When parents separate, one of the most important questions to resolve is how their children will be cared for. This is often called Child Arrangements, a term replacing the traditional ‘child custody,’ and applies to all families, including same-sex parents.
The language shift reflects a modern, balanced approach focusing on shared responsibility rather than one parent having full control. The priority is meeting the child’s needs and keeping both parents involved. Child Arrangements cover plans, agreements, or court orders about a child’s life after separation, including where the child lives, how time is shared, and how parents remain involved in decisions.
Who makes decisions about Child Arrangements?
Those with Parental Responsibility make these decisions. This usually includes parents, but can extend to others like step-parents or grandparents if granted legal responsibility.
Parental Responsibility means the legal rights and duties to make key decisions about a child’s upbringing, such as housing, education, healthcare, and travel.
- Mothers automatically have it.
- Fathers or second female parents have it if married to or in a civil partnership with the mother at birth, or named on the birth certificate (for children born after 1 December 2003 in England and Wales).
- Others can obtain it by agreement or court order.
All those with parental responsibility must be involved in major decisions, regardless of where the child lives.
If parents can’t agree, the court can decide based on the child’s best interests.
Do all families need to go to court?
Not necessarily. Courts actively encourage families to make arrangements between themselves where possible. A Parenting Plan may assist. If arrangements cannot be agreed, an alternative to going to court is Family Mediation, which supports parents in reaching an agreement in a cooperative and flexible way. It is a process in which an independent, professionally trained mediator helps families work out arrangements for children and finances following separation. Mediation can help reduce conflict and avoid the emotional and financial stress of going to court. Although mediation itself is not compulsory, meeting with a mediator to learn about mediation is now a requirement before parents apply to court.
Before applying to court, parents are legally required to attend a Mediation Information and Assessment Meeting (MIAM), unless the case meets one or more of the MIAM exemption criteria such as domestic abuse, urgency, or geographical distance. It is important to understand that mediation itself is not compulsory – only the MIAM is.
Child arrangements vary depending on each family’s needs, but typically address:
- Where the child lives (Residence):
- Joint lives with order: The child spends time with both parents (not necessarily equally).
- Lives with order: The child lives primarily with one parent but maintains regular contact with the other, often through a Child Arrangements Time Spent with Order.
- Who makes decisions:
- Even if a child lives mainly with one parent, those with parental responsibility must consult each other on key matters. Day-to-day decisions are usually made by the parent the child is with at the time. In specific cases, the court may issue: Specific Issue Orders (to address particular matters, like schooling), or Prohibited Steps Orders (to prevent certain actions, such as relocating a child without permission).
If necessary, the court can require that a non-resident parent’s time with the child be supervised.
How do courts decide?
If parents cannot agree, the court decides based on the child’s welfare using a legal tool known as the welfare checklist, which considers:
- The child’s wishes (depending on age and maturity)
- Their physical, emotional, and educational needs
- The impact of changes in living arrangements
- Each parent’s ability to meet those needs
- The level of cooperation between parents
- Any concerns about safety, abuse, or neglect
The child’s safety, happiness, and long-term stability are always the court’s top priorities. Courts aim to ensure the child has a secure home and meaningful relationships with both parents. They encourage parents to reach agreement wherever possible.
Cafcass and Safeguarding
During court proceedings, a Family Court Advisor from Cafcass (Children and Family Court Advisory and Support Service) provides a Cafcass Safeguarding Letter to the court after conducting background checks (e.g. police and agency records). If needed, Cafcass may recommend further investigations, such as a detailed social worker report. In serious cases, the court may hold a fact-finding hearing to resolve disputed allegations.
Conclusion
Every family is different; there’s no one-size-fits-all solution. Whether parenting is shared, or one parent takes on a greater role, what matters most is that the child feels safe, has a stable home life, and a relationship with both their parents. Understanding your responsibilities and options can help you make decisions that put your child’s well-being first.
Please note that this article is provided for general information only. You must obtain professional or specialist advice before taking, or refraining from, any action on the basis of this article.
Authors: Isabella Peters and Amy Lines, Paralegals at Dawson Cornwell LLP