Child arrangements—what this means
If you’re separating or divorcing/dissolving a civil partnership, and you have children, you’ll need to come to an agreement on how you’ll look after them. As parents, you’re responsible for your children’s health, safety and wellbeing. The law, meanwhile, is focused on protecting your children’s rights and making sure they have a relationship with both parents (unless there are reasons not to, such as if they’re at risk of harm).
These arrangements used to be called “custody” and “access”, then “residence” and “contact”, but are now known as child arrangements. While the aim is for parents to decide these arrangements together, sometimes there are disputes. At this point, the court can assist and you can apply for a child arrangements order to decide who the children should live with and how often they should spend time with the other parent.
Below, we cover the most important aspects of making child arrangements as part of a separation or divorce.
Making child arrangements
Everything you decide should be in your children’s best interests. You’ll need to agree which parent they’ll live with and how much time they’ll spend with the other parent.
In many cases, children remain with the parent who has played the most significant role in looking after them. This is often, but not always, in the family home. The parent they live with is known as the resident parent.
At the same time, the other parent—the non-resident parent—will spend time with the children and contribute financially towards their care by paying child maintenance (also called child support).
Some separating couples agree to share care of their children. This is known as a shared residence.
Children can live with either parent, and if they’re old enough to have a say, you should take their wishes and feelings into account. You should also consider:
- their age, gender and circumstances
- what they need physically, emotionally and educationally
- how a change in circumstances would affect them
- has one parent been the primary carer previously and should this continue? (in general, rather than financially)
- whether there’s a risk of them being harmed (if there’s domestic violence, for example)
- who your children will live with (the resident parent)
- when they will spend time with the non-resident parent and with extended family (grandparents, for example)
- whether shared care will take place and how that will work
- how financial support (child maintenance) will be provided
- how you’ll deal with any issues relating to your children’s education, mental health and healthcare
- how you, as parents, will communicate and share information in the future—for example, which decisions can be made without consultation, and which require a joint decision
- how you might introduce new partners into the children’s lives
- where your children will live
- how much time they should spend with the non-resident parent
- The ascertainable wishes and feelings of the child concerned (considered in the light of his/her age and understanding)
- His/her physical, emotional and educational needs
- The likely effect on him/her of any change in his/her circumstances
- His/her age, sex, background and any characteristics of his/her which the court considers relevant
- Any harm which he/she has suffered or is at risk of suffering
- How capable each of his/her parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his/her needs
- The range of powers available to the court under this Act in the proceedings in question
- taking the child out of the country
- moving them to a different school
- having them undergo medical treatment
- exposing them to people whose behaviour or influence might be harmful
- removing a child from school or a parent’s care without consent (this is the most common PSO).
- a step-parent
- any person who has been granted a child arrangements order that says the child must live with them
- any person the child has lived with for at least three years
Right to contact
Although parental responsibility gives you certain legal rights and responsibilities in respect of your children, it doesn’t give you an automatic right to have contact with your children. By law, that right belongs with the children themselves and there is a presumption in favour of your children having a relationship with both of their parents (unless exercising such right would put them at risk).
Children usually find it very difficult when their parents’ relationship ends, and it’s much less stressful for them if you can agree contact and living arrangements amicably between yourselves.
All families are different and there’s no single right outcome. If you can’t come to an agreement, the court may have to make these decisions for you.
What happens when parents agree
Making a parenting plan
If both of you agree arrangements for your children after you separate, you may want to consider making a parenting plan. This is a written document that sets out what you have agreed. This can help to prioritise your children and avoid any conflict or dispute between the two of you.
The plan can be as detailed or concise as you like. Start with subjects on which you definitely agree, before moving on to more complicated issues. You don’t need to have determined everything at once—you can add to the plan as you go along.
Your parenting plan can detail:
Your parenting plan shouldn’t include information about financial settlements and how you plan to divide your money, home and assets.
How solicitors can help
Parenting plans are not legally binding. If you feel a legally binding agreement is needed you would need to obtain an order from the court. This can be by consent. If you choose to do this, it’s recommended that you obtain legal advice and that a solicitor drafts the documents for you. Graysons is able to provide this service.
The consent order lays out the terms both parents have agreed, as set out in your parenting plan. You submit the order to the court and a judge will decide whether to approve it. It is likely that there will need to be a court hearing as the court will need to carry out safeguarding checks and assess whether the order is appropriate. The court is also likely to want to know why you feel an order is needed as the court will only make an order if it is thought to be in the children’s best interests.
Even if you decide not to go to court, Graysons can still give you advice on what to include in your parenting plan and draft the document for you once you’ve agreed its terms.
