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A child holding a hand of each parent.
In England and Wales, once a child reaches the age of 16 years then they are able to leave home without their parents’ permission, although the parents will remain legally responsible until the child reaches the age of 18, so presumably, although there is nothing set down in the Children Act 1989 to confirm this, a child can also decide with which parent to live without the other having much say in the matter. However, if a child is below this age, and both parents are happy for the child to choose for themselves (or at least have some input as to where they live), then whatever decision is made can be implemented without the need for a Court application. It must be stressed of course that a child should be of an age where he or she is capable of making such a decision. 

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Deciding who a child should live with after the parents have divorced 

When there are children involved in a divorce or separation, normally the consideration at the front of both parents’ minds will be who the children are going to live with. 
Quite often, the parents will be able to decide between them who will be the “primary care-giver”. This could be the parent who has the most time at home (for example, if one parent doesn’t work or works more child-friendly hours) or it may be the parent who has normally been responsible for the day-to-day care of the children. It is still assumed by many that the care of children is the responsibility of the mother. 
Alternatively, if circumstances allow, it may be agreed that care of the children will be shared with a child spending a set period of time at each parent’s house - for example, one week with one parent then one with the other, or four days with one parent then four days with the other. 

Who has more rights? 

It is a common misconception that the mother has more rights than the father and the Court will always order that the children live with her. This is not the case at all. If the parents are married, or if unmarried and the child was born after 1st December 2003 and the father is named on the birth certificate, whether at the time of the birth or subsequently, then both parents will have equal parental responsibility. 
Section 3(1) of the Children Act 1989 describes this as being ‘all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property.’ 
So it does not just cover the ‘rights’ a parent may have in respect of the child but also the duty of the parent to look after the child appropriately. 
It is important to note that if a father is not named on the birth certificate then he will not hold parental responsibility and unless the mother is willing to enter into a Parental Responsibility Agreement then an application for a Parental Responsibility Order should be made to the Court quickly. Without parental responsibility the father will not be able to consent to medical treatment for the child or have his views heard in relation to the major decisions in a child’s life. The application will normally be made at the same time as an application for a Child Arrangements Order. 

What if you can’t agree who your child should live with? 

Quite often, our Family Law Solicitors in Preston will be contacted by one parent who is unable to agree with the other where the child or children should have their main home. If you find yourself in this situation, you should seek legal advice from expert Family Law Solicitors, such as our team at MG Legal. 
There are usually three main options to consider to resolve the matter (depending on whether there has been any domestic abuse), but whatever route you choose to take, our Family Law Solicitors would always encourage you, first and foremost, to consider the needs of your children, what is in their best interests and not what is in your best interests, and how any ongoing conflict between their parents could affect them. 
One option is mediation. The mediation process gives you and your ex-partner or ex-spouse a chance to discuss child arrangements with the guidance of a specially trained mediator. It can allow the parties to reach a mutual decision as to who will be the primary care-giver, and to agree how much time the children will spend with the other parent (often referred to as the ‘non-resident’ parent). 
If mediation is of no help in reaching a decision, or before you even consider attending mediation, you may wish to consult our expert Family Law Solicitors in Preston to discuss other ways of agreeing contact. This could initially take the form of a letter to the other parent, to attempt to keep matters amicable, reach an agreement quickly, and keep legal costs down for both parties. 
If neither of the above have the desired effect, our Family Law Solicitors will be able to guide you on the next step which will be to make an application to the Court for a Child Arrangements Order, under section 8 of the Children Act 1989. 

Will the Court take into consideration who my children want to live with? 

Within the Court application process, it is normally Cafcass, that will be asked to prepare a report and make recommendations about where the child should live. Cafcass will take into account the welfare checklist contained within section 1 of the Children Act 1989, which will include the child’s wishes and feelings “in accordance with their age and understanding”. We can have a younger child who is mature for their age, very forthright and can easily explain how they have come to their opinion on the one hand, and on the other we can have an older child who is scared of expressing their true wish or who does not want to go against the wishes of one of the parents as they do not want to upset them or they feel responsible for that parent. The voice of the child is becoming more and more important in the eyes of the Court however the Court will not necessarily do what the child wants if it is clearly not in the child’s best interests. 
If it is felt that it is in the best interests to be cared for by both parents – this does not need to be an exact 50/50 split as this can be difficult to put into practice – then the Court can make a Child Arrangements Order which states the child is classed as living with each parent rather than living with one parent and spending time with the other. This can be helpful in removing some of the ‘power’ a parent may feel they have over the other if the order says a child lives with them. 

What if there is a Court Order but my child wants to live with me? 

If there is a Court order in place which states who a child should live with, and the child expresses a clear wish to live with the other parent, then if the parents agree to the change the child can change residence without the parents having to return to Court. However there is always the risk that the parent who is named in the order as the parent with main care will change his or her mind and, for example, keep hold of the child after spending time with them, in which case an application will become necessary. It is therefore worth considering an application to vary the order at the outset – an agreed revised order can even be sent to the Court for approval with the application. In some cases, it is the child that will ‘vote with their feet’ and make it clear they are not returning to the other parent. These situations can be difficult as to force a return may make a child rebel. 


So to summarise, the Children Act 1989 does not specify an age which a child should reach to be able to make a decision about with which parent they live, but a child can leave home without their parents’ permission at 16, provided it is safe for them to do so, and the parents will continue to be legally responsible for the child until they reach 18 years in any event. 
If you wish to make an application to the Court to amend an existing Order or discuss the arrangements for your children, you can contact our team of Family Law Solicitors in Lancaster by emailing family@mglegal.co.uk or by calling 01524 581 306. Alternatively, contact one of our family law experts in Preston, on 01772 783314. 
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