When a relationship ends, the most difficult issue for parents is usually the question of what new arrangements will be made for their children and how they will divide their time.
The courts encourage parents to make decisions between themselves wherever possible. If a couple is able to come up with an agreed parenting plan, then this can be sealed by the court into a binding child arrangements order.
Making arrangements for children in a separation or divorce
The courts prefer that children have a meaningful relationship with both parents. In practice, one parent will often take on a larger role, with the children living with them for most of the time. Which parent this is will depend on individual circumstances, such as which parent has taken on most of the child care up to that point and who is able to be around when needed.
Child arrangements can cover the following:
- Who the child will live with and for what proportion of time
- When a child will see their other parent
- Who else the child will see or will not see
- How the child will keep in contact with their parents while they are not together
Experienced family law solicitors will be able to guide you through a process of negotiation and advise you on what you can include in your arrangements. If you are not able to agree with your child’s other parent, then the next stage is to consider mediation.
This is generally a legal requirement, except in certain cases such as where there is domestic abuse. You will be required to attend a Mediation Information and Assessment Meeting or MIAM. A neutral mediator will work with you both to try and ascertain whether mediation will be appropriate. You do not have to agree to mediation. If mediation is not possible, the mediator will provide a certificate to the court confirming that it has been attempted.
If mediation is successful and you are able to agree on child arrangements, the court can seal these into an order.
How will the courts decide on child arrangements?
If you ask the court to make a child arrangements order, which has formerly been referred to by terms such as contact, residence, access and custody, it will make a decision based on what it believes to be in the child’s best interests.
The court will also take the following points into consideration:
- The wishes of the child in light of their age and understanding
- The child’s physical, emotional and educational needs
- The parents’ abilities to meet the child’s needs
- How any changes to the child’s routine may impact them
- Whether the child has suffered from or is at risk of neglect, harm or abuse
- Any other relevant information
Older children will have more of a say in where they live. From the age of 13, depending on their maturity, their wishes will generally be given weight by the court. From the age of 16, they will usually be allowed to specify which parent they would like to live with.
In considering a case, the court will often ask the Children and Family Court Advisory and Support Service (CaFCASS) to prepare a report on the family to aid it in making a decision.
FAQ
Who can apply for an order?
Anyone who has parental responsibility for the child in question can ask the court for a child arrangements order. This could include a step-parent as well as a birth parent. If you do not have parental responsibility, you may be able to apply to the court for this.
Some other people in the child’s life may also be able to request permission from the court to apply for a child arrangements order, including grandparents. The court will need to grant them leave to apply first before they can make an application.
What should I do to get custody of my child?
Child custody is no longer referred to in law, having been replaced by child arrangements. The courts prefer that a child has both parents in their life wherever possible. The arrangements that will be made should be in the child’s best interests, which could be that they live with you and have regular contact with their other parent.
To arrange this, you will need to try and work out a parenting plan with the other parent. An experienced family lawyer will be able to help where necessary.
Can a father lose custody?
A father could lose the right to spend time with their child where there is a danger of harm to the child because of safeguarding concerns or where their welfare is at risk.
This could be as a result of drugs, alcohol, abuse or criminal behaviour.
Can a mother lose custody?
There is no difference between a mother’s rights and a father’s rights when it comes to custody, so a mother can lose the right to see their child in the same way as a father.
What happens after the child turns 18?
Child arrangements only last until a child is 18, at which point they have the right to live where they wish.
What should I do if the child arrangements order is breached?
If a child arrangements order is breached, then the first step is to try and reach an agreement with your child’s other parent. Your solicitor will be able to negotiate on your behalf where necessary and explain to the other parent what their liabilities are. Where difficulties persist, mediation is often recommended to try and resolve matters without the need to attend court.
How do you enforce a child arrangements order?
If a child arrangements order is breached, the court can be asked to step in to enforce the order. CaFCASS may be asked to report again and the court may decide to order mediation.
It is also open to the court to make a contact enforcement order or impose a penalty such as a fine on the party who has not complied with the child arrangements order.
Contact our expert child arrangements solicitors
If you are going through a divorce or separation, we can help you put arrangements for children in place. For more information on our services and the process of obtaining an order, see Child Arrangements Orders.
If you would like to discuss your options and how to proceed with an expert child arrangements lawyer, ring us on 0300 303 2071 email us at info@witansolicitors.co.uk or fill in our contact form. We have offices in Birmingham, London and Northampton.
