Following a separation or divorce, many parents seek legal advice or assistance to formalise their child's living and contact arrangements to provide certainty and stability for everyone involved.
In England and Wales, child arrangements is the terminology now generally used legally, although many parents still search for and refer to “child custody”. The child's welfare is the Court's paramount consideration and, wherever possible, parents are encouraged to agree practical arrangements for where their child will live and how much time they will spend with each parent.
There is no automatic rule that a mother should have custody, that a father is entitled to 50/50 care or that children should spend alternate weekends with one parent. The right arrangement depends on the individual child and family.
What are you trying to resolve?
Child arrangements can become an issue in many different circumstances. We commonly advise parents where:
you have recently separated and need to agree where your child will live and when they will see each parent;
the other parent is preventing or restricting contact;
one parent wants substantially more or less time with the child;
you are concerned about your child's safety or welfare while with the other parent;
your child is not being returned as agreed;
you already have a Child Arrangements Order which is not being followed;
existing arrangements no longer work as the child gets older or circumstances change;
one parent wants to relocate within the UK or overseas;
there is disagreement over an important issue such as schooling; or
you broadly agree arrangements but want greater certainty for the future.
The appropriate approach can be very different depending on the problem. Not every disagreement requires a Court application and, where possible, resolving arrangements by agreement can save considerable time, cost and conflict.
What is parental responsibility and why is it important?
Parental responsibility is defined by section 3(1) of the Children Act 1989 as the rights, duties, powers, responsibilities and authority which a parent has in relation to their child and the child's property.
A person with parental responsibility can be involved in important decisions concerning a child's upbringing, including education, healthcare and other significant welfare issues.
A mother automatically has parental responsibility from birth. Fathers may also acquire parental responsibility in a number of ways, including through marriage or civil partnership with the mother or, in many cases, by being named on the child's birth certificate.
Parental responsibility is different from deciding where a child lives or how much time they spend with each parent. A parent can continue to have parental responsibility even where a child lives primarily with the other parent.
Types of child arrangements and custody
The arrangements that work for one family may be completely unsuitable for another.
Common arrangements include:
Living primarily with one parent – the child has their main home with one parent and spends agreed periods of time with the other.
Shared care – the child spends substantial periods living with both parents. This does not necessarily mean an exact 50/50 division of time.
Direct contact – arrangements for the child to spend time with a parent, including weekends, weekdays and school holidays.
Indirect contact – telephone calls, video calls, messages or other contact where direct time together is not currently appropriate.
Supervised contact – time with a parent takes place at a contact centre or with another suitable adult present where there are welfare or safeguarding concerns.
Supervised contact is often intended as a temporary arrangement while concerns are assessed or circumstances improve, although in serious cases it can continue for longer.
What should child arrangements cover?
Good child arrangements involve more than deciding how many nights a child spends with each parent.
Depending on the family, it can be useful to agree:
the child's main home;
weekday and weekend arrangements;
school collections and handovers;
school holidays;
Christmas, birthdays and other important occasions;
travel arrangements;
telephone and video contact;
arrangements around clubs and activities; and
how parents will communicate about important decisions affecting the child.
Some families benefit from detailed arrangements which reduce opportunities for disagreement. Others are able to operate successfully with greater flexibility.
The objective should be an arrangement that works practically for the child rather than simply achieving a particular division of time between the parents.
Do child arrangements have to go through Court?
No.
If parents can agree arrangements themselves, there is usually no requirement to obtain a Court order. Arrangements can also be reached through negotiation between solicitors, mediation or another form of non-court dispute resolution.
Where relations are relatively good, keeping arrangements outside Court may allow parents to retain greater flexibility as their child's needs change.
However, legal advice can be valuable where there is significant disagreement, arrangements repeatedly break down, one parent is withholding contact, safeguarding concerns exist or one parent is proposing a major change such as relocation.
What happens if we cannot agree?
If agreement cannot be reached, an application can be made to the Family Court for a Child Arrangements Order.
Unless an exemption applies, you will normally need to consider mediation and attend a Mediation Information and Assessment Meeting (MIAM) before making the application.
Once proceedings begin, Cafcass will generally undertake safeguarding checks and the Court will consider whether agreement can be reached and what issues remain in dispute.
Depending on the case, the Court may require further evidence, reports or assessments before making a final decision.
Many cases are resolved during the process without requiring a contested final hearing. Our role is therefore not simply to represent you in Court but to identify where agreement is achievable and where a firmer approach is necessary.
How does the Court decide child custody and living arrangements?
Under the Children Act 1989, the child's welfare is the Court's paramount consideration.
There is no formula for deciding which parent a child should live with or how much time they should spend with each parent.
The Court considers the individual circumstances and, where relevant, the statutory welfare checklist, including:
the child's wishes and feelings, taking account of their age and understanding;
their physical, emotional and educational needs;
the likely effect of changes in their circumstances;
their age, background and relevant characteristics;
any harm they have suffered or are at risk of suffering;
each parent's ability to meet their needs; and
the range of options available to the Court.
The practical history of the child's care and the importance of maintaining stable relationships can also be highly relevant.
Is it still possible to get sole or full custody?
“Sole custody” and “full custody” are terms commonly used by parents but are not generally the terminology used by the Family Court in England and Wales.
A Child Arrangements Order can provide that a child lives with one parent and determine whether, when and how they spend time with the other.
