Children in Divorce & Child Custody Advice

Following a separation or divorce one of the most emotive issues for parents is often the arrangements for their children.

Can you reach an agreement?

  • Where possible, parties are encouraged to reach an agreement over the arrangements.
  • In relation to children, the Court has a ‘no order’ principle, as it is believed that an agreement reached by the parties is more likely to be successful.

What if you cannot reach an agreement?

If an agreement cannot be reached over any issues relating to the care or welfare of a child, a Court application can be made under the jurisdiction provided by Section 8 of the Children Act 1989. That said, parties must first attend Mediation, save in certain circumstances.

In divorce or separation, agreement will need to be reached on how much time the children spend with each parent. If the parents cannot agree, the Court can be invited to make a Child Arrangements Order setting out the extent to which each parent will be responsible for that child.

Where issues arise over schooling, moving houses and/or areas, medication, holidays or otherwise, a Court application can be made to address specific issues.


An alternative to asking the Courts to deal with the matter is to agree to an arbitrator to make a decision for you. The advantage is that the process can be quicker and achive a more speedy outcome. It can only be done if both parents agree.

What is parental responsibility and do you have it?

You will require parental responsibility, or permission from the Court, to make an application under Section 8 of the Children Act 1989.

Parental responsibility was created to shift away from the notion of parents having rights over their children. It is defined as “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property” and it gives the parent responsibility for making decisions for and in relation to the child.

Mothers have parental responsibility. Fathers will have parental responsibility if they were married to the mother at the time of the child’s birth, or the parties married following the birth. They can also obtain parental responsibility by:

  1. being registered on the child’s birth certificate;
  2. entering into a parental responsibility agreement;
  3. apply to the Court for a parental responsibility order;
  4. being appointed as a guardian to the child; and/or
  5. obtaining a residence order from the Court.

How will the Court deal with an application?

Following the making of a Children Act application, the Court will list a First Hearing Dispute Resolution Appointment. At this hearing the Court will encourage the parties to discuss their differences and try to reach an agreement. Where this is not possible, the Court will provide directions to a further hearing. Sometimes there will be mediators at Court to assist.

The number of hearings required will vary in each individual case and, sadly, hotly disputed cases often return to Court on a regular basis throughout the child’s infancy.

CAFCASS (the Children and Family Court Advisory and Support Service) will carry out their safety checks in advance of the first hearing and, if necessary, the Court can order further reports on the child’s welfare and best interests to be prepared. Parents may also wish to consider obtaining independent evidence where appropriate.

In considering any application before it, the Court’s paramount consideration will be the child’s welfare and the legislation directs the Court to considering the following:

  • the ascertainable wishes and feelings of the child concerned (considered in light of the child’s 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 of the child which the Court considers relevant;
  • any harm that the child has suffered or is at risk of suffering;
  • how capable each of the child’s parents and any other person in relation to whom the Court considers the question relevant is of meeting the child’s needs; and

(vii) the range of powers available to the Court (encouraging the Court to consider all of the options, including the making of no order).

If you would like to discuss any aspect of family law, are considering divorce proceedings or a trial separation, or want to draw up a pre or post-nuptial agreement, call us in absolute confidence on 03456 381381. Alternatively, email us at


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