The case of L v L
Can they really “vote with their feet”?
When are an older child’s strongly expressed wishes and feelings not followed by the Court?
It is often said that the Courts rarely deviate from an older child’s wishes when making a living with order and that, effectively, teenage children can “vote with their feet”. Indeed, the practicalities of how to enforce an order for a teenager to live with a parent they don’t want to live with is a serious consideration.
There are, however, circumstances in which a Court may well not follow an older child’s wishes and feelings. One such case, in which I acted for the mother, was reported this week as L v L (Child: Arrangements Following Treatment)  EWHC 1212 (Fam) (19 May 2017).
The case involved a 14 year old girl (N) suffering with severe anorexia, who was sectioned under s.3 of the Mental Health Act 1983 and who wished to return to live with her mother on discharge from hospital. The family’s incredibly difficult circumstances were not just harrowing for all the parties, but also meant it was a very challenging case to deal with from the point of view of all the professionals involved in it.
The mother also wished N to live with her on discharge. She accepted that her health difficulties meant that “physically I am arguably not the best person to care for N” yet asserted that she could do so and in any event was best placed to support N emotionally. She argued that an order that she live with her father against her wishes would give N no incentive to get well and start eating again. The father, who represented himself, maintained that the mother was not able to care for N and that she should live with him.
It was accepted by all parties that N, who was separately represented through her Guardian, had clearly and unequivocally expressed a strong wish to return to live with her mother. N’s consultant psychiatrist gave evidence that he was “certain that N’s stated wish to live with her mother reflected her wishes”. However, he also considered that N felt torn between her parents and was adversely affected by her knowledge of the litigation between them.
It was also accepted by all parties that N’s date of discharge from the hospital was not imminent and the Court had therefore to consider whether it was the appropriate time to make an order or indeed if an order should be made at all.
Mr Justice MacDonald concluded that it was in N’s best interests for an order to be made now and for her to be ordered to live with her father, against her strongly expressed wishes. He found that N felt a “great deal of responsibility for her mother’s health and wellbeing” and that “the magnetic welfare factor in this case is the need for N to have as much certainly about her future living arrangements as possible”. He was satisfied that “N needs to have all responsibility for the decision of where she is to live upon her discharge removed from her”.
Mr Justice MacDonald addressed the case law relating to the wishes and feelings of older children and reminded us that the wishes and feelings of a mature child do not carry any presumption of precedence over any of the other factors in the welfare checklist (Re P-J  2 FLR 27). Although the older child’s wishes and feelings are likely to be more influential, the decision is the Court’s and not that of the child (Re P (Minors) (Wardship: Care and Control)  2FCR 681). Where adherence to the wishes of an older child may seriously compromise their long-term welfare, the Court may override those views (Re A (Intractable Contact Dispute: Human Rights Violations)  1FLR 1185).
L v L was clearly a difficult case, with a number of unusual factors, including both the mother’s and N’s serious health conditions. In a more straightforward case, with two parents competing for an order that a teenage child lives with them, that child’s clearly expressed wishes and feelings are still likely to be highly influential on the Court. It is only when those wishes could be seriously detrimental to their own welfare that the Court is likely to override them.
Are you concerned about how your tween or teen is affected by: anger, mood swings, exam stress, bullying, or social media?
On 14 June Rayden Solicitors will be hosting a panel of experts to discuss what life looks like for teens and tweens in 2017 and how parents, carers and professionals can support them. This seminar covers issues affecting children aged 9 to 17. For more information please visit the following page – https://www.eventbrite.co.uk/e/supporting-tweens-and-teens-tickets-34279732603utm_term=eventurl_text