Understanding child custody in the UK
The majority of the cases coming for family mediation involve child arrangements. This may be relating to where children are going to live, or how often they are going to spend time with a parent and for how long. A lot of parents refer to this as “custody”, however this is a term that is no longer referred to in family law. Now, the Courts refer to an all-encompassing term: A Child Arrangements Order.
The Child Arrangements Order can cover a number of things relating to the care and upbringing of your children. In terms of custody, the order may specify where a child is to live and with whom they are to spend time with, and for how long. This is known as a “live with order” or a “spend time with order”. This doesn’t mean that custody means something different to how it is used, but it isn’t a term that is formally used.
Disputes around child arrangements (or custody) often arise in the aftermath of relationship breakdown. The uncertainties with divorce or separation give rise to a number of questions moving forward; the children often take a priority. Separating couples will often try to resolve these disputes between themselves – remember, it is not impossible to settle things independently in an amicable way! For some, however, third party intervention is necessary as a way of moving forward.
In making decisions on where and with whom children are to live, and/or with whom children are to spend time with and how long, family mediation is always the first step. However, failing this then Court will be your last resort.
Family mediation is a procedure where an accredited family mediator will support you to explore proposals and come to agreements relating to child arrangements. Throughout the mediation process, you, the parents are in control – you make the decisions. Your mediator will never make decisions for you but are there to facilitate good discussions so that you can reach agreements. Your mediator will also provide you with legal information (not advice!) and in doing so will direct you with how to convert your agreements into legally binding orders. The outcome from mediation is akin to Court in that respect – you can legally settle child custody disputes.
Family mediation itself is far less stressful and time consuming that Court; it is also far cheaper! Additionally, there is funding available through Legal Aid and the Family Mediation Voucher Scheme.
If mediation fails, you will be able to make an application to Court. You can apply for a child arrangements order by completing a form known as the C100.
At Court, the decision making is in the hands of the judge hearing the case. The judge will hear both sides and will make an order that settles the custody dispute. It is important to realise that this order may not be what you necessarily want, and it will be legally binding.
If you enter into court proceedings for a child arrangements order, there are a number of things that the Court will take into account when making their decision. The main consideration is your child’s welfare. It is prescribed by law that “the welfare of the child is paramount”. In making these assessments, the Court will refer to what is known as a welfare checklist.
Found in Section 1 of the Children Act 1989, the checklist lists a number of criteria the Court must consider in making an order – these are:
- The wishes and feelings of the child (considering the child’s age and understanding).
- The physical, emotional and educational needs of the child.
- The likely effects on the child in any change of circumstances.
- The child’s age, sex, culture, religious background, or any other relevant characteristics.
- Any harm the child is suffering or is at risk of suffering
- The capability of the parents (or any relevant person) in meeting the child’s needs.
- The powers relating to the court in relation to the proceedings.
What are the agreements or orders that can be made in child custody disputes?
Whether you use family mediation or go through the Courts, similar arrangements can be made. The difference is at mediation you will make the agreement, which you can convert into a legally binding order through a consent order, whereas at Court a judge will make an order.
Shared Care (or shared residency, or shared custody!)
Outcomes of child custody disputes of course vary from case to case. An ideal outcome for many is a shared care agreement, which is sometimes termed “joint residency”. As the name suggests, this is where children will spend mostly equal time with both parents and the parents will have shared responsibility for them. An example of a shared care agreement could look something like this:
Parent 1 – Tuesday, Wednesday, Thursday
Parent 2 – Friday, Saturday, Sunday, Monday
Parent 1 – Friday, Saturday, Sunday Monday
Parent 2 – Tuesday, Wednesday, Thursday
In this example, both parents have equal time with their children and also provide an equal amount of care for them.
But actually, shared care does not mean that both parents will have 50/50 equal time. In M (A Child)  EWCA Civ 1755, some clarification was given on what shared care actually means. It was recognised that 50/50 arrangements can actually be quite difficult to organise for various reasons, such as geography, work commitments, and indeed the relationship between the parents. As such, shared care means that both parents have the shared equal responsibility with their children even where they do not have equal time with the children.
What about where one parent is primary carer? Live with orders and spending time orders.
Sometimes, for one reason or another, a 50/50 arrangement is not appropriate. This could be due to work commitments, the children’s wishes or feelings, that one parent has been the primary carer etc.
