HOW much say should children be given in the decision of which parent they live with after their parents divorce or separate? The Children Act is crystal clear that the “wishes and feelings” of the child concerned should be taken into account, according to their “age and understanding”.

Courts will generally deem a child competent to have an input in these most visceral of decisions from the ages of 9 to 11. Anthony Douglas, the head of the Children and Family Court Advisory Support Service in England, believes that children as young as seven should be given a say.

Children will rarely be asked to choose between mother or father, merely to explain what it is they like or dislike about living with one or the other — or both.

An apparently articulate 12-year-old, Molly Campbell, also known as Misbah Iram Ahmed Rana, will have no difficulty in persuading those handling her case that she should be listened to.

Whether she went willingly with her father or not, however, her removal to Pakistan was a blatant breach of the court order that had awarded her care to her mother.

It therefore seems likely that she will be returned to Scotland, the country with jurisdiction of her case, under the Anglo-Pakistan agreement of 2003 on child abduction, for her future to be settled.

It is highly likely, nonetheless, that the family courts in Pakistan will want to liaise with their opposite numbers in Scotland to satisfy themselves that her wishes, and those of her family in Pakistan, are taken into account.

Even where abduction is a criminal offence (it usually is) and the police and courts are involved, lawyers acting for both sides are now increasingly turning to independent intermediaries, as has happened in this case with the MP Mohammed Sarwar. Experience suggests that this can be far more effective in helping parents to come out of hiding and to accept the fact that the child’s position must be regulated within the law.

In court, Misbah would be appointed her own guardian or representative, to ensure that her views are heard. This is crucial, not just to help resolve the case, but to help mitigate the long-term effects of the abduction.

One clear theme to emerge from research into such cases, and which is common to both the parents and the children, is the effect that the abduction has had on their subsequent ability to trust others. Friendships and relationships, including those between family members, are coloured by the abduction, which may result in an unwillingness to commit to any new relationship.

Children who have been caught up in an abduction have a tendency afterwards never to “let their guard down”, so helping to restore a child’s ability to trust another person is crucial.

Determining what a child wants is not easy. Children may say one thing about one parent in one setting and something quite different when with the other parent. As Andrew Green, chair of Resolution, an association of 5,000 family lawyers, says: “We don’t always know whether what a child says is what they really mean.”

And as Anne-Marie Hutchinson, chairman of the charity Reunite, points out, the courts’ first duty is to protect a child’s welfare, not to do what the child wants. “What a child says they want will not always be in their best interests. They may say they want to stay with someone who is a bad parent.”

Judges also know only too well that it is pointless making a decision that is likely to be ignored by a child who is capable, or indeed likely, to run away if forced to stay with a parent or in a place they do not like. In Misbah’s case, they will weigh up her stated desire to be with her siblings and her father in Pakistan.

They will also consider her views on her relatively new family surroundings with her mother and a new baby on a remote Scottish isle.

If the courts in Pakistan decide not to order Misbah’s return, it will send out a worrying message. Parents and children must see that breaking the law is not the way to resolve things.

Explore UK News

• Crime News

• Education News

• Health News

• Science News

• Scotland News

Times Recommends

• Sarah Brown says 'no thanks' to veal at G8 - twice
• Stockton-on-Tees is obesity capital of Britain
• Stores blame poor sales on Murray factor