When advising a parent who is involved in a dispute with the other parent about a child’s arrangements, I am often asked at what age a child can make their own decisions? The answer depends on the child’s level of understanding, not only of the process, but also the implications of the outcome they seek. This issue was very recently considered by the Court in Tom v M & Anor [2024] EWFC 313 (B).
A 13-year-old boy, referred to as Tom to protect his identity, sought permission from the Court to apply for an order that he live with his father and attend a different school. As a child, Tom required the Court’s permission to make the application.
While the father agreed that Tom should be able to make the application, the mother opposed it. Tom had been involved in lengthy Court proceedings for many years and a Children’s Guardian had been appointed. The Children’s Guardian did not believe Tom should be granted permission to pursue the application.
Tom’s parents separated when he was about a year old and had been engaged in Court proceedings for several years, initially over his living arrangements and, from the age of three, over which school he should attend. By age 10, Tom living with both parents on a roughly equal basis, although he had already expressed the wish to live with his father and attend a school near to him. After considering all welfare factors and the potential impact on his relationship with his mother and half-sister, the Court ordered that Tom continue with the existing arrangements and remain at his current school, where he was reported to be happy and doing well.
A further dispute arose over which secondary school Tom should attend. Again, he expressed a wish to live with his father. The Court decided he should continue to live with both parents and attend the secondary school proposed by his mother, where most of his friends would be going.
Tom then instructed his own solicitors and sought the Court’s permission to make an application for orders that he live with his father and attend a different school. The Court determined Tom’s application in October 2024. Both parents acknowledged that Tom was at risk of harm, his mother was concerned about the emotional toll of being directly involved in legal proceedings, while his father feared harm if Tom’s application was refused. Both agreed that Tom’s relationship with his mother had recently improved.
The Children’s Guardian did not support the application, citing concerns about the potential harm to Tom and his relationship with his mother. He believed Tom was under significant pressure and would benefit more from therapeutic support than further legal proceedings.
Whilst the Court recognised that Tom was intelligent and perceptive, it did not agree with the assessment of his maturity by his lawyers and father. The Court found that Tom did not fully understand the importance of his mother, step-sister and extended family in his life, nor the reasons for the previous Court decisions or the consequences of changing schools. He was not able to give clear reasons to support such a substantial change in his living and education arrangements. The Court was of the view that Tom had been influenced by his father and there was evidence to show that rather than support Tom to accept the outcome of previous proceedings, his father had been actively involved in discussions about making his own application for some time.
The Court was also very concerned about the long-term impact upon Tom of being directly involved in the Court process which would include attending hearings and witnessing the distress caused to his parents by giving evidence and being exposed to information about his parents that a child would not normally encounter.
The Court therefore dismissed Tom’s application and in order to give him and his parents respite from further Court involvement, enable Tom to access the therapy and support that he needed to be able to focus on the many positives in his life and concentrate on his GCSEs, an order was made that nobody could make any further applications about Tom without first having obtained the Court’s permission until he was 16 years old. The law does not enable a Court to make any orders relating to a child over the age of 16 unless in exceptional circumstances and it was clearly intended therefore that the Court would not become further involved in decisions relating to Tom’s arrangements unless permission had been given to someone to make a further application because the Court considered it necessary to do so.
The Court urged both parents to prioritise supporting Tom and his needs over their ongoing conflict.
This case demonstrates that there is never a clear-cut answer as to when a child is old enough to make their own decisions and it is always sensible to take legal advice.
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Disclaimer
This information is intended for general informational purposes only and does not constitute legal advice. We recommend seeking professional advice before taking any action on the information provided. If you would like to discuss your specific circumstances, please feel free to contact us on 0800 2800 421.
