Making Arrangements for Children

Agree arrangements if you can

This is SO important!  A fight in court relating to arrangements for children is the most stressful thing that can happen in a separation.  It is awful for everyone, including the children.  Unless one of you makes an application, the court won’t get involved and leaves the arrangements to the parents to sort out.  And since you know your children better than anybody else, including the judge, you are the best people to decide what the arrangements should be. 

Support is available from various organisations for parents who have separated and want to resolve difficulties in agreeing child care arrangements.  Resolution offer Parenting After Parting workshops which aim to help parents manage the impact of their divorce or separation for their children.  You may wish to consider getting support from other organisations who provide information and guidance for parents in your situation. 

"What if we can't agree?" 

Making arrangements for your children can be very emotional which makes it difficult to agree.  Sometimes, simply a bit of time is needed to establish a civil working relationship in which the practicalities of child care can easily be discussed and agreed.

However, some couples find it difficult to agree even after a long while.  If you still cannot come to an agreement, then mediation may help.  This process lets you and your former partner talk through your problems together and work out solutions which are right for you and your family, with professional support. 

Although there will be some families that need court assistance, issuing court proceedings should be a last resort.

“What factors will the Court consider?” 

The law sets out a checklist of factors that must be considered during proceedings.  This list is referred to as the “welfare checklist” and means that the court must pay particular attention to:

• the ascertainable wishes and feelings of the child concerned (considered in the light of his or her age and understanding)

• the child's physical, emotional and educational needs

• the likely effect on the child of any change in circumstances

• the child's age, sex, background and any characteristics that the court considers relevant

• any harm which the child has suffered or is at risk of suffering

• how capable each of the child's parents is of meeting the child's needs

• the range of powers available to the court under the Children Act 1989 in the proceedings

The Children Act 1989 states that the child’s welfare must be the court’s paramount consideration. This means that nothing else is as important - not even a parent’s feelings or interests.

"What is the usual structure for child arrangements?" 

There are no rules to state how often a child should see their parent. Each family is different and so the arrangements will always be different, even if just in a small way.

Quite often a parent will see children on alternate weekends, so both parents enjoy leisure time with their children.  However, this will not work for all families.  Perhaps two weeks is too long for young children to wait before seeing that parent again.  More frequent visits may be more appropriate, even if it is just for a couple of hours at a time.  If you live far away from the other parent, midweek visits after school may not be practical.  Sometimes a weekend staying with one parent is too long for a very young child or baby to be away from their primary carer, so the duration of each visit could be built up gradually.

Arrangements for the Children

There are often problems maintaining a child's relationship with both parents during and after family breakdown.  This can be due to emotional upset or simple practicalities.  

There is no need for a court order when parents can agree what contact their child should with the parent that doesn't live with them. Often the parents can make the arrangements between themselves.  Sometimes, mediation or collaborative practice can provide help.  Since the parents are in the best position to know what arrangements are best for their children, the arrangements are often more successful than those imposed by any judge in court proceedings.  It can be very difficult to build flexibility into a contact order - another reason why you should agree arrangements if possible.

However, some parents are simply not able to agree what the arrangements for the children should be.  They may need to apply to the Court for help sorting things out and perhaps make a decision for the parents.

By providing an order, the Court requires the parent living with a child to allow another person to have the child visit or stay with them.  The other person is usually the child's other parent but could be a grandparent, step parent or other family member who has been significant in the child's life. 

If you are a parent but don't live with your child, you can apply for a child arrangements order that provides for your child to visit or stay with you on a regular basis.  A child arrangements order can go into quite a lot of detail if necessary, covering the days and times that the child is picked up, where handover will take place and perhaps any restrictions on the contact.  Court orders can also instruct that communication between a parent and child is made indirectly, such as by telephone, webcam or email.  If necessary, the Order can cover almost any issue that has been raised to the Court's attention.

Separated Parenting Information Programme 

If court proceedings are issued, parents may be asked to attend a Separated Parenting Information Programme (SPIP).  This is not a course about 'how to be a parent’.  It is about helping parents recognise the distress they may be causing their children without realising it.  The aim is to support parents in finding ways of communicating without conflict and supporting their children who are suffering as a result of parental separation.  This helps parents as individuals who are co-parenting their children to take responsibility for their own actions and words.  It can support you in coming to your own agreements outside the court system. 

Parents attend the course separately enabling them to speak freely about their situation.  The discussion that takes place during the course remains confidential and is not reported to the court or the other parent.

Orders stating where a child lives 

Deciding where your children should live following your separation from their other parent can be hugely distressing for all concerned The court can make a child arrangements order which states where a child lives.  This is the same as 'custody' and 'residence', which are old legal terms that no longer exist but are still in common usage.

Do children always live with their mother? 

Not always.  There is no legal bias in favour of the mother or the father.  If a court has made an order determining that the child will live with the mother, it is usually because the mother has been the main carer for the children during the relationship.  It may be that the children are currently be living with their mother, in which case, if the situation is working for the children, the Court will be reluctant to change it.  However, before a decision is made, the court considers the welfare checklist and the child’s welfare will always be the court’s paramount consideration.

Sometimes the decision is simply a matter of practicalities.  Both parents may be equally able to parent their child but the work commitments of one parent may make it more practical for the other parent to be the primary carer.  

Even where one parent does have an order for the child to live with them, the other parent still has parental responsibility. The order does not give one parent greater rights over the child than the other parent.  

At what age can my child decide where to live 

One of the first factors considered by the Court when making a decision is the ascertainable wishes and feelings of the child concerned, considered in the light of their age and understanding. 

There is no particular age at which a child is able to choose where to live. Their views will become more persuasive as the child becomes older and more mature. However, unlikely to be appropriate for a child to tell parents or the judge what should happen.  It’s probably reasonable to expect that the court would listen to the wishes of a child under 10, would pay a lot of attention to the wishes of a child between 10 and 14, and would be likely to implement the wishes of a child over 14, unless they were clearly unreasonable.  The court will be aware of the possibility of one parent trying to turn the child against the other but this can still cause great problems, especially with older children where it may be impossible to force them to do something against their wishes.