Relationship breakdowns are difficult for all involved and become even more stressful when you factor in arrangements for your children. Our child custody solicitors have a wealth of knowledge and experience in helping families work out the most appropriate solution to ensure they maintain the best interests of the children.
As members of Resolution (an association for family lawyers) and MSI (an international network of lawyers), we are in a great position to help you with UK or international family matters. Our MSI membership enables us to access specialist divorce and children legal advice for you in a variety of countries around the world.
Child custody and access
During the difficult period of relationship separation, as a parent, you will want to resolve the issue of where your children will live and the day-to-day arrangements for looking after them. We encourage you to try to reach an arrangement yourselves, although if this is not possible then you can try mediation (see further below), negotiate through a child custody lawyer or make a court application.
Children disputes typically relate to:
- With whom your child should live (previously called custody or residence);
- With whom they should otherwise spend time (previously called access or contact); or
- Other specific issues.
Our child access solicitors have extensive experience representing parents and other family members alike and can guide you through all the steps, aiming to keep any emotional strain to an absolute minimum.
If all else fails (direct negotiations, negotiations through solicitors and mediation), the court may be the only option. Before going down that route, you must consider family mediation if it has not been explored before. You will be required to attend a Mediation Information Assessment Meeting (MIAM) before making an application to the court. The emphasis more than ever before is on agreeing arrangements for children, and avoiding where at all possible, the court process.
Find out more on our Family Mediation page.
Court applications for children
If mediation is unsuccessful or unsuitable, your child custody lawyer can make an application on your behalf to the family court to resolve the dispute. Legal parents and certain other adults are entitled to apply; others need to ask the court’s permission as a first step. The court can make the following orders:
A child arrangements order
This will regulate when and with whom your child is to live, spend time or otherwise have contact.
A specific issue order
This will determine a particular issue, such as which school your child should attend or his or her medical treatment.
A prohibited steps order
This will prevent someone from taking any action specified by the court without the approval of the court. This could be appropriate when, for example, there is a suggestion that the other parent might remove your child from the country without your consent.
What is the process for child custody
To apply for a court order (see above for the different types), you must first fill in the relevant court form and send it to the family court. You will need Form C100 to apply for a child arrangements order, prohibited steps order or specific issue order.
Once the application is received by the court, it will be issued (stamped and given a case number). It will be returned to the party making the application (the applicant), who must serve a copy on the other party (the respondent). The respondent should then file an acknowledgement of service indicating his or her position.
The application should be made to the local family court who will then decide on the seniority of the judge who should hear your case. Generally, it’s not possible to apply directly to the High Court as this tends to focus on highly complex cases. It’s usually a judge in a lower level court who decides whether your case is appropriate to be heard by a High Court judge.
The case will be listed for a hearing once your application and response have been received and the necessary safeguarding checks have been carried out. This is called a First Hearing Dispute Resolution Appointment (FHDRA) where the court will encourage you and the other party involved to resolve your issues. A CAFCASS officer is usually present to help you with any discussions. If you are unable to reach a settlement, the court will make an order giving directions on what will happen next. This might include the following:
- You and the other party involved file statements explaining the facts and your positions
- Further independent investigations to be carried out by CAFCASS and/or social services
- Expert evidence be obtained (for example medical or psychiatric reports)
- The case be transferred to a different court (perhaps a more appropriate local court, or the High Court)
- Your child be joined as a party to the proceedings (this means that your child will have someone to speak for them and their own child custody lawyer, usually state-funded)
- Further interim hearings to be listed to deal with some of the issues in dispute or to decide on disputed areas of fact
It is not uncommon for there to be several hearings in children proceedings and for some issues to be decided at interim hearings during the process. The issues and progress of every case are different. Some cases settle during the proceedings, in which case the judge will be asked to approve the agreed order. Other cases do not settle and require a final hearing at which the court will hear evidence from both the applicant and the respondent before the judge reaches a decision and imposes an order on all parties involved. Our child custody lawyers will manage the process and keep you fully updated throughout.
Relocating with a child within the UK
Applications concerning the relocation of a child from one part of the UK to another usually arise in the following circumstances:
- You have remarried or are in a new relationship and your new spouse or partner’s job or business has been relocated to another part of the country
- You have been offered a job in another part of the UK
- You wish to return to live near your family after your relationship separation
- You want to relocate with your child for lifestyle reasons (for example, moving from a city to the country)
The relocation of children can often be an emotive issue. To help you understand the procedures and decision-making process, we have outlined the two scenarios below:
If you wish to move within the UK with your child:
If you wish to move elsewhere in the UK then you do not need to get the other parent’s formal permission, although of course, we suggest that you inform the other party of your plans. If you move without their knowledge, they can ask the court to make an order preventing the removal of your child, at least until the circumstances are properly investigated. The court can also make an order forcing the return of your child, which can be very disruptive and upsetting for him or her. We would, therefore, advise that if you are considering a move within the UK the correct approach would be to try and agree this with the other parent or otherwise apply for a specific issue order.
