One of the most significant concerns for parents facing separation is what will happen regarding their children. Questions about where the children will live, how often each parent will see them, what happens during school holidays, and who makes decisions about their education and medical care are often at the forefront of people’s minds during an already difficult time.
The good news is that many separating parents are able to reach their own agreement regarding child arrangements without needing to involve the court. However, where agreement cannot be reached between parents, the court has the power to make decisions by way of a Child Arrangements Order.
In this regard, a question I am often asked is: “How does the court decide?”
The Welfare Principle
The answer to that question is fundamental to understanding how child arrangements work. The court’s paramount consideration must always be the welfare of the child. This is known as the welfare principle, and it means that the child’s welfare comes above all other considerations.
It is important to understand that the court is not concerned with rewarding or punishing either parent. The court does not decide cases based on who it thinks has been wronged, who has behaved badly, or whose claim is more sympathetic. Rather, the court’s focus is entirely on the child’s welfare, and what is in the child’s best interests.
This distinction is important because it means that even if one parent has behaved badly during the relationship or the separation, this will not automatically result in that parent having less contact with the child or no role in their upbringing. The court’s decision will be based on how the parent’s behaviour affects the child’s welfare and best interests, not on punishing the parent.
Factors the Court Considers
In deciding what arrangements are in a child’s best interests, the court will have regard to anything it considers to be relevant to the case. Whilst every case is different and will turn on its own particular facts, the court will give particular consideration to several important factors which are known as the welfare checklist.
Whilst no particular factor is of itself more important than the others, first on the checklist is the child’s own ascertainable wishes and feelings. The court recognises that children often have views about where they want to live and how much time they want to spend with each parent. The weight the court gives to a child’s wishes depends on the child’s age and understanding. Whilst a very young child’s view may not carry much weight, the wishes of an older child are likely to be given greater consideration. However, even the views of teenagers do not become definitive. The court will consider the child’s wishes and feelings but will balance these against other considerations.
The court will also consider the child’s needs in the broadest sense. This includes physical, emotional, social and educational needs. It includes the child’s need for a good relationship with both parents, for stability, for continuity of care and for involvement in their community and social life.
The likely effect of any change in the child’s circumstances is relevant. If a child has lived in the same home, attended the same school and been cared for by the same parent for a considerable period, the court will consider how any change to these arrangements might affect the child.
As well as the above factors, the court will consider if the child has suffered, or is at risk of suffering, any harm. This is an important consideration in determining what arrangements are in the child’s best interests.
Finally, the court will consider the capability of each parent to meet the child’s needs. This includes practical matters such as whether each parent can provide suitable housing and day-to-day care, but also more broadly the emotional and psychological support each parent can offer.
No Presumption in Favour of Either Parent
Importantly, there is no rule that children should live with one parent rather than the other. Every family is different and every case turns upon its own facts, but as a general rule the court will consider it better for the child for both parents to be involved, unless the contrary is shown.
Court Proceedings as a Last Resort
Whilst court proceedings are sometimes unavoidable, they should generally be seen as a last resort. Court involvement can be costly, time-consuming and potentially stressful for both parents and children.
Where it is possible for parents to communicate and work together, this is generally preferable to court proceedings. Parents may be able to reach agreement through discussion, through mediation or through other forms of dispute resolution.
For cases where communication between parents is difficult or inappropriate, parents should try, wherever possible, to focus on finding practical solutions that place the needs of their children first.
Get Expert Advice on Child Arrangements
If you are separating and have concerns about child arrangements, or if you are unable to reach agreement with the other parent, expert legal advice can help. We advise parents on all aspects of child arrangements and can help you understand your position, explore options for reaching agreement, and represent you in court proceedings if necessary.
Contact Chambers Fletcher Solicitors today for confidential advice on child arrangements and your family law situation.
