One of the main roles of the family courts in the UK is to resolve disputes about children when a relationship between parents – married or unmarried – breaks down. The child’s welfare always comes first when deciding any issues about their living arrangements, who they have contact with and their upbringing generally.
Out of court agreements and parenting plans developed through mediation and other forms of dispute resolution are strongly encouraged by the courts. Where agreement isn’t possible however, the courts will intervene and make a Child Arrangements Order. At all times the Courts are acutely aware of the need to protect children from being pressurised by either parent to take sides or make choices about where they should live. We outline how the legal system approaches issues relating to children below. If you have concerns about child arrangements or other family law matters, get in touch.
The Child’s Interests Come First
The family courts closely follow the framework of the Children Act, 1989 in cases when matters about children are being considered. Right at the start of the Act, in Section 1, the guiding principle is set out:
‘When a court determines any question with respect to the upbringing of a child… the child’s welfare shall be the court’s paramount consideration.’
The section also acknowledges that any delay in making decisions is likely to prejudice the welfare of the child.
In reaching decisions that are in the child’s best interests the courts have at their disposal the so-called ‘welfare checklist’ set out in the Act. Relevant considerations include:
- The ascertainable wishes and feelings of the child concerned
- Physical, emotional and educational needs
- The likely effect on the child of any change in his circumstances
- Any harm which the child has suffered or is at risk of suffering
- The ability of each parent to meet the needs of the child
The list is not applied exhaustively in every case. It’s used flexibly by judges to reach appropriate decisions based on each child’s unique circumstances. In practice the approach of the courts to child arrangements has moved decisively in recent years. Instead of the traditional parent-oriented view, courts now take a much more child-centric approach when considering what kind of measures should be implemented after parents separate or divorce.
In each case Cafcass, the Children and Family Court Advisory and Support Service will be involved to some extent. A Cafcass caseworker liaises with the child and the family and prepares a report for the court to help it make a decision. The main role of Cafcass is to establish what arrangements are safest for the child and what is in their best interests. Above all, Cafcass is there to make sure the voice of the child is heard in the decision-making process.
Are Child Arrangements Always Decided By The Court?
No, and in fact parents are strongly encouraged to reach agreed parenting plans themselves. In almost all cases parents must attend a Mediation Information and Assessment Meeting (a MIAM) to discuss the possibility of reaching an agreement about child arrangements before a court will entertain any application. In cases where there are concerns around child safety or domestic abuse, parents will be exempt from attending a MIAM.
The belief is that arrangements agreed privately – away from court – have a much greater chance of working out in practice than arrangements set out in an order handed down by a judge,
What Types of Order Can Courts Make?
If the MIAM and any subsequent efforts at mediation fail, either parent can apply for a court order to regulate child arrangements Section 8 of the Children Act. The following orders are available:
- Child Arrangements Orders – which can be ‘live with’ orders setting out who a child is to live with, spend time with or otherwise have contact with or a ‘spend time with’ order indicating what level of contact a non-resident parent or other person can have with the child
- Specific Issue Orders –to deal with the child’s upbringing, including religion and education
- Prohibited Steps Orders– prohibiting certain matters, notably removing the child from England and Wales
Involvement of Both Parents in the Child’s Life
Parents who separate will usually acknowledge that the involvement of the non-resident parent (the parent with whom the child doesn’t live) will benefit the child. Indeed child arrangements usually reflect this through private agreement or in appropriate ‘spend time with’ orders. Courts have, since the introduction of the Children Act, applied the ‘presumption of parental involvement’ on the understanding that a child will benefit if both parents remain involved in their life. In 2025 however the government announced that it intended to repeal this presumption. This is down to growing fears that assuming contact with both parents is always in the best interest of a child can actually be a factor in perpetuating abuse.
The law around the highly sensitive area of child arrangements is complex. We have touched on some of the main issues here. There is also a significant amount of information about family law and children on the Brookman blog, which we update regularly. We hope you find this and our other pages on child law useful.
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