Could a Child Choose Which Parent to Live With?

Q.

I hope you can help. My sister left the father of her children a couple of years ago and married another man. Her oldest child, my niece, is having an awful time as her step father will not accept her and seems to want to do nothing but make her life a misery and it is ruining her self confidence.

She would rather live with her father and although my sister, her mum, got residency and I don't think she would object to her living with him. I wondered whether she had any say now she is 15? If not what happens when she is 16? Can she choose to live with her father even if her mum says no? I hope you answer this so I can try and help a very unhappy child.

A.

This is a very sad situation, although there is light at the end of the tunnel. You have stated that your sister got residency so I presume that there was a residence order put in place when your sister separated from the father of this child. Just in case, I have also outlined the situation if there was no such residence order.

Residence Orders – If Everyone Agrees

If this is the case then a residence order should be adhered to, although if everyone involved consents to your niece going to live with her father, then there may be no need to go back to court: your niece can simply go and live with her father with everyone’s blessing by way of an informal arrangement.

Residence Orders – If Everyone Does Not Agree

If your sister decides that she’s not happy for your niece to go and live with her father, it may be that the matter should be referred back to the family courts in order to have the residence order amended. In such a situation (when the parents cannot agree) it is important to return to court, because if one party merely acts without the consent of the other party and without court intervention, not only could the other party threaten legal action but they would also be in contempt of court. If your niece’s biological father applies for a residence order he will have parental responsibility until your niece reaches 18 (it’s only 16 if the mother has parental responsibility.)

When your niece reaches 16, she will be able to decide where she lives in any event.

No Residence Order

If there is no residence order in place in terms of your niece, there should not be a problem. If both your sister and your niece’s father agree about where your niece should live she can simply go and stay there. If your sister is not happy about your niece living with her father, her father can go to court to apply for a residence order. If such an order is granted, it will automatically give him parental responsibility.

Timing

Given that your niece is already 15 years old, it’s important to bear in mind the fact that the process of obtaining a residence order can take between six months and a year.

Your niece can also apply for a residence order herself, but will have to ask permission from the court (called ‘leave’) to do so.

The Court’s Decision

In deciding whether or not to grant a residence order the court always considers the welfare of the child first. They will also look at your niece’s specific needs: physical, emotional and educational, as well as her age, background and the effect the change in circumstances will have. Also, they will look at how capable her father is of looking after her, and very importantly any harm the child has suffered, or may suffer in the future.

I hope this helps you to understand the situation better as regards your niece, and I hope it is something that can be resolved to everyone's satisfaction as soon as possible.