Published on February 14, 2023

If you are contemplating divorce or separation from your partner, your first concern will probably be about where your children will live and how they will spend time with both parents. As parents, you know your children best, so you will be best able to consider the effects of your break-up on them and, hopefully, together devise the most suitable living arrangements for your children. Family mediation services, together with Resolution mediators and solicitors, can help you to achieve this outcome.

If you can’t agree upon the arrangements, you can ask the courts to decide the matter by making an application for a Child Arrangements Order. Prior to making any application to the court, it is necessary for the parties to attempt mediation.

The Children Act 1989 is the main piece of legislation dealing with family disputes about children. The Children Act states that the child’s welfare is the paramount consideration when the court consider any question in relation to the upbringing of a child. Therefore, the court will apply what is known as the ‘welfare checklist’ to help it make its decision.

The welfare checklist looks at:

The wishes and feelings of the child (considered in the light of his/her age and level of understanding).

This will normally be determined by the Children and Family Court Advisory and Support Service (CAFCASS) or Social Services, and reported to the court. The court will take into consideration whether or not a child’s wishes and feelings are their own, or whether outside factors may have influenced their decision. The court will balance the views of the parties concerned, including the views of a child who is of an understanding age (normally 9 years of age) and mature enough to form their own opinions.

His/her physical, emotional and educational needs

A child’s emotional needs can be quite difficult to deal with, and the court will consider who is best able to provide for the emotional needs of the child, both short-term and long-term.

The likely effect of any change in his/her circumstances

The potential impact of changes to the child’s life will be considered. The courts will aim to make an order that causes the least disruption to a child’s life, however, this will be balanced against the other factors to be considered.

His/her age, sex, background and any characteristics which the court considers relevant

The court will consider specific issues such as race, religion and culture when making a decision about a child. They may also take into consideration the parents hobbies and lifestyle choices if they feel it will impact on the child’s life, either now or in the future.

Any harm which he/she has suffered or is at risk of suffering

The courts will look at the risk of harm to the child, this will be immediate risk of harm as well as the risk of harm in the future. ‘Harm’ includes physical, emotional and mental harm. The courts will decide upon the potential risk of harm to the child in the future and make an order as they feel is appropriate. An order may include safety measures to protect the child.

How capable each parent is of meeting his/her needs

The courts will consider how able each parent is to care for the child and to meet their particular needs. This will be subjective and depend upon the facts and circumstances of each case, the needs of the child and the abilities of the parents concerned.

The range of powers available to the court

The court must weigh up all of the factors under the welfare checklist, and consider all available orders within their discretion. It will then make the best order available that is in the best interests of the child.

The welfare checklist is therefore extremely important when considering where a child should live and how much time they should spend with each parent. It is the framework by which the courts use in order to reach their decision. As a result, it is important to know and understand the welfare checklist prior to making any application to the court regarding your child.

Additional reading material is contained in a number of books explaining the law to people going through a divorce or separation. There is a range in our specialist shop. You can also read more on the Welfare Checklist here and more genreal guidance on family courts and how they work in these pages.

David Starkey contributed to ‘Separating With Children 101’, 3rd edition, (Bath Publishing, 2023).

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The Impact On Children

It is so easy to be told that you need to put your children first when we are separating, but what does it actually mean? When your life is turmoil and emotions are running high this can feel daunting when there are so many things to think about. If you have a child with someone, then regardless of whatever you think of them or whatever they might have done, they will still have an important role to play in the life of your child. Exceptions to this are rare. Possessive language that excludes or minimises the role of the other parent can negatively impact the relationship between that parent and the child and can increase conflict and make it more difficult to co-parent. We know that conflict and/or parental absence in particular has a negative impact on children.

Parents need to create the right conditions for children to thrive.

For children, whilst separation will bring inevitable feelings of loss and change, they can still thrive if their parents work in partnership to create the right conditions. We know that children are more likely to adapt with fewer problems, and less emotional distress, when parents are able to part with compassion and continue to work together in partnership even when they are not together. On this hub you will find lots of article and tips on how to minimise the impact on children. For example; how do you set up two homes? How do you co-parent well? What does it mean to put your children first? How do you tell your child you are separating? What do I tell the school? What about holidays? And much more...

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