Children's Wishes and Feelings Persuasive - But Not Always Decisive

Although children lack legal capacity to make important decisions, their wishes and feelings are increasingly taken into account by family courts. However, in one case, a teenage girl’s desire to leave care and return home to her mother could not be fulfilled by a judge due to continuing concerns about her emotional welfare.

The girl, who was nearly 15, had been taken from her mother’s care largely due to the latter’s aggressive and confrontational behaviour. She had consistently failed to recognise or meet her daughter’s emotional needs or to cooperate with social workers. As a result, the girl had been made the subject of a care order and had been living with foster parents for almost three years.

In asking the judge to discharge the care order and sanction her return home, the girl’s lawyers pointed to a number of positive changes in her mother’s lifestyle and good aspects of her parenting. The thoughtful and bright teenager was doing well at school and had a loving and warm relationship with her mother, with whom she had enjoyed frequent contact throughout her time in care.

The judge acknowledged that the girl’s physical and educational needs could be met by her mother. In rejecting the application, however, she noted the mother’s refusal to accept any shortcomings in her behaviour or to moderate or change it. The girl’s guardian had expressed concern that, if returned home, she would retreat into doing what her mother wanted her to do. Her foster placement had proved successful and maintaining the status quo would best promote her emotional welfare and enable her to achieve her own independence and maturity.