teenagers law

The recent newspaper headlines in respect of the High Court proceedings between Madonna and her former husband Guy Ritchie have placed into sharp focus once more the role of the court when determining an issue relating to an older child. In that particular case the issue to be considered was whether or not their son, Rocco aged 15, could remain living with his father. Madonna had claimed that her son had been illegally detained following a visit to his father last year. Rocco had previously lived with his mother following the parents’ divorce in 2008.

When the Court is asked to make a decision in relation to a child, its paramount consideration will be the child’s welfare, sometimes referred to as their “best interests”. The Court has a discretion in making that determination but it will be guided by what is known as the “welfare checklist” contained in section 1(3) of the Children Act 1989. The first item in the checklist directs the court to have regard to the ascertainable wishes and feelings of the child concerned in light of their age and understanding.

It is perhaps natural, therefore, to take the view that as a child grows older, more weight will be attached to their wishes and feelings. However, the wishes and feelings are not determinative. It is just one of the factors that the Court must consider and the weight attached to each of the components of the “welfare checklist” will vary from case to case.

There is no given age by which a child’s wishes will automatically be followed by the Court and it will also want to gauge their understanding. Clearly the older a child becomes, more consideration will be given to their views and also what role they should play in the proceedings. This might even mean them meeting with the Judge or becoming a party to the proceedings. The course of action to be  adopted will depend on the individual circumstances of the case. Nonetheless, the ultimate issue for the Court is that of welfare and not wishes. As such the wider test of welfare can direct the court to make a decision that may be counter to what even older child is requesting.

In such circumstances, it is important to seek advice early, especially if there are issues relating to an older child. This does not necessarily mean Court proceedings having to be commenced as matters can be dealt with through agreement or alternative approaches, such as collaborative law.

At Stephens Scown we have solicitors who are members of the Law Society’s Children Panel and Accredited Resolution children specialists to help you look at all the options available to you.


Mark Smith is a partner and specialist family solicitor with a specialism in disputes involving children. If you would like to contact Mark, then please call 01392 210700 or email family.exeter@stephens-scown.co.uk.