When a couple separates or decides to divorce, decisions about the future care of children are often the most difficult to make. In most cases the courts don’t actually get involved. Instead, family court judges prefer to play a role only when it’s clear that the child will benefit from a court order. There’s a clear preference for parents to sort out any areas of dispute about children themselves. At Brookman we work with clients to help them reach comprehensive agreements about child arrangements.

While court orders aren’t the norm, you might still need to ask the court to intervene if the circumstances of your case demand it. So it’s important to understand the factors courts takes into account when deciding where a child will live and other issues affecting their education and upbringing. An understanding of these considerations is also crucial because they play a big part in any discussions you may have. ,They’ll also shape any agreement you might reach with your ex-spouse or partner.

We look at these factors below.

What’s In The Child’s Best Interest? The Children Act, 1989

Any discussions about child arrangements will always take place in the context of The Children Act, 1989 (the Act). It states that:

When a court determines any question with respect to

(a)the upbringing of a child; or

(b)the administration of a child’s property

the child’s welfare shall be the court’s paramount consideration.

The legislation also makes clear that courts must always be conscious of the general principle that any delay in determining the question is likely to prejudice the welfare of the child.

How then do courts ensure that the best interests of the child are protected? The so-called ‘welfare checklist’, contained in the Act lists those factors the courts and others must prioritise when reaching decisions in the interests of the child.

The Welfare Checklist

The factors listed in the welfare checklist are as follows:

  • The ascertainable wishes and feelings of the child concerned, established by reference to 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
  • Age, sex, background and any characteristics of the child which the court considers relevant
  • Any harm which the child has suffered or is at risk of suffering
  • How capable each of the parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting the child’s needs

The Act also explicitly acknowledges that generally it will be in the child’s best interests to spend time with both parents (although in cases where there is a risk of harm to the child this assumption will not apply).

Agreeing Where Your Child Will Live And Other Arrangements

The starting point for any separating parent wishing to make concrete arrangements for a child’s future, including which parent a child will live with, is to try to reach an agreement with the other parent. This can be done through private discussions with or without the help of solicitors or through family mediation or some other form of dispute resolution. As members of Resolution the team at Brookman is well-equipped to help clients work towards agreements in children and other matters related to your divorce in a constructive and non-confrontational way.

If We Can’t Agree Will The Court Decide Where Children Live?

The goal for most divorcing couples is to develop a parenting plan that each parent can rely on in the future, and which offers the child as much routine and stability as possible. If an agreement like this is not possible then you may be able to apply to court for a Child Arrangements Order. Such an application will be decided with reference to the welfare checklist discussed above.

If you do want to go to court you are obliged to demonstrate that you have attempted mediation and you must attend a Mediation Information and Assessment Meeting ( a MIAM). There, an accredited family mediator will assess your suitability for mediation and explain how the mediation process works. In some cases, including situations where there is domestic abuse, you don’t have to attend a MIAM.

If, following a MIAM, you decide to issue proceedings your case will be managed under the Child Arrangements Programme which itself is geared toward finding agreement without a formal judicial decision. You will be asked for example to attend a First Hearing Dispute Resolution Appointment (FHDRA) where you will be further encouraged to resolve the issues about children by agreement.

If no agreement is reached at the FHDRA the case will proceed with a judge issuing making directions on how to manage the case and deciding whether a supplementary fact-finding hearing and a report from Cafcass is necessary (Cafcass is the agency that advises the courts on child welfare and best interests).


Parents are strongly encouraged to find agreement about where a child should live and other matters without relying in the court to make decision. If agreement is impossible and mediation fails however, a court decision may be the only remaining option.

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