When child custody matters come before the court, they are dealt with by way of a child arrangements order. This is a legally binding order setting out how the child’s upbringing will be handled, including issues such as which parent the child will live with, how often they will see their other parent and which other individuals they will see.
Custody disputes are difficult for all families, and clear guidance is important in providing certainty. In this article, we look at how family courts consider children's living arrangements, and some of the common challenges you may face.
“Full custody” is not, strictly speaking, the current legal term used by the family courts in England and Wales. Since the Children and Families Act 2014 amended the Children Act 1989, the courts make a child arrangements order, which sets out who a child lives with and who they spend time with, rather than granting “custody” or a “residence order” (the older, pre-2014 term).
“Full custody” is used in this article because it is the phrase people commonly search for, but where a parent has full custody in the everyday sense, the correct legal outcome is a child arrangements order confirming the child lives with them, generally with limited or supervised time with the other parent. This is different from shared custody, where a child arrangements order provides for the child to live with, or spend substantial time with, both parents. Child arrangement orders are also different from special guardianship orders.
In deciding whether to grant full custody to one parent, the court will look at a range of matters, including whether a child is at risk of harm, the ability of each parent to meet the child’s needs and the child’s wishes, in light of their age and understanding.
We look at the grounds for full custody of a child in the UK and how to make a custody application to the courts.
Summary
- Legal grounds for full custody of a child in the UK
- How to apply for full custody
- Common challenges in full custody cases
Legal Grounds for Full Custody of a Child in the UK
The courts refer to custody as child arrangements, and usually make an order that means a child will spend time with both parents. If there are concerns about one parent’s abilities to care for a child or that a child may be at risk of harm, then the court can decide that the child will live exclusively with one parent and not have contact with the other.
Other options are open to the court, for example, supervised contact, where a third party will always be present with the child when they see the parent with whom they do not live. This could be a family member or a trained professional. The supervised contact could take place in public or at an accredited contact centre.
Full custody, or exclusive contact, is usually only granted where there is evidence of a risk of harm to the child. This could be because of domestic abuse, including domestic abuse towards the child’s other parent, neglect, substance abuse, mental health issues that affect a parent’s ability to care for a child or compromise the child’s safety, serious criminal convictions or lack of involvement in a child’s life.
The court will also look at a child’s own wishes, if they are old enough to express these and understand the situation. However, a child will not be able to tell the court which parent they will live with, and it will be made clear that the final decision rests with the judge.
Child’s Welfare as the Primary Consideration
In reaching its decision, the court will always prioritise a child’s wellbeing.
An order will only be made where the court believes that this is better for the child than making no order.
It is currently the case that the court presumes that it is better for a child to have contact with both parents, unless it is established otherwise. However, this law is due to be changed to restrict contact with abusive parents.
In deciding what order to make, the courts will use the welfare checklist, as set out in Section 1 of the Children Act 1989:
- The wishes and feelings of the child, taking into account their age and level of understanding
- The child’s physical, emotional and educational needs
- The likely effect on the child of any change in their circumstances
- The child’s age, sex, background and any other characteristics which the court considers to be relevant
- Any harm the child has suffered or is at risk of suffering
- How capable each parent and any other relevant individual is of meeting the child’s needs
- The powers available to the court
Parental Fitness and Capability
The court will look at a parent’s physical, emotional and psychological capability to provide a safe and secure home for the child. This includes assessing the emotional support that will be available for the child and a parent’s ability to protect a child’s mental welfare. The relationship between parents will be examined, including whether they are willing to work together for the child.
Issues such as neglect, abuse or incapacity could mean that the court will decide that a parent should not have contact with a child and that their other parent should have sole custody.
Stability and Continuity for the Child
When deciding what child arrangements order to make, the court will also look for a parent’s ability to provide a stable home. It is considered beneficial for a child to have a regular schedule, with regular school attendance, healthy meals and regular bedtimes. A disruptive home life may mean that the court will decide to order that a child live with their other parent.
Risk of Harm or Domestic Abuse
Where there is a risk of harm or domestic abuse, the court will take decisive steps to protect a child. The local authority or police may be involved, and in some cases, they may seek an emergency protection order or police protection order.
If one parent is not considered to be a risk, then the court will generally order that the child live with them.
Parental Alienation or Lack of Involvement
If one parent is alienating their child from the other parent, the court will take this seriously. Our guide to parental alienation explains how the court deals with allegations in more detail. However, it is necessary to have evidence of this. It may be difficult to establish, as a child is likely to be genuinely fearful of an abusive parent.
The court will also look at any lack of involvement in a child’s life when deciding what order to make. Where a parent has failed to engage with a child, it may decide that it is not in the child’s interests to spend time with this parent.
How to Apply for Full Custody
When asking the court for a child arrangements order specifying that your child live only with you, you will need to provide evidence that supports your request. Our Children Act proceedings guide sets out the wider court process step by step.
Mediation and Court Proceedings
Unless there is domestic abuse, you will be required to at least consider mediation before applying to the court. This is done by attending a Mediation Information and Assessment Meeting, or MIAM. A mediator will explain to you and your child’s other parent how mediation works and the potential benefits.
A mediator is not able to impose a decision on you, but can help you and your child’s other parent understand the options available to you.
You can either decide to try mediation, or the mediator will provide you with a certificate confirming you have considered the option and you can then apply to the court for a child arrangements order. Around 10% of separated families arrive at a final decision through the courts, according to ONS data and other national surveys.
The Role of Cafcass and Social Services
If your case goes to court, the court will generally ask the Children and Family Court Advisory and Support Service (Cafcass) to prepare reports to aid it in making its decision. A Family Court Advisor (FCA) will visit your family, spending time with you, your child and your child’s other parent, before preparing a report for the court.
They can also speak to third parties, including teachers, doctors and a child’s other relatives.
FCAs are qualified social workers whose job it is to represent children’s best interests. See our guide to what Cafcass does for more on how this process works.
Factors Judges Consider in Custody Cases
Judges will take all relevant factors into account, including:
- The Section 1 Children Act 1989 welfare checklist (see Legal Grounds for Full Custody, above)
- Cafcass reports
- Statements from the child’s parents
- Statements from other individuals in the child’s life
- Evidence from social workers
- Evidence from the police
In making a child arrangements order, the court always has a duty to put the child’s welfare before everything else. You can start by making sure you are a positive influence in the child’s life before an arrangement order is made.
Common Challenges in Full Custody Cases
It can be challenging to persuade the court that it is in a child’s best interests for the child to have contact with only one parent. It is necessary to show that there is a risk to the child in allowing the other parent to spend time with them.
This could be because of abuse, neglect, the parent is mentally unfit or has a substance abuse problem, or they have serious criminal convictions.
A clear case is needed for the court, with strong evidence. This could be from witness statements, police evidence, text messages, emails, medical reports or photographs.
Because of the complexity of preparing this type of case, it is recommended that an experienced family law solicitor is used.
Conclusion
Full custody of a child in the UK is possible where there are severe deficiencies in the parenting provided by one parent and the child is at risk or could be at risk of harm as a result.
A comprehensive case needs to be put before the court, showing evidence of issues such as abuse, neglect or inability to meet the child’s needs. Taking early legal advice and planning your approach before starting proceedings can make a significant difference to how a case progresses and to the evidence available to the court.
Contact Our Child Custody Solicitors
If you have questions about obtaining full custody of a child, our family law solicitors will be able to advise you. You can ring us on 0300 303 2071, email us at info@witansolicitors.co.ukor fill in our online enquiry form, and we will talk through your situation with you and discuss how we can assist.
