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When are you too old to be a child? Once you become a parent, it could be said that your child is your child forever, whether they be 20, 40 or 80 years of age. Of course, the law doesn’t see it quite that way; neither, generally, does the child. You might expect strict rules concerning the point in a child’s life when the law should resist intervening in a dispute between parents over their arrangements, but a recent decision of the Court of Appeal has shown that this is not quite the case.

Re C (Older Children – Relocation) concerns a family that has been separated for ten years and in and out of court litigation about their post-divorce arrangements for much of that time. The couple’s two boys are now 17 (“E”) and 15 (“J”). Their parents are wealthy, although, given that they have spent around £850,000 in court costs in the last couple of years, not as wealthy as they used to be. They are continuing to fight about the financial repercussions of their divorce, but this particular Court of Appeal hearing related to a request by the mother for the court to allow her to move to New York with the boys, which the lower court had refused.

The Court of Appeal recognised that, following amendments to the Children Act made a few years ago, the rules about sticking court orders to children in their late teens are now a little confusing. It is clear that what is permissible depends on the section of the statute under which an application to court is made. However, where the request is by a parent to relocate abroad with children, there are two different sections under which the application can be made, depending on the circumstances and (to an extent) the applicant’s whim. This leaves the legal position in some confusion – under section 8 the bar is 16, and under section 13 it’s 18. So could the court make an order about whether this 17 year old could be taken abroad to live? And, more importantly perhaps, should it have done?

The court heard from both boys via statements that they wanted to be with their mother, and this included moving to New York if that was where she would be. Their father, however, did not agree to the move.

The court observed that the boys are mature and have no qualities that would require the court to be additionally protective of them. They recognised that “The simple fact is that E is too old to be directed by the court in a matter of this kind…. This is not to ignore the common interests of this strong pair of brothers, but to recognize the proper limits on the court’s exercise of its powers in the case of a mature and intelligent older child who is now 17 years of age.”

The court decided that it should look beyond the age-limit provisions of the statute, and that the correct way to approach the decision was in line with one of the fundamental principles of the Children Act: that the court should only make an order about a child if sure that it is better to do so than to make no order at all (lawyers refer to this as “the no order principle”). Instead of rejecting the mother’s application, the judge should have removed the effect of all orders from E, and should also have directed that all existing orders in relation to his brother J, now 15, should cease on his 16th birthday. There was no reason for them to stay in force: the boys have no characteristics that require the court to offer them additional protection. The outcome would free the older boy to make his own decision, and would give the younger brother certainty about where he would be to complete his school year, and his GCSEs; after his 16th birthday, it would be his decision where to live, and with whom, and when.

So E can now do what he wants: he is not subject to any order of the court, and is free to move with his mother to New York should he decide to do so. J must stay in London to finish his school year, but when he turns 16 he can make his own decision too. What we don’t know, of course, is whether the mother will now move to New York or whether she will wait until J is officially old enough to make his own decision to come with her. She has previously said she will move whether or not the children accompany her. Financial proceedings between the parents carry on; maybe her final decision will be made after those are concluded.

This decision indicates that the court should be slow to apply family law orders past children’s 16th birthdays unless there are additional reasons why children need longer protection. The fact is, as family lawyers and parents both know well, children will vote with their feet if they are unhappy with arrangements. The older a child gets, the more account must be taken – by parents, lawyers, and courts – of their views about where, how, and with whom they live, and when. Here, the court acknowledges that you can’t make an ordinary 16 or 17-year old child do something by telling them it is in their best interests. They have the right, in most cases, to decide that by themselves. Issues often arise when parents try to keep control of adolescents who have grown out of arrangements made for their care when they were much younger, and want to have a greater say in where they live and when. Family mediation can often assist in this situation, and, by involving them where appropriate, can ensure that young people feel their views are being taken into account.

If you have any questions about arrangements for children, or any other family law matter, do call us on 01223 443333 and make an appointment to see Tricia, Adam, Sue, Simon or Gail.