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Child custody arrangements, legally known as "child arrangements" in the UK since 2014, determine where a child lives, how their time is spent, and how they maintain relationships with both parents after separation or divorce. The old terms 'custody' and 'access' are no longer used officially, though many people still use them. Instead, arrangements focus on where children will 'live' and 'spend time with' each parent.
The starting point is whether both parents have parental responsibility. Under English law, parental responsibility means the legal rights, duties, powers, and authority a parent has for a child and the child’s property.
The mother automatically has parental responsibility from birth.
The father has it if:
He was married to the mother at the time of birth, or
He’s named on the birth certificate (if the child was born after 1 December 2003 in England and Wales).
Unmarried fathers can get it by:
Re-registering the birth with the mother,
Signing a Parental Responsibility Agreement, or
Applying to court for a Parental Responsibility Order.
Where both parents have parental responsibility, the starting point for custody is that the courts no longer favour giving one parent sole custody and so would need compelling reasons to grant sole custody. Modern family law focuses on ensuring children maintain meaningful relationships with both parents unless there are specific welfare concerns. The assumption is that children benefit from having both parents actively involved in their lives, even if they primarily live with one parent.
Legal Custody - relates to "parental responsibility" in English law - the legal rights and responsibilities for making important decisions about a child's upbringing, including education, medical treatment, and religious upbringing. Both biological mothers and married fathers automatically have parental responsibility, while unmarried fathers can acquire it through various legal mechanisms.
Full Custody - while "full custody" isn't a legal term in England, it represents a situation where one parent has both a "live with" order and makes most major decisions for the child. However, English courts strongly prefer both parents to remain involved in a child's life where appropriate, and even when children primarily live with one parent, the other parent typically retains parental responsibility and involvement.
Joint Custody - what English courts now call "shared care arrangements," where a child spends substantial time living with both parents. This might involve alternating weeks, splitting weekdays and weekends, or other arrangements. Both parents fully exercise parental responsibility, making decisions jointly about important matters in the child's life.
Before pursuing sole custody, applicants should carefully consider both the legal hurdles and potential impacts on all parties involved, including :-
Harm to your case
Increased conflict and legal costs
Negative impact on your child
Damage co-parenting relationships
Aside from the factors described above, such as parents living far apart, the typical reason for considering applying for sole custody is behaviour concerns. Valid reasons to seek full custody under UK law include documented history of abuse or neglect, serious substance misuse issues affecting parenting capacity, and genuine risk of child abduction or harm. Courts require substantial evidence.
Child arrangements aren't permanently fixed. You have the right to ask the court to review and change arrangements if circumstances change. This is known as 'liberty to apply'. Common reasons include:
One parent planning to relocate
Changes in work patterns affecting care arrangements
Child's needs or wishes changing as they get older
Health issues affecting current arrangements
New relationships affecting living situations
The court will only make changes if they're in the child's best interests. You should try to agree changes with the other parent first, as courts prefer parents to reach agreements without their intervention.
In UK family law, supervised contact arrangements are ordered only when significant concerns exist about a parent's ability to safely interact with their child without oversight.
Courts generally view supervised contact as a temporary intervention, with the aim of moving toward less restrictive arrangements when safe to do so. However, in cases of ongoing serious risk, these orders can remain in place long-term or even indefinitely to protect the child's welfare.
Step 1 : Mediation Information and Assessment Meeting (MIAM) - mandatory first step unless exemptions apply. Explores whether mediation could help resolve disputes and suitability for mediation
Step 2: Attempt to reach an Agreement - focus is on finding arrangements that allow both parents to play an active role in their child's life and can take the form of 1 or a combination of informal agreement, formal mediation or solicitor negotiation.
Step 3: Court Proceedings (if necessary) - file C100 application form which is the initial court application, followed by a first hearing where the Court assesses the case and explores settlement, CAFCASS independent assessment of child's needs, further hearings and a final hearing if agreement still not reached.
The child's welfare is paramount. Courts start with the presumption that a child benefits from having both parents involved in their life, unless there are welfare concerns.
