Steven Wade is a family law advisor (McKenzie Friend) with nearly 20 years of experience helping people represent themselves in court. Having been through the system personally and supported thousands of others since, he knows what it’s like to face the stress, confusion, and pressure of doing it alone. This blog shares practical insights that empower you to take control of your case — without the legal jargon or the hefty solicitor’s bill.
At what age can your children decide where they live?
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At what age can your children decide where they live?
- Introduction
- What age can your children decide – the legal position
- So is it 16 or 18?
- What exceptions are there to the above?
- This still doesn’t answer at `At what age can your children decide?’
- So it’s strictly 16?
- What about Gillick Competency?
- Conclusion
Introduction
At what age can your children decide where they live?
If you’re looking for a set age the good news is that there is one legally speaking. The bad news is that like much in law, it comes with caveats, conditions and `it depends’ however. But you don’t want to hear that. You’re probably looking for a specific number
I spend an awful lot of time on social media, particularly TikTok where I get asked this question over and over. When I give the answer (which I’ll be doing in this post) I’ll be told I’m wrong, what the judge in their hearing said, what happened and what seems reasonable. No one ever thanks me for telling them the facts rather than what they want to hear.
Over the last two decades, I’ve supported hundreds of parents through this exact question – both in and out of court. I’ve helped parents argue for and against the view there child is old enough to make major decisions about their lives, including about where they live.
People want certainty – that includes you. This blog post will explain how it all works – both from a legal perspective and in real-life too. Let’s get cracking.
What age can your children decide – the legal position
Let’s start with the basics.
Your children are subject to the Children Act 1989 until they reach the age of 18. This means they – and you – have to follow the law until they’re old enough to not be subject to it.
Section 105,(1) of the Children Act states:
“child” means, subject to paragraph 16 of Schedule 1, a person under the age of eighteen;
It’s important to say that this definition applies only to the Children Act in England and Wales, with other jurisdictions and Acts possibly having different interpretations. This definition applies to everything in the Children Act – bear this in mind.
So that’s straightforward, right?
So is it 16 or 18?
Except, it isn’t clear. Because the Children Act also says:
Section 91(5) of the Children Act 1989 states:
“No Section 8 order… shall be made with respect to a child who has reached the age of sixteen, unless the court is satisfied that the circumstances of the case are exceptional.
A `Section 8′ order includes things like Children Arrangements Orders, Specific Issues Orders and Prohibited Steps Orders by the way.
Under Section 8 of the Children Act 1989, child arrangements orders can only be made for a “child”, which means Courts very rarely make new child arrangements orders for children aged 16 or over. It happens, but as the quote says it’s rare.
In plain English, if a child is 17, the court will not normally make a new order about where they live. This is because the law assumes that children aged 16 or over can make their own living arrangements. But again, there are exceptions to this.
What exceptions are there to the above?
The bad news is that it gets even more complicated. The court can make an exception to this if:
- The court believes there is a safeguarding risk
- A child had a severe disability or mental incapacity
- There is a situation so extreme that the court feels compelled to step in.
An example of this is as follows:
M v F & Anor [2024] EWFC 219 (19 July 2024)
This case involved two siblings, including a 17‑year‑old brother with cerebral palsy and communication difficulties, which required intimate personal care. The sister declined any orders, but the brother’s capacity to decide governance regarding his father’s involvement was limited due to his vulnerabilities.Outcome: The court concluded that exceptional circumstances (his physical disability and inability to make arrangements himself) justified extending the child arrangements order beyond 16, maintaining structured contact with his father
It needs to be said that these are exceptions – it’s rare and your case most likely isn’t one of them.
This still doesn’t answer at `At what age can your children decide?’
OK, I get it. I’m tying you up in knots here. So let me sum it up – what’s the rule for most people? Here it goes:
- You can apply for a child arrangements order (to decide where a child lives or who they spend time with) until your child turns 18.
- But once your child is 16 or over the court will only make or continue an order in truly exceptional circumstances
So in the real world this means your child is likely to be able to decide where they want to live when they reach the age of 16.
Phew! I’m sorry to give you all this – but you need to know.
Your 16-year-old gets to choose. If one of the parents isn’t happy with it and makes an application they’re going to have to convince the court there are exceptional circumstances.
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So it’s strictly 16?
One final wrinkle here. The answer to this is `no’. Not in the real world.
The family court is deeply pragmatic. It will not make an order that won’t work. Children are expected to follow orders, as well as their parents. This was set out by Mr Justice Peter Jackson (now Lord Justice Peter Jackson):
Re W (A Child) [2012] EWCA Civ 999
“A child who is the subject of a contact order is expected to comply with it, just as much as the parent with care.”
But the court is pragmatic. If it is faced with a child who will blatantly ignore an order, the court is possibly unlikely to enforce it unless there are exceptional circumstances (see above for those).
I’ve seen how this plays out in the real world. I’ve seen both 15 year olds removed from their home with a parent they want to remain with. I’ve also seen 9 year olds empowered to choose which parent they live with. It can seem pretty hit and miss.
Speak to anyone who has faced situations like this and they’ll probably say it feels arbitrary. This could be because they don’t know all the facts of the situation, the inconsistent nature of the family court or a combination of both.
Remember however – what a child wants (ascertainable wishes and feelings) are just one of seven factors set out in the Welfare Checklist. All of these factors are weighed up when a court has to make an order.
What about Gillick Competency?
No post on this topic would be complete without mentioning Gillick Competence. It seems to be a common belief that this is the test the court uses when deciding if a child can choose. This isn’t the case however.
That’s not to say it doesn’t play a role – it does.
First of all, you need to understand that it only applies when deciding if a child under 16 could consent to medical treatment (such as contraception) if they had enough understanding of what was involved – even if their parents disagreed. The case that decided this was Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112.
How does this relate to cases in the Children Act?
Strictly speaking, it doesn’t. There are no standalone “Gillick Rules” in the Children Act. But they do integrate its principles into court practice, albeit in a nuanced way. And courts increasingly rely on Gillick maturity when weighing wishes too.
Judicial guidance and commentary – such as Mills & Reeve – confirm that, as children mature, their views carry more weight. For example, in AS v CPW [2020] (14½-year-old) and SH (A Child) [2020] (12½-year-old), judges explicitly applied Gillick reasoning, considering whether those children fully understood and could assert their own views.
What does this mean to you? Simply put, it means the court will take into account Gillick Competency, but it’s still the judge in the hearing who decides how much weight to attach to it when making a decision.
Conclusion
I’m sorry I can’t be clearer on this. As I mention above, the general rule is you can apply for a child arrangements order (to decide where a child lives or who they spend time with) until your child turns 18. But once your child is 16 or over, the court will only make or continue an order in truly exceptional circumstances.
It means that you need to be clear about this (and possible factors and exceptions) when you decide what to do in your particular situation. And even if you are clear the court (and most likely your ex-partner) may not agree with you on this.
Updated 20th June 2025
This post is for informational purposes only and does not constitute legal advice.
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