Child Custody.

Child Arrangements After Separation or Divorce

When parents separate or divorce, one of the most important issues is deciding where the children will live and how much time they will spend with each parent. Many people still use the term "child custody", but in England and Wales, the court usually refers to "child arrangements".

Child arrangements can cover where a child lives, when they spend time with each parent, how handovers take place, holiday arrangements, communication, school issues and other important decisions about the child's upbringing.

The Child's Welfare Comes First

The court's main concern is the welfare of the child. The court will not make an order simply because one parent wants a particular arrangement. It will consider what is in the child's best interests.

Where safe and appropriate, the law generally recognises the importance of children having a relationship with both parents. However, this does not mean that equal time will always be ordered. The right arrangement depends on the child's needs, the family circumstances and any safeguarding concerns.

Shared Care and Equal Time

Some children spend broadly equal time with both parents. Others live mainly with one parent and spend regular time with the other. Some arrangements involve overnight stays, weekends, school holidays, midweek contact, video calls or supervised contact.

Shared care does not always mean a strict 50/50 split. The focus should be on what works for the child in practice, taking into account school, routines, distance between homes, the child's age, emotional needs and each parent's ability to meet those needs.

Reaching Agreement Without Court

Parents are usually encouraged to agree on child arrangements without court proceedings where it is safe to do so. This may involve direct discussion, solicitor negotiation, family mediation, parenting plans or other forms of dispute resolution.

An agreed arrangement can be flexible and easier to adapt as the child grows. However, where there are safety concerns, domestic abuse, coercive control, substance misuse, serious conflict or a risk of harm, court involvement may be necessary.

Mediation and MIAMs

Before applying to court, a person will usually need to attend a Mediation Information and Assessment Meeting, often called a MIAM, unless an exemption applies. The mediator explains the process and considers whether mediation is suitable.

Exemptions may apply in cases involving domestic abuse, child protection concerns, urgency or other specified reasons. If mediation is not suitable or does not resolve the dispute, an application can be made to the family court.

Child Arrangements Orders

A child arrangements order can decide who a child lives with, when they spend time with another person, and what contact arrangements should apply. It replaced older terminology such as residence and contact orders.

The order may include detailed arrangements for term time, school holidays, birthdays, Christmas, handovers, telephone or video contact, travel, passports and other practical issues.

Who Can Apply?

Parents with parental responsibility can usually apply for a child arrangements order. Some other people, such as certain relatives, guardians, step-parents or people with whom the child has lived, may also be able to apply, although some may need the court's permission first.

Grandparents do not have an automatic right to apply in every case, but many grandparents can seek permission from the court where they have played an important role in the child's life.

The Welfare Checklist

When deciding what is best for a child, the court may consider the welfare checklist. This includes the child's wishes and feelings, depending on the child's age and understanding, as well as the child's physical, emotional, and educational needs.

The court may also consider the likely effect of any change, the child's age, sex, background and relevant characteristics, any harm the child has suffered or may be at risk of suffering, and how capable each parent or relevant adult is of meeting the child's needs.

Specific Issue Orders

A specific issue order can be used where parents cannot agree on a particular question about a child's upbringing. This may include which school the child should attend, medical treatment, religious upbringing, surname changes, passports or taking the child abroad.

The court will decide the specific issue by applying the child's welfare as the central consideration.

Prohibited Steps Orders

A prohibited steps order can prevent a parent or other person from taking a particular step in relation to a child without the court's permission. This may include preventing a child from being removed from the country, moved to a different part of the UK, changed school or exposed to a particular risk.

These orders can be important where urgent action is needed to protect a child or prevent one parent from making a major decision without agreement.

Changing Existing Arrangements

Child arrangements may need to change as a child grows older or family circumstances change. A move, a new school, changed working hours, health issues, safeguarding concerns, or the child's own wishes may all justify reviewing the arrangements.

If parents can agree on changes, they may not need to return to court. If they cannot agree, an application can be made to vary an existing order. The court will again consider what is in the child's best interests.

If One Parent Breaches an Order

If a parent does not follow a child arrangements order, the other parent may be able to apply to enforce it. The court has the power to address breaches, but it will still focus on the child's welfare.

Possible outcomes may include a warning, variation of the order, unpaid work requirements, compensation for financial loss or, in serious cases, further court action. The court will consider why the order was breached and whether there are safeguarding issues.

Relatives and Other Family Members

Child arrangement disputes are not always only between parents. Grandparents, wider family members, step-parents or guardians may become involved where a parent has died, is unwell, is unable to care for the child, or where the child has lived with another family member.

Some relatives may need permission from the court before applying. The court will consider the relationship with the child, the reasons for the application and whether the proposed involvement would promote the child's welfare.

Domestic Abuse and Safeguarding

Where there are allegations of domestic abuse, coercive control, substance misuse, neglect, violence or risk of harm, the court may need to take protective steps. This can affect whether contact takes place, whether it is supervised, and how handovers are arranged.

The court may ask Cafcass to carry out safeguarding checks and provide information or recommendations. In more serious cases, there may be fact-finding hearings or involvement from children's services.

Children's Wishes and Feelings

Thechild'ss wishes and feelings can be important, particularly as the child gets older and is better able to express a clear view. However, the child does not make the final legal decision.

The court will consider the child's age, maturity, understanding and whether their views appear to be freely expressed or influenced by pressure from either parent.

When Legal Advice May Be Needed

Legal advice may be needed where parents cannot agree where a child should live, contact is being stopped, one parent wants to move away, there are safeguarding concerns, an order is being breached, or a specific issue such as school, medical treatment or foreign travel cannot be resolved.

A family solicitor can advise on negotiation, mediation, court applications, child arrangements orders, prohibited steps orders, specific issue orders, enforcement and urgent applications.

Current Position

The law in England and Wales focuses on child arrangements rather than the older language of custody and access. The court's priority is the child's welfare, not the convenience or preference of either parent.

Parents are encouraged to reach agreement where safe and possible, but court orders are available where agreement cannot be reached or where the child needs protection.

Disclaimer

Solicitors.com is not a firm of solicitors and does not provide legal advice. The information on this page is for general guidance only and should not be relied upon as a substitute for advice from a regulated solicitor. Family law and court procedure can change, and how the law applies will depend on the facts of each case.

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