The welfare checklist from the Children Act 1989 is a fundamental tool used by courts when considering sole custody (child arrangements) applications. Here's a more detailed breakdown of each element:
1. The wishes and feelings of the child
Age-appropriate consideration - More weight given to older children's views
Consistency of expressed wishes over time and in different settings
Factors influencing the child's views - potential coaching, manipulation, or fear
Methods of assessment - direct interviews, observation by CAFCASS officers, letters to judge
Maturity assessment - child's understanding of the implications of their preferences
Sibling relationships - whether siblings express similar or differing views
School/healthcare professional input on child's expressed feelings
2. The child's physical, emotional, and educational needs
Attachment security - quality of existing bonds with each parent
Stability and routine - which parent can provide consistency in daily life
Special educational requirements - proximity to schools, ability to support learning needs
Cultural and religious needs - which parent supports the child's cultural identity
Healthcare requirements - ability to manage medical conditions or disabilities
Social development - access to friends, activities, and community
Psychological wellbeing - emotional security and therapeutic needs
Sibling bonds - maintaining relationships with brothers and sisters
3. The likely effect of any change in circumstances
Disruption to schooling - potential changes of school or travel arrangements
Housing stability - security of each parent's accommodation
Impact on extended family relationships - grandparents, cousins, etc.
Psychological impact of transition - child's resilience and coping mechanisms
Previous responses to changes - how the child has handled past transitions
Long-term vs. short-term effects - immediate disruption versus lasting stability
Support networks available during transition periods
Financial implications affecting quality of life
4. The child's age, sex, background, and relevant characteristics
Developmental stage and corresponding needs
Special needs or disabilities requiring specific care approaches
Cultural, linguistic, and religious factors relevant to upbringing
Gender-specific considerations where legitimately relevant
Ethnicity and cultural identity - which parent best supports this aspect
Educational history and achievements - academic progress considerations
Personal temperament - child's adaptability and individual personality
Talents and interests that should be nurtured
5. Any harm suffered or risk of harm
Historical incidents - documented examples of past harm
Professional risk assessments from social services, psychologists, etc.
Pattern recognition - escalation or de-escalation of concerning behaviors
Psychological harm - including emotional abuse and coercive control
Protective factors present in each household
Parental insight into harmful behaviors and willingness to change
External verification - police reports, medical records, school observations
Harm from parental conflict - exposure to ongoing hostility between parents
6. The capability of parents to meet the child's needs
Parenting capacity assessments by qualified professionals
Physical and mental health of each parent
Employment stability and working patterns affecting availability
Support networks available to each parent
Co-parenting abilities - willingness to facilitate relationship with the other parent
Insight into child's needs and responsiveness to those needs
Practical skills - ability to provide routine care, nutrition, boundaries
Financial capacity to provide adequately for the child
7. The range of powers available to the court
Graduated approach - from shared care to supervised contact
Prohibited steps orders to prevent specific actions
Specific issue orders addressing particular disputes
Family assistance orders for professional support
Undertakings and conditions attached to child arrangements orders
Review mechanisms - built-in reassessment periods
Step-up/step-down contact - progressive approaches to contact
Referrals to support services - parenting classes, therapy, substance abuse programs
When one parent consistently fails to comply with court-ordered child arrangements, this creates significant difficulties for both the child and the compliant parent. Non-compliance can range from repeatedly missing contact sessions to refusing to return the child at agreed times, which may constitute a breach of a Child Arrangements Order requiring further legal intervention, which may result in :
Court can impose enforcement orders for breaches
Parents may be required to attend parenting programmes
Financial penalties possible for non-compliance
Serious breaches may result in change of arrangements
Our experienced family law solicitors can:
Guide you through the process
Represent you in negotiations or court
Help draft and review agreements
Advise on complex cases
Get in touch
If you would like to speak with a member of the team you can contact us on:
Lead Partner - Family law
Amarjit is Lead Partner for the Family Team. Amarjit advises on all aspects of family law, including divorce, financial matters, nuptial agreements, cohabitation and separation agreements, as well as resolving issues concerning children. The aim is to...
