Q: My wife and I have recently separated. Since the separation I have only seen our two young children once, but I have spoken to them frequently and they told me they want to spend more time with me but their mother won't let them. If I apply to court for a contact order, will the opinions of the children be taken into account?
A: Under the Children's Act 1989 the children's welfare is paramount and the court must take certain factors into account before making any decisions that will affect them. The court is required to pay particular attention to seven specific factors, to ensure that a consistent approach is taken in all cases. This is known as the ‘welfare checklist' and the ascertainable wishes and feelings of the children (considered in light of their age and understanding) will be considered under the checklist. The Court can of course take any other relevant factors into account in reaching a decision, but the checklist is useful in understanding how the case will be considered by the court.
In relation to the wishes of the children, The Court of Appeal has said that there is no age below which a child is considered to have insufficient maturity for their views to be taken into account and there are a number of cases in which the court not only considered the wishes of the children, but also followed those wishes.
In the proceedings, a CAFCASS (Children and Family Court Advisory and Support Service) officer may be appointed by the court to consider, amongst other things, the children's wishes and to prepare a (section 7) welfare report for the court. In other words your children's opinions will be sought and then presented to the court. CAFCASS will also have a duty to consider if either parent has influenced the children in their views.