Fact or fiction

In our experience, it is often the arrangements for the children of the family upon separation which can cause the most distress and worry. We find that often, parents can approach the division of the matrimonial finances upon divorce (or address property ownership, following the end of a cohabiting relationship) with a more commercial and dispassionate eye. However, quite naturally, it is resolving the future arrangements for the children – with whom they will live and spend time with – that can be a worrying and stressful process.

Here are some of our top FAQs, which may assist in providing some reassurance and guidance.

Who will “get custody of the children”?

The law, and the courts, no longer talk in such terms. Custody had associations with ownership of the child, power and control. This was not in keeping with the approach of the court and the evolution of the law. Whilst principles of child custody therefore persist in the States for example, the UK law provides for a programme of “Child Arrangements”. Any order made will provide for the child to live with one (or both) parent(s), and potentially to spend time with the other. This language reflects the child’s welfare rather than parental rights.

Does shared custody still exist?

As above, the law no longer refers to “shared custody” or even “shared residence”, however the principle of shared care is very much alive and well. In many cases, the court will deem it to be in the child’s best interests to spend time with both parents and will award a joint “lives with” order. This does not necessarily mean that the child’s time will be shared exactly equally between the parents. Whilst that is possible and appropriate in some cases, a joint “lives with” order may be made simply to reflect the equal importance of both parents in the child’s life.

What works for one family may not work for another, therefore there are naturally multiple different approaches to how the child’s time should be shared between two homes. We can discuss this with you and advise of potential options for you to consider. Of course, account needs to be taken of any regular commitments the child has, the parents’ working arrangements and flexibility (or otherwise), and distance between the parents’ homes and the child’s school, amongst other practical factors.

Should the school holidays be shared equally?

Again, different parents will address this differently subject to their own working arrangements, other commitments and childcare requirements. However, we have found that where a parent is ready, willing and able to assume shared care in the holidays, the court will often sanction the same.

Will a parent always be successful in securing contact, or arrangements to “spend time” with the child?

In short – no. Every case is different and will turn on its facts. There has been for some years a presumption of parental involvement, however the Government has made plans to repeal this. With or without this presumption, the court is obligated to place the welfare of the child at the centre of any decisions, so contact with the child which exposes that child to an unmanageable risk of harm would not be ordered. The court will assess any such application in accordance with the paramount principle, being the child’s welfare needs. That is considered in light of the welfare checklist found in the Children Act. The welfare checklist covers the following:

1. the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);

2. his physical, emotional and educational needs;

3. the likely effect on him of any change in his circumstances;

4. his age, sex, background and any characteristics of his which the court considers relevant;

5. any harm which he has suffered or is at risk of suffering;

6. how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;

7. the range of powers available to the court under this Act in the proceedings in question.

There is therefore no one size fits all approach.

In some cases, for example where there has been serious domestic violence, or a complete breakdown of the relationship between parent and child, it may be that the parent is awarded indirect contact only. This might be through provision to send letters to the child at regular points throughout the year.

What if there has been domestic violence or abuse? Will the court take that into account?

The court has become increasingly alive to the impact of domestic abuse on children. Even where they have not directly suffered from the abuse, and even where such abuse is not physical, it is well recognised that simply being in an environment in which abuse is prevalent has a potentially lifelong, adverse effect on the child’s wellbeing.

Whether you are the applicant or respondent in any proceedings concerning arrangements for the children, it is important that you raise your concerns about such abuse, and the impact on the children, at the earliest possible stage. The court must consider the impact of any such allegations on the likely outcome of the proceedings, and in some cases, it may be that a separate fact finding hearing is necessary to establish whether those allegations are proven.

In addition, where there are concerns about drug or alcohol abuse, those should also be raised at the outset of proceedings, as testing may be required, and the court may consider in some circumstances that direct contact between the relevant child and parent is not safe or appropriate.

Courts also now follow Cafcass’ updated Domestic Abuse Policy (2024), which recognises coercive control and emotional abuse as serious risks. Allegations must be raised early, and fact-finding hearings are ordered only if necessary for welfare decisions.

When is supervised contact appropriate?

Where there are concerns about a child’s welfare due to domestic abuse, or the risk of abduction for example, the court may consider it appropriate for any time the parent spends with the child to be supervised. This can be supervised formally, through the use of a contact centre, or informally, for example by the assistance of a family member or family friend who is willing to assist.

Supervised contact should now take place in accredited contact centres under the National Association of Child Contact Centre standards, or via approved virtual arrangements. Courts expect supervision to be short-term and risk-based, with clear safeguarding measures, however, there will obviously be cases where unsupervised contact will never be a safe option.

My child does not want to spend time with the other parent, what do I do?

It is important to consider whether the child is perhaps being influenced, even if unintentionally, by your own reticence. It is important for both parents to lead the way and try to model healthy relationships with each other. The child will often need emotional permission from the parent with majority care, alongside practical arrangements, to enjoy and maintain/develop a loving relationship with the other parent.

That said, there will of course be cases where the child’s reticence has come from their lived experiences with that parent, perhaps they have seen or witness domestic abuse of some sort. Subject to the age of the child, Cafcass will normally be instructed to prepare a report making recommendations to the court, and as part of this process the Cafcass officer will usually speak to the child. In this way, a neutral party can feedback to the court the child’s concerns, the reasons for those concerns, and the best way of ensuring their needs are met going forward in light of those concerns.

Do we need to go to court to resolve the arrangements for the child?

Absolutely not. Many parents are able to agree arrangements between them without any outside assistance. That agreement would not have the weight or enforceability of a court order, however it would of course be considered as a relevant factor in any subsequent proceedings

Otherwise, it may be that the assistance of a mediator can resolve matters (for which funding may be available in some circumstances), or correspondence through solicitors. Court should effectively be seen as a last resort – in many cases, it is overwhelmingly more positive for the child where the parents can discuss and reach agreement, as opposed to being subject to arrangements imposed by a judge who simply does not know them. Since 2024 there has been a stronger obligation to attempt Non-Court Dispute Resolution (NCDR) such as mediation before applying to court, and failure to do so may result in cost penalties.