Making child arrangements when you divorce or separate

When a couple with children separate or divorce, they will need to make decisions about where the children will live and how much time they spend with each parent. There will also be decisions to make about their upbringing, such as education, healthcare, and religion. Many couples will be able to come to these arrangements amicably, and if this has been achieved, you can either take no action at all, or you can consider having the agreement in a more formal ‘parental plan’ or as an agreed order as last resort.

Sometimes there may be disagreement about what those arrangements should be. If this is the case, here are some of the key things to consider:

Parental Responsibility

Parental responsibility refers to a legal rights, duties, powers, responsibilities, and authority that parents have in relation to their children. All parties with parental responsibility should be consulted and agree on these key issues about the upbringing of their children (unless otherwise subject to court order).

In the UK, biological mothers automatically have parental responsibility, while fathers acquire it in various ways; being named on the birth certificate, being married to the child’s mother, or obtaining a parental responsibility agreement or court order.

Mediation and non- court resolution

Once the people with parental responsibility have been established, there is a focus on encouraging parents (and any third parties with parental responsibility) to try mediation and other forms of non-court dispute resolution before resorting to court intervention. This was further strengthened by a new practice direction, effective from 29 April 2024, which your solicitor can advise you of.

Child Arrangement Orders

If you have been unable to come to an agreement through mediation, or the agreement you had made isn’t working, you can then consider seeking an order via the court process. Before doing this, you will normally need to show all other options have been exhausted, save for certain circumstances, such as where there is an urgent matter or safeguarding concerns.

Child arrangements orders determine where a child will live and how much time they will spend with each parent (or third parties).  Court orders can also specify other matters, such as schooling and medical treatment. The arrangements can be agreed or ordered by the court where no agreement has been reached.  The court will always have regard to the welfare checklist and ensure that the child or children’s best interests are paramount.

Unless there are safeguarding concerns, a court order should always be a last resort. This is a fundamental concept in family law, especially where children are involved. The court should only intervene in matters concerning children if it is necessary to do so to protect the child’s welfare.

Prohibited Steps Orders

A Prohibited Steps Order can be used to prevent a person with parental responsibility from certain activities or making certain decisions about their child without the permission of the court. It can deal with a range of parental decisions and activities, such as preventing them from picking a child up from school, moving home, changing their child’s name or receiving medical treatment. They should be used for serious matters and need to be clear and specific. Emergency orders may be obtained short notice in some cases.

Getting legal support for child arrangements

If you are having any disputes concerning the arrangements of your children, it would always be advisable to seek legal advice to discuss your position and legal options. A solicitor can then help signpost you to appropriate mediators or other alternatives, dependent upon the specific issues in your case. 

For advice on child arrangement disputes, please contact Amy Foweather on 01904 680147 or Amy.Foweather@Harrowells.co.uk.