Child arrangements after separation

Separation and divorce are never easy, and the emotional impact can be even more profound when children are involved. One of the biggest concerns for parents is deciding how children’s care and living arrangements will be managed after the relationship ends. Questions often arise about where the child will live, how much time they will spend with each parent, how decisions about schooling and healthcare will be made, and what happens if parents cannot reach an agreement.

This guide explains the legal framework for child arrangements in England and Wales, the alternatives to court proceedings, and what to expect if a judge must ultimately decide.

 Understanding Child Arrangements

Even though the phrase “child custody” is still often used in everyday conversation, it is not the correct legal term in family law in England and Wales. Instead, the courts focus on “child arrangements” i.e. practical decisions about who the child lives with, how much time they spend with each parent, and how ongoing parental responsibility is exercised.

Child arrangements are governed by Section 8 of the Children Act 1989, which enables the court to make different types of orders:

• Child Arrangements Orders (CAO): specify where a child lives (“lives with” order) and how they spend time with the other parent (“spend time with” order).
• Specific Issue Orders (SIO): resolve disputes about a particular aspect of a child’s upbringing, such as choice of school, medical treatment, or permission to travel abroad.
• Prohibited Steps Orders (PSO): prevent a parent from taking certain actions without the court’s consent, for example, relocating a child overseas, or to a different city in the UK.

The law does not prescribe a “standard” arrangement. Each decision is based on the child’s best interests and the unique circumstances of the family. Children may live primarily with one parent or divide their time between households.

 The Importance of the Child’s Best Interests

When parents cannot agree, the court’s paramount concern is always the welfare of the child. Judges apply what is known as the “welfare checklist”, which considers:

• The child’s wishes and feelings, depending on age and maturity
• Their physical, emotional, and educational needs
• The effect of changes in circumstances
• Each parent’s ability to meet the child’s needs
• Any history of abuse, neglect, or domestic violence
• The importance of stability and continuity in the child’s life

This principle ensures that the focus remains on what benefits the child, not on parental rights or preferences.

Family courts increasingly promote supportive measures to help parents focus on their children. For example, courts often direct that parents attend the Separated Parents Information Programme (SPIP) or a PPP (“Triple P – Positive Parenting Programme”) course, short courses encouraging parents to understand the impact of conflict on children and to develop practical co-parenting strategies. These interventions aim to reduce hostility and keep disputes out of prolonged litigation.

 Reaching Agreement Without Court

Court should be seen as a last resort. Families are encouraged to resolve disputes through negotiation or alternative dispute resolution (ADR). These methods are often quicker, less stressful, and more child-focused.

1. Private Agreements. Parents can often agree arrangements informally, without legal involvement. Provided both parents trust each other and can communicate effectively, private arrangements can be flexible and tailored to the child’s needs.
2. Mediation If discussions stall, mediation offers a structured, impartial forum. A trained mediator helps parents explore options and work towards a mutually acceptable agreement. Mediation is not counselling; its focus is on practical solutions in the child’s best interests. In some cases, “child-inclusive mediation” allows older children to express their views through the mediator. Child inclusive mediation typically involves children aged 10 and over, as they are seen as more capable of having their own views and expressing them in a mediation setting. However, younger children can sometimes be included if they are articulate or have older siblings. The final decision always rests with the parents, who must both consent, along with the child’s consent, for the mediation to proceed.
3.  Mediation Information and Assessment Meeting (MIAM) Before applying to court, parents must usually attend a MIAM. This short meeting assesses whether mediation could help. There are exceptions and in certain cases it might not be necessary to attend a MIAM, for example, where there is evidence of domestic abuse or urgent risk to the child.
4. Collaborative Law and Arbitration Other ADR methods include collaborative law (where each parent is represented by specially trained lawyers who negotiate together) and arbitration (where a qualified arbitrator makes a binding decision outside court).

When Court Intervention Becomes Necessary

If parents cannot agree, an application to the court may be required. The most common application is for a Child Arrangements Order.