A Court may restrict a parent's time with their child where this is necessary to protect the child's welfare. Relevant concerns can include:
domestic abuse;
physical, emotional or psychological harm;
neglect;
alcohol or substance misuse;
risk of abduction;
serious or sustained conflict affecting the child; or
an inability to meet the child's needs safely.
A child living exclusively or primarily with one parent does not automatically remove the other parent's parental responsibility.
Where one parent seeks a significant restriction on the other's relationship with the child, good evidence and careful presentation of the welfare issues can be particularly important.
What if I am worried about my child's safety?
Safeguarding concerns can fundamentally change the way a child arrangements case should be approached.
If there are allegations of domestic abuse, neglect, substance misuse, violence, risk of abduction or other serious harm, it may not be appropriate simply to negotiate ordinary contact arrangements.
Depending on the circumstances, the Court can consider measures including supervised or supported contact, restrictions on particular activities and, in serious cases, suspension of direct contact.
Where important allegations are disputed, the Court may need to determine what happened before deciding what future arrangements are safe and appropriate.
Urgent legal advice may be required where you believe there is an immediate risk to your child.
Can I stop the other parent seeing our child?
You should be cautious about unilaterally stopping contact, particularly where a Court order is already in place.
However, there can be circumstances where immediate action is justified because of a genuine safeguarding concern.
The appropriate response depends heavily on the seriousness and immediacy of the risk. Legal advice can help you decide whether to seek an urgent Court order, propose supervised arrangements or take another protective step.
Simply stopping contact because relations between the parents are difficult is very different from acting because a child is genuinely at risk.
Changing child custody or child arrangements
Child arrangements are not necessarily permanent. Children's needs change and parents' circumstances change with them.
Common reasons for reviewing arrangements include:
one parent planning to relocate;
changes in work patterns;
a child's wishes or needs changing as they get older;
health issues;
new schools;
new relationships or family circumstances; or
an existing arrangement simply becoming impractical.
If both parents agree, arrangements can often be changed without returning to Court, although you should consider whether an existing Court order also needs to be varied.
If one parent does not agree, an application can be made to vary the existing Child Arrangements Order.
The Court will again focus on the child's welfare. Where established arrangements have been working well, the Court will consider carefully whether changing them would genuinely benefit the child.
What if one parent wants to move away?
Relocation can have a major effect on existing child arrangements.
A move to another part of England or Wales can affect schooling, travelling time, weekday contact and the child's relationship with the other parent. Moving permanently overseas can raise still more significant legal issues.
If the proposed move is disputed, early advice is important. Depending on the circumstances, one parent may seek permission for a proposed move while the other may seek an order preventing it.
The Court will consider the proposals from the perspective of the child's welfare rather than simply deciding which parent's preference should prevail.
What happens if one parent does not comply with a Child Arrangements Order?
Non-compliance can range from occasional practical difficulties to a parent repeatedly refusing contact or failing to return a child.
If an order is persistently breached, it may be possible to apply to the Court for enforcement.
The Court will consider why the breach occurred as well as its effect on the child. Available responses can include enforcement measures and, in serious or persistent cases, reconsideration of the underlying child arrangements.
Not every missed contact session justifies immediate Court proceedings. Where problems are becoming a pattern, however, taking advice early can help prevent the position deteriorating further.
My ex is stopping me seeing my child – what can I do?
Unless there is a genuine welfare reason for doing so, one parent should not generally use a child as a means of controlling or punishing the other following separation.
If contact is being withheld, the first step will often be to establish why and whether arrangements can be restored through communication, negotiation or mediation.
Where this does not work, or contact has been stopped altogether, a Child Arrangements Order may be necessary.
If there is already an order which is being ignored, the appropriate step may instead be enforcement or an application to vary the existing arrangements.
Do I need a solicitor for a child custody dispute?
Not necessarily.
Where parents communicate well and can agree sensible arrangements, instructing solicitors or starting Court proceedings may be unnecessary.
Legal advice becomes more valuable where:
contact is being prevented;
negotiations have repeatedly failed;
there are safeguarding allegations;
one parent wants sole or substantially greater care;
relocation is proposed;
an existing order is being breached;
there are allegations of parental alienation or manipulation;
the case involves complex evidence; or
Court proceedings have already started.
Taking legal advice does not mean you have committed yourself to litigation. Often the most useful initial advice is about how to avoid Court while still protecting your position and your child's interests.
How our child arrangements solicitors can help
Our experienced family law solicitors advise both mothers and fathers on straightforward arrangements following separation and more complex or highly contested disputes.
We can help you:
understand your parental responsibility, rights and options;
negotiate practical arrangements with the other parent;
use mediation or other non-court approaches where appropriate;
apply for a Child Arrangements Order;
respond to an application made by the other parent;
vary or enforce an existing order;
deal with supervised or restricted contact;
respond to safeguarding allegations;
deal with parental alienation allegations;
advise on relocation within the UK or overseas;
apply for Specific Issue or Prohibited Steps Orders; and
prepare evidence and represent you throughout Court proceedings.
Our recent work includes cases involving disputed relocation, supervised contact, safeguarding allegations and restoring contact where a parent had previously been prevented from seeing their child.
Our approach is proportionate. Where arrangements can realistically be resolved without Court proceedings, we will help you work towards that outcome. Where Court intervention is necessary to protect your child or secure workable arrangements, we can guide you through the process and represent your interests.
Speak to us
If you are separating, having difficulty agreeing arrangements or are concerned about an existing arrangement, early advice can help you understand your options before the dispute becomes more entrenched.
Our family law solicitors can advise on the practical and legal options and help you decide the most appropriate next step.
