determining and defining what comprises the child's best interest in certain circumstances by a welfare checklist provided in the Act:

  • the child's wishes and feelings which has been determined with certainty, taking note of his age and level of understanding

  • the child's needs inclusive of physical, emotional and educational aspects

  • the apparent effect of any change of circumstances on the child

  • all characteristics considered relevant by the court, including but not limited to the child's age, sex and background

  • any harm that has been suffered by the child or is at the risk of suffering

  • the capability of all persons that may be considered relevant by the court in relation to the matter at hand including but not limited to the parents

  • the powers available to the court under the Act

The Act, in including the child's wishes and feelings in its criteria constituting its best interest offers an option to the otherwise general rule of the expiration of the Residence Order only upon the attainment of 16 years of age by the child. The importance of a child's view cannot be completely tied up with age. The Court Welfare Officer is responsible for reporting back to the parents and the court, the child's sentiments, the manner on how it was expressed and the facts for such sentiments. Any extraordinary influence of any of the parents on the child that may have brought about the expressed thoughts should be noted by the officer.

Extending the Residence Order

Even if Residence Orders expire upon the child reaching the age of 16 years, an application for it to be extended to the age of 18 can be made by the parent or guardian. This is only granted if the court is convinced that the circumstances are exceptional. If the extension has been granted, application to vary or discharge the order may only be made with the leave of court. This is intended to give enhanced security on instances where the person taking care of the child on a long term basis is not the biological parent.

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