Who decides child custody arrangements?

First things first, even though the term child custody is still frequently used, there has been no such concept legally speaking for over 30 years. ‘Contact’ and ‘residence’ orders have also been replaced and we should instead be referring to ‘child arrangements’ when talking about when, where and with whom children ‘live’ and/or ‘spend time’.  There is also a push amongst some family practitioners for Child Arrangements Orders (where appropriate) to provide for the child to ‘live with’ both parents, rather than just one. Semantics are important and making this slight change can help to reduce parental conflict by making both parents feel that they are on an even footing when it comes to their children.

So, who decides what child arrangements should be in place?

It is best for children if their parents can work together to sort out the arrangements for their care between themselves, without the need to involve the family court. In fact, there is a ‘no order’ principle that applies to child arrangements which means that the court will not make an order unless it is in the interests of the child to do so.

Sometimes when parents’ separate it can be very difficult for them to have conversations about the arrangements for their child. Particularly if they are still dealing with the conflict and high emotions that often accompany the breakdown of a relationship. In these circumstances, separated parents should consider one of the many dispute resolution methods available to help them resolve their parental conflict, and my colleague Polly Dallyn has written an excellent piece setting out some essential guidance on this subject: https://www.familylawpartners.co.uk/blog/co-parenting-essential-guidance-for-separating-parents

How can we resolve any disputes?

There are many different options available to separated parents who are seeking to resolve their disputes without turning to the family court for assistance. I have set some of these out below along with links to other Family Law Partners blog posts where you can find out more information on that particular form of dispute resolution:

• Mediation (to include child inclusive mediation where older children are involved) – https://www.familylawpartners.co.uk/blog/top-ten-benefits-of-mediation
• Collaborative law – https://www.familylawpartners.co.uk/blog/collaborative-law-back-to-basics
• Arbitration – https://www.familylawpartners.co.uk/blog/expansion-of-the-childrens-arbitration-scheme-to-include-relocation-of-children
• Negotiations through solicitors (also known as ‘solicitor-led negotiation’) – this can assist where direct discussions may have broken down and you would feel more comfortable corresponding through lawyers.

What happens if parents cannot reach an agreement about child arrangements?

Where separated parents really are unable to reach agreement about the arrangements for their child, they may feel that they have no option but to make an application for a Child Arrangements Order through the family court.  A Child Arrangements Order is an order that details with whom a child is to live, spend time or otherwise have contact with (whether direct or indirect). There is a presumption when the court deals with an application for a Child Arrangements Order that each parent should be involved in their child’s life, although it is important to note that this presumption does not apply where that involvement would not be in the best interests of the child’s welfare.

Separated parents who do seek assistance from the family court should be aware that there is ‘no one size fits all’ approach to child arrangements, and what happens in each case will be dependent on the circumstances of the individual family and what is in the best interests of the child who is the subject of the application. The court will, however, always take into account certain factors, known as the Welfare Checklist, when making any decisions about arrangements for children. These are:

• The ascertainable wishes and feelings of the child concerned (considered in light of their age and understanding);
• The child’s physical, emotional and educational needs;
• The likely effect on the child of any change in circumstances;
• The child’s age, sex, background and any other relevant characteristics;
• Any harm which the child has suffered or is at risk of suffering;
• How capable each of the parents, and any other relevant person, is of meeting the child’s need.

If you would like to know more about what happens at court, have a read of our factsheet here: https://familylawpartners.co.uk/wp-content/uploads/2021/09/Family-Law-Partners-Arrangements-for-the-children-following-relationship-breakdown.pdf

Ultimately, if separated parents remain unable to reach a consensus about their child’s care arrangements, then the court will decide those arrangements for them at a final hearing. This may mean that neither parent gets exactly the arrangements that they have sought.

Resolution, which is a community of family justice professionals who work with families and individuals to resolve issues in a constructive way, have produced an incredibly helpful guide to help separated parents navigate the issues they face. You can access a PDF of that guide here: https://resolution.org.uk/wp-content/uploads/2021/05/Parenting-through-separation-guide.pdf   

Hannah Gumbrill-Ward is an Associate family law solicitor in our Brighton team. If you would like to discuss your individual situation with one of our specialists, please contact us for a confidential, initial conversation.