What happens when parents can’t agree
If you’re unable to reach an agreement on your children’s care, you must attend mediation (although there are exceptions, such as cases involving violence and domestic abuse). By law, you can’t apply for a child arrangements order (or any other court order, except for a consent order) without having attempted mediation. Mediation can be a quicker and cheaper way of resolving a dispute, and if successful it can give you more control over the decisions you make about your children and can facilitate better communication between you both in the future. A solicitor can refer you to a mediation service and provide legal advice alongside the process.
As mediation is entirely voluntary, either parent can end it at any time. Alternatively, the mediator might choose to terminate the process if they feel the parents aren’t fully committed to it.
What the process involves
Mediation information and assessment meeting (MIAM)
Both parents attend a preliminary mediation information and assessment meeting (MIAM), usually alone rather than together. The family mediator—an independent third party—assesses whether your case is suitable for mediation, taking into account any domestic abuse concerns and your own willingness to mediate with your ex-partner.
If the mediator deems your case to be unsuitable or one parent declines to attend, the mediator will give you a signed and certified form that allows you to apply for a court order.
The mediator won’t tell you what to do—they are there to help you communicate with respect and come to an amicable agreement. They must also remain completely neutral. They will, however, encourage you to put your children’s wishes and feelings ahead of any personal priorities. A solicitor can give you legal advice alongside the mediation process and can discuss issues that you may wish to raise in your mediation sessions. A solicitor can also discuss and advise you on any agreement you reach.
If you can’t find an agreement or the mediation breaks down for any other reason, the mediator will give you a signed and certified application form you can submit to the court. If you haven’t already done so, you should seek legal advice at this point.
How solicitors can help
Solicitors can advise you whilst you are attending mediation, although, usually, they wont be present in the session itself. They can discuss issues with you before or after each session and advise on the next steps.
Any agreements you make during mediation aren’t legally binding, so can’t be enforced in court. If you intend to use the agreement reached in mediation to apply to the court for a consent order, you might want to have a solicitor look over the terms of the agreement first, to provide legal advice and make sure everything is as it should be.
Child arrangements order
What is a child arrangements order?
If you are unable to reach an agreement through mediation, you can apply to the court for a child arrangements order. This determines:
A child arrangements order is usually granted until the child is 18 years old.
At Graysons, we can guide you through this process and prepare the relevant documentation.
What does the process involve?
Below, we explain how the court process might unfold. Not all steps apply to all cases, as some might be resolved earlier and there may be additional hearings depending on the complexity of the issues to be determined.
Step 1: Submit application to court and serve papers on the other parent
Your paperwork is submitted to the court. The court issues the application and sends a copy of it to CAFCASS (Children and Family Court Advisory and Support Service). Your solicitor (or the court, if you have no legal representation) serves a copy of the issued court papers on the other parent.
Step 2: Other parent acknowledges receipt and submits paperwork
The other parent has 14 days to acknowledge that they’ve received the papers and fill in their answer form.
Step 3: CAFCASS carries out safeguarding checks
CAFCASS conducts checks on both you and your ex-partner with the police and social services.
Step 4: First hearing dispute resolution appointment (FHDRA) at court
The preliminary hearing of your court application. A CAFCASS officer will attend to offer further guidance. If you are unable to reach an agreement or there are safeguarding concerns which need to be investigated, the court will make directions as to how your case should proceed. This may involve further hearings, statements or reports to be undertaken by CAFCASS or social services depending on this issues in your particular case. No one case is the same. How long your case takes will depend on the direction it takes and the complexities.
How long does a child arrangement order take?
This depends on the factors within your case and whether there are any safeguarding concerns. There is no standard time frame and it can take between 6 to 12 months to achieve a final order.
In most cases, it will take around six to eight weeks from when you first apply for the preliminary court hearing (step 4 above) to take place. When CAFCASS has to produce a report, it will normally need about 12 weeks to do so.
Sometimes, the court will be able to deal with certain issues on an urgent basis, however they will always have to carry out safeguarding checks before a final order can be made. You should begin the process with the understanding that your case is likely to take some months to be resolved.
How does the court decide what’s best for the child’s welfare?
When making a decision on child arrangements, the court will use the welfare checklist set out in section 1(3) of the Children Act 1989. Following this checklist means taking the following aspects into consideration:
The court’s priority is always the welfare of the child, and it must bear in mind that any delay in resolving the case is likely to put this at risk. The court must also consider whether making no order at all would be better for the child (known as the “no order” principle).
Can I get legal aid for a child arrangements order?
You can only apply for legal aid for a child arrangements order (or any other order) if you or your child have suffered, or are at risk of suffering, violence or abuse from the other person involved. You must also qualify financially.
