Guide to Child Arrangements

The term “custody” was historically used to describe the living arrangements of children following their parents’ separation or divorce. The term was replaced by the Children Act 1989 when parental responsibility, residence and contact were introduced. These days, the Family Court no longer refers to custody, residence or contact, preferring instead to use the term “to live with” as part of a “Child Arrangements Order.”

Children will either live with their mother or father and, in some cases, split their time equally or unequally between both parents, living with the other parent at certain times of the week or month.

Where children will live is based on what is in their best interests rather than what each parent wants, and this is where arrangements for children can become difficult. Divorced or separated parents tend to have competing aims and wishes and almost always hold contrasting views on their children’s upbringing. Things can be further complicated by ongoing resentment and competing interests, which cannot easily be reconciled. It is at this stage that one parent may decide to apply to the court.

Before applying to the court, contact must be made with a mediator to arrange a Mediation Information and Assessment Meeting (MIAM). This may not need to be attended if an exemption applies: victims of domestic violence or urgent cases can avoid a MIAM taking place.

Child Custody Court Process

The application procedure can be complex and we recommend you seek specialist legal advice from a solicitor who can guide you through the process. To begin an application, you should:

• Complete the C100 form. This is available from your local family court, or you can find a copy online on the gov.uk website. Alternatively, your local family solicitor will be able to complete it on your behalf.
• If you or your child have suffered or are in danger of suffering any harm from domestic violence or abuse, child abduction or other behaviour or conduct considered harmful, form C1A should be completed.
• Pay the relevant court fee or, if you are on a low income or in receipt of certain benefits, apply for a fee exemption using form EX160.
• Individuals other than the child’s mother or father should complete form C2 to apply to the court for permission to make the application. For example, the child’s grandparent or other close relation.
• The court will issue the application and assign your case a reference number. You will also receive a date for the first hearing. The court will also send the application forms to the other party.
• The court will send the other party to the proceedings (respondent) form C7. They should complete and return it no less than 10 days before the first hearing. Form C7 gives information to the court, including whether the respondent agrees or opposes the making of any order.
• If there is an application for a child arrangements order, the Children and Family Court Advisory and Support Service (CAFCASS), will carry out background safeguarding checks before the first hearing takes place and report to the court with any safety concerns it has identified. This includes information from the local authority and police. The CAFCASS officer will also contact both parties by telephone to discuss the issues.
• The first hearing, known as a First Hearing Dispute Resolution Appointment (FHDRA) encourages parties to reach an agreement. If this happens, the court may make an order reflecting the agreement. Sometimes, if the judge believes the case is suitable for mediation or the parties need more time to reach an agreement, they may adjourn the hearing (take a break and return to court at a later date) and direct both parties to attend mediation. Alternatively, if the judge feels more information is needed before making a decision, they may list a further hearing or hearings and ask for various things to happen in the meantime. For example, the court may ask for statements to be filed or request reports or disclosure from the police or social services. The judge may also direct CAFCASS to meet with the children and report to the court about their wishes and feelings, amongst other things.
• There may be several hearings before reaching a final hearing, but if you agree with the other parent, it may not be necessary for a final hearing. If you have a final hearing, it is likely you will have filed written statements to support your case. You may have to give oral evidence during the hearing, which gives you an opportunity to tell the court your side of the story and your ex, their side. After hearing the evidence, the judge will summarise the case and decide what should happen.

Custody agreements when a parent lives abroad

If both of you can agree to arrangements for your children after separating, you might draw up a parenting plan or agreement. This can be particularly important if one of you lives abroad because it can help avoid any conflict in the future regarding how much time is spent there and who pays the travel costs, etc. A parenting agreement can set out:

• Who your children will live with
• When they will spend time with the non-resident parent and with extended family (e.g. grandparents)
• How the children will travel to the non-resident parent (e.g. using the services of a chaperone or the resident parent accompanying the children). It is also important to consider who will pay and if this cost will be shared.
• How child maintenance/financial support will be provided
• How you will deal with any child-related issues such as education, healthcare, or mental health
• How you intend to communicate and share information—for example, setting out decisions which can be made without consultation and those which need a joint decision.
• How you might introduce new partners into the children’s lives

Parenting agreements are not legally binding and should not include information about financial settlements and how you plan to divide your assets, money, and home. A parenting agreement should always be flexible. What suits your circumstances in the immediate aftermath of separation will probably not accurately reflect the situation further down the line. Parents should always try to keep at the forefront of their minds the question: what is in the best interests of the children?

Contact our Family Law Solicitors in London

Separating from a partner is never an easy time, and our team knows how difficult this can be with children involved. For a confidential chat about how we can help you contact our team today here