 The Application Process

1. Application (Form C100): The parent applies to court, confirming attempts at mediation and setting out the issues. If allegations of harm are made, a supplementary form (C1A) must also be submitted.
2. Safeguarding Checks by Cafcass: The Children and Family Court Advisory and Support Service (Cafcass) carries out background checks, speaks with the parents, and considers the child’s welfare. Prior to the first hearing, they will usually prepare a safeguarding letter setting out their views as to what directions and interim contact is appropriate. They may prepare a Section 7 report if further investigation is needed.
3. First Hearing (FHDRA): The First Hearing and Dispute Resolution Appointment is where the court identifies the issues, considers safeguarding, and may encourage settlement. If no agreement is reached, the judge gives directions for evidence to be gathered (e.g. statements, expert reports, Cafcass involvement).
4. Second hearing (DRA) and potential further Hearings: Additional hearings may be needed to narrow disputes or test evidence.
5. Final Hearing: The judge makes a final determination, issuing binding orders in the child’s best interests.

At every stage, the court continues to encourage parents to settle. If agreement is reached, the judge can consider and approve it as a consent order, making it legally enforceable.

The Role of Cafcass

Cafcass plays a crucial role in safeguarding and advising the court. Their officers may:

• Speak with the child to understand their wishes and feelings
• Review school, medical, and social services records
• Assess each parent’s ability to meet the child’s needs
• Provide recommendations to the court in a Section 7 report

Judges take Cafcass’s independent perspective seriously, though they are not bound to follow its recommendations.

Types of Orders

Child Arrangements Orders

These are the most common orders, setting out residence and contact. Orders may include:

• Regular weekly routines
• Arrangements for holidays and birthdays
• Provisions for indirect contact (e.g., phone calls, video calls)

Specific Issue Orders

Used to resolve particular disputes, such as:

• Which school a child should attend
• Whether a child should undergo medical treatment
• Arrangements for religious upbringing

Prohibited Steps Orders

Used to prevent a parent from making unilateral decisions that could affect the child’s welfare, such as:

• Taking the child abroad without consent
• Changing their surname
• Moving them to a new school without agreement

Parental Responsibility

Parental responsibility (PR) is the bundle of rights and duties a parent has in relation to a child. Mothers automatically have PR from birth. Fathers have PR if they are married to the mother, named on the birth certificate, or acquire it through agreement or court order.

PR covers decisions about a child’s health, education, and welfare. Having PR does not automatically mean a parent has day-to-day care, but it does ensure involvement in major decisions.

International and Relocation Issues

Disputes can become more complex where international families are involved. Issues may include:

• Which country’s courts have jurisdiction
• Whether a parent can relocate with the child abroad
• Concerns about abduction or refusal to return after holidays

In relocation cases, the court balances the moving parent’s right to live where they choose with the potential impact on the child’s relationship with the other parent. The welfare of the child remains the overriding consideration.

The Role of Family Lawyers

Specialist family solicitors play a vital role in advising parents throughout this process. They can:

• Explain legal rights and responsibilities
• Represent parents in negotiations and advise in between mediation sessions
• Draft consent orders
• Prepare court applications and manage cases ahead of court hearings
• Guide parents through complex issues like relocation or allegations of harm

It is advisable to find a solicitor who can balance robust representation with sensitivity, keeping the child’s welfare at the centre of discussions.

Summary

Putting in place child arrangements in respect of the children after separation is often the most emotionally charged aspect of divorce. While many parents manage to reach amicable agreements, some disputes require professional intervention. Mediation and other dispute resolution methods can help parents reach solutions without court, but it may ultimately be necessary for families to turn to the family courts in order to resolving their disagreements.

Ultimately, every decision should be based on one principle: the welfare of the child is paramount. By keeping the child’s best interests at the heart of the process, families can work towards stable, workable arrangements that support children through the challenges of family breakdown.