In these cases, the Legal Aid Agency asks to see evidence of these circumstances before it can provide financial aid.
What’s the Separated Parents Information Programme (SPIP)?
SPIP is a course focused on the needs of children in families that are going through, or have been through, divorce/dissolution or separation. It’s about trying to limit the harm that children can suffer when their parents separate and aims to help parents find better ways to communicate.
Often, CAFCASS will recommend at an early stage that parents attend this programme. You and your ex-partner would attend separately, so you can speak freely about your situation. The course itself involves two half-days or one full day of watching DVDs and engaging in group discussions.
If the court tells you to attend SPIP as part of your family proceedings, the course is free of charge.
Other court orders
Prohibited steps order
A prohibited steps order (PSO) can cover a range of issues and prevents one parent from exercising their parental responsibility in certain ways – it prevents one parent from doing something. This can include:
Once a court has issued a PSO, it means the parent who wants to take the type of action mentioned above must apply to the court for permission if the other parent—or anyone else with parental responsibility—hasn’t given their consent.
A court might make a PSO alongside an application for another order (a child arrangements order, for example) or on its own. Before you apply, however, you’ll first need to have attended a mediation information and assessment meeting (MIAM) and followed that process to its conclusion. If your application is urgent or there are safeguarding concerns, you may be exempt form attending a MIAM.
Specific issues order
A specific issues order deals with the determination of a particular and important aspect relating to parental responsibility. This can be things such as choice of school, religion, medical treatment or whether the parent can take the child on holiday or move them to a different country.
General questions about child custody/child arrangements
Who can apply for an order?
Either parent can apply for an order, as can:
Grandparents (or any other person) must first seek permission from the court and show that they have a significant connection to the child, before they can apply for a specific issues order.
How do you apply for custody of a child?
The concept of “custody” doesn’t really exist anymore. Instead, separating parents are encouraged to make arrangements that benefit their child as much as possible in terms of protecting his or her right to a relationship with both of them.
If parents can agree on how they’ll look after their child once they’ve separated, they can make a parenting plan and, if necessary, have a court make it legally binding. However, if they’re unable to come to an agreement, they’ll usually need to enter into a process of mediation or, if that fails, obtain a child arrangements order in court.
Scroll up the page to read more about this process.
What does it mean to have full custody of a child?
First of all, the word “custody” is now outdated, and instead we talk about “child arrangements”. The term “full custody” was used in the case of children whom the court determined should live with, and be in the sole care of, one parent rather than both.
The legal terminology changed in 2014 to demonstrate the belief that, wherever possible, children should enjoy a relationship with both parents. So, although a child might live with one parent (the resident parent) all the time, a court will always look to ensure that they are able to maintain a relationship with the non-resident parent too where possible.
How can a mother lose custody of her child?
Here, it’s important to make the distinction between what’s referred to as “custody” (now called “child arrangements”) and parental responsibility (PR).
By law, a mother automatically has PR for her child from the moment the child is born and can only lose it (or parts of it) by virtue of an order issued by a court. However, when parents separate, this doesn’t mean that a court will rule that the child must live with the mother. Any decision a court makes is based primarily on what’s best for the child’s welfare.
If the court deems that a child will be better served living with his or her father, it will make that determination, although it will always look to ensure, where it is safe to do so, that the child has a relationship with both parents.
How can a father lose custody of his child?
Legally, a father is only granted PR of his child if he is married to the mother or, if unmarried, the father’s name was added to the birth certificate. A father’s custody or parental rights can be removed through court proceedings but this will only be granted in exceptional circumstances and if it is in the best interests of the child.
Terminating a father’s parental responsibility or custody of his child will only be justified if the father’s behaviour is exceptional or extreme.
Does child custody end at 18?
The law says that once a child reaches the age of 16, they have the right to choose which parent they’ll live with. However, if you have a child arrangements order this will stay in place until the child reaches the age of 18.
Who pays court costs in child custody cases?
Generally, each party will be responsible for paying their own legal costs in child arrangements cases. However, what’s included here will depend on how the process plays out.
If both parties attend a mediation information and assessment meeting (MIAM) together, they can usually choose to split the fees, as this will be cheaper than attending individual meetings.
If the MIAM doesn’t achieve a resolution and both parties must go to court, hiring solicitors to provide legal advice and representation will incur costs which each party will need to pay themselves. Whichever party applies for the court order (a child arrangements order, for instance) will have to cover that fee (currently £215) too. Depending on your income, you may be exempt from the court fee but will need to complete an application to apply for this.
Who gets child benefit in shared custody cases?
If you share care of your child with the other parent (known as shared care), you will need to agree which parent claims the child benefit.
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