At mediation, we will explore a variety of proposals that can work for you and your family. We may identify specific issues within those proposals and work out what can be done to make them work. This is all done in a person focused way – and who knows better what works for your family than you?
With the decline of the use of custody and a move towards terminology such as residency, spending time, shared care, it appears that just because you may not spend equal time with your children, this does not necessarily mean you have any less responsibility.
Parental responsibility is a legal term that is defined in the Children Act 1989 as “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property”. The child’s mother automatically has parental responsibility; father’s will have parental responsibility if (a) They were married to the mother when the child was born or; (b) They are named on the child’s birth certificate. Read more about what is parental responsibility? If you are a father who is not married to your child’s mother, you can find out more about your rights here.
In this respect, if you have parental responsibility for your child then you will have those rights and responsibilities that come with it, regardless of how much time the children do or do not spend with you. Therefore, having a child arrangements order where the children spend more time with one parent over the other does not mean that one has “custody”, as such.
An agreement to this effect could look something like this:
Week 1: The children spend time with Parent 1 on a Wednesday after school until 19:00. They then spend time in Parent 1’s care from Friday after school until Sunday evening.
Week 2: The children spend time with Parent 1 on a Wednesday after school until 19:00.
Within this agreement, both Parent 1 and Parent 2 agree to communicate with one another about important events, such as the children’s education and health. Parent 1 receives communications from school and is able to attend parents’ evenings. What this shows, is whilst Parent 1 does not have “custody” in the traditional sense, they continue to have an active involvement in the care and upbringing of their children.
The Parenting Plan
The above arrangements are just examples and there are many other different options and proposals to be explored. It is often said in family mediation that parents “build a package” of what works for them and their family. This is often converted into something called a Parenting Plan. Parenting Plans are often drawn up as a result of the discussions and agreements at mediation and can then be presented to the Court to convert into a legally binding order.
A Parenting Plan is a document that covers everything relating to the care and upbringing of your children, including where the children are to live, with whom they are to spend time with and for how long, where they will go to school, intentions for the future, health care, holidays abroad, etc. It is a really useful document to record decisions and arrangements that not only settle the immediate dispute, but hopefully prevent disputes arising in the future. We have written a full guide on parenting plans here.
What should I do next about child custody?
If you are experiencing a child custody dispute, you should first try to resolve this independently. If this is not possible, then you should consider family mediation. The first step will be to attend a Mediation Information and Assessment Meeting (MIAM) where you will meet with one of our accredited mediators to discuss your case and decide whether mediation will work for you. If yes, we will send an invitation to the other party asking them to attend their own independent MIAM. If this is successful, we will then progress to joint mediation sessions where proposals can be explored and your mediator will support you in these discussions.
If you do not think mediation will work for you, then you should know that you will need to attend a MIAM before making an application to Court. This is because there is a legal requirement to have attempted mediation before making an application. There are some exemptions to this, which you can read about here.
Please contact us on 0113 469 9593 to speak to our team about mediation, we are happy to help. Alternatively, you can book directly through our website here. Remember, there is always support available to you in what can be a very difficult situation. We are here to help.
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Frequently Asked Questions
What is child custody?
Child custody originally referred to with which parent a child is to live and who would be making the major decisions in their life. This has become an outdated term and the Courts now refer to “residency” and “contact”.
What is shared care?
Shared care is a view that both parents have equal status in relation to the responsibility and care of their children, even when this is not necessarily 50/50. The goal for many parents may be to have equal time with their children, but it is important that even if this is not exactly 50/50, you have a shared responsibility for your children throughout their lives.
Do I have parental responsibility?
If you are the mother of the child then you will automatically have parental responsibility. If you are the father then you will have parental responsibility in the following circumstances: (a) You were married to the mother when your child was born; or (b) You are named on your child’s birth certificate. If you are the father and neither of these circumstances are present, you can still get parental responsibility through either a parental responsibility agreement or by applying to the Court for a parental responsibility order.
How do I make an application to Court for a child arrangements order for custody?
To apply to the Court you must complete a C100 court form. The cost for this is £235; however, you may be able to qualify for Help with Fees if you are receiving benefits or are on a low income. Remember, to make an application to Court you must first attempt mediation by attending a MIAM, unless you are exempt.
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