When parents separate, making decisions about children can be challenging. Wherever possible, parents should try to agree child arrangements amicably, as this can help avoid the need for court proceedings. However, not all separating parents are able to reach an agreement. In these circumstances, it may be necessary to apply to the family court so that arrangements can be decided in accordance with the children’s best interests.
How does the family court decide who a child lives with?
If parents cannot agree arrangements between themselves, and other options have been explored, a separated parent may need to apply to the court for a Child Arrangements Order. In those circumstances, a common question is: “How does the family court decide which parent a child should live with?”
The Court’s paramount consideration is the child’s welfare. The Court is guided by the welfare checklist under the Children Act 1989 to assess the child’s needs and each parent’s capacity to meet them.
The factors of the welfare checklist are:
The court will consider the following when determining such applications: –
- the children’s wishes and feelings (which are considered in light of the children’s age)
- the physical, emotional and educational needs of the children
- how a change in circumstances would affect the children
- age, sex, background and any characteristics which the court considers relevant
- if the children have suffered or is at risk of suffering harm
- how capable each parent, and any other person in relation to whom the court considers the question to be relevant, is of meeting the child’s needs.
Who can apply for a Child Arrangements Order?
- The child’s parent, guardian or special guardian.
- The child’s step-parent or any person who has parental responsibility (PR) for the child under a PR agreement or order.
- Any person named as the person with whom the child is to live in a CAO that is in force.
- Any person in a marriage or civil partnership (whether subsisting or not) in relation to whom the child has been treated as a child of the family.
- Any person who the child has lived with for three years. This period need not be continuous but must not have begun more than five years before and ended three months before the application being made.
- Any person who has the consent of each person(s) named in a CAO that is in force, as the person(s) with whom the child is to live.
- Any person who has the consent of the local authority where the child is in local authority care.
- Any person who has the consent of each person(s) with PR for the child.
- Any person (who is not the child’s parent or guardian) who has PR for the child by being named in a CAO as the person with whom the child is to spend time or otherwise have contact.
The following can also apply for a CAO regulating with whom a child is to live or when the child is to live with any person or both:
- A local authority foster parent who has had the child living with them for one year immediately before the application is made.
- A child’s relative who has had the child living with them for one year immediately before the application is made.
A person who does not fall into one of the categories set out above must first apply for permission to make an application for a CAO.
What is a Child Arrangements Order?
A Child Arrangements Order (‘CAO’) is an order that regulates arrangements relating to with whom a child is to live, spend time or otherwise have contact with.
Child arrangements will vary from family to family and will be planned accordingly.
What is the procedure of applying for a Child Arrangements Order?
This is a complex area of law, so it is crucial to seek expert legal advice from a family law professional.
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