On Monday, Madonna was given permission by the High Court in London to withdraw her application for an order that Rocco should be returned to her in the US.  

Rocco, now age 15, went to live with his father at the end of last year without his mother's agreement.  Madonna started proceedings in the US, and the US Court ordered Rocco's return.  But he didn't. 

This raises a myriad of difficult questions which often arise in Court proceedings involving children. One in particular, is to what extent should a child's wishes and feelings be taken into account?  

In the UK, whenever the Court is making a decision about the arrangements for children it must have regard to the 'welfare checklist', otherwise known as s.1(3) of the Children Act 1989.  One of the factors on the welfare checklist is 'the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding)'.  

If a child is 2 years old, wishes and feelings won't be taken into account.  If a child is 14 or older wishes and feelings are likely to be a determining factor, unless there are other compelling considerations that override this, such as harm a child might suffer.  If a child is 10 or 12, the extent to which wishes and feelings will be taken into account is less clear, and will depend on maturity and a balancing factors pf all of the other factors on the welfare checklist. 

This can be very difficult for the parent who the child wants to leave, especially if they feel that the child has been influenced by the other parent. Legal advice in these sorts of situations will vary depending on the circumstances, but will often be along the lines of:- 

The Court can make an order in relation to arrangements for children until their 16th birthday, unless there are exceptional circumstances. However, the closer the child gets to 16, the more likely their wishes and feelings will be the determining factor, unless there is another overriding factor. Often therefore the best thing to do in the long term is for that parent to support the move, if that is what the child wants, but to ensure that the child is aware that they are welcome to return any time they like.