If you are trying to stop the relocation of your child within the UK:
If you wish to stop an internal relocation you must apply for what is called a prohibited steps order. The court’s main concern will be the best interests of your child. The court must take various matters into account (the welfare checklist – link to page) in considering what is in the best interests of your child.
If your child has already moved within the UK:
In this situation, you can make an application for a specific issue order for the return of your child, or in some cases an application for any of the following:
- Wardship, location or collection orders
- Disclosure orders against third parties
- Any other orders to assist in finding and recovering your child
- You should also inform the police. If a criminal offence has been committed, they will be able to provide significant assistance if the child is still within the UK.
See our blog for further information: Does a parent need permission to relocate with a child?
International relocation with a child
As relationships break down and divorce, dissolution and separation cause your family structures to change, you or your ex-partner may wish to relocate to another country. Following this decision, international issues may arise that our experienced team can help you with.
If you wish to leave the UK and take your child to live permanently in another country, you must seek agreement from any person who has parental responsibility [link to parental responsibility page], which is usually the other parent. If the other parent will not agree then you will need to apply to the court for permission to take your child permanently to live abroad. This is called an application for “permission to remove from the jurisdiction”.
The court will always act in the best interest of your child. So, as well as considering the impact on the parent left behind, it will also check that your motives for taking the child abroad aren’t to prevent contact between the child and the other parent. If this is believed to be true, you will not be given permission to go.
As recent cases show that it is harder than ever to get permission from the court, it is essential to plan and consider the following details:
- Why you are planning to move
- Where you intend to live with your children
- What school they will attend
- Other important issues, such as health provision
- Realistic proposals for contact between your child and the other parent
Taking children abroad temporarily
If there is no child arrangements order in force – where you both, as parents, have parental responsibility, neither of you may take your child from the jurisdiction of the UK, without agreement from the other parent, and from anyone else with parental responsibility. Where only one of you wishes to take your child out of the country, for example on holiday, that person should obtain permission from the other parent in writing. If the other parent unreasonably withholds written permission, then you can make a court application. To increase the chances of permission being granted, you should try to deal with any likely disagreement at an early stage. Refusals of applications are rare, if they are made in good time and the trip is not to a country that is considered dangerous or otherwise unsuitable, or there are other practical issues.
If there is a child arrangements order in force – as above where both of you have parental responsibility, neither of you may take the child from the jurisdiction of the UK, without agreement from the other parent, and from anyone else with parental responsibility. However, you or the other parent may take your child abroad for a period of less than one month if that person is named in your child’s arrangements order as a person with whom your child is to live. In this situation, if you do not want your child to be taken abroad you can still make an application to the court to stop your child from leaving, for example, where there is a risk your child will not be returned at the end of the holiday.
See our blog Taking children abroad
Financial claims and maintenance for children
The breakdown of a relationship that leads to separation is never easy for you and your family. Along with all the other considerations, legal parents also have a duty to provide for their children financially.
Usually, if you are the parent who is not living with your children following a separation then you should contribute financially to the other parent for your children’s care. Often this is by way of regular maintenance payments and/or the provision of assets or capital lump sums (such as providing a home). However, if the arrangements for financial support cannot be agreed, there are various legal steps that can be taken to resolve your dispute and our child maintenance solicitors can help you with this.
Child maintenance is a regular, agreed sum of money provided to help meet the day-to-day costs of looking after your child. It covers items such as clothing and food. If you are able to agree the amount, it is not normally necessary for the courts or the Child Maintenance Service (CMS) to become involved.
The CMS is the body responsible for calculating and collecting child maintenance. The underlying aim of the CMS is to encourage parents to work collaboratively and to agree on maintenance arrangements using a Family-Based Arrangement (a voluntary arrangement), rather than resorting to using the statutory framework for calculating child maintenance. They will be able to help you with all matters involving child maintenance, including:
- locating and liaising with the other parent
- calculating and arranging the maintenance payment
- making amendments if circumstances change
- taking action if payments are not made.
In order to help you understand your options, we have outlined the different ways of reaching a financial settlement below:
These are child maintenance arrangements that you, as parents, agree directly and voluntarily. You will need to work out exactly what your child needs on a day-to-day basis and decide how you will share the cost. It is helpful to put your agreement in writing but this does not make it legally binding. If the agreed payments are not made you will not be able to enforce the agreement through the court. If you are the paying parent it is also recommended that you make payments by standing order or by bank transfer so they can be seen on your bank statements and provide evidence that payments have been made in order to prevent any future allegations of non-payment.
Help from the Child Maintenance Service
If you cannot agree to a family-based arrangement, or if the agreement breaks down, then an application can be made to the Child Maintenance Service for a statutory child maintenance calculation. The CMS will then decide how much the absent parent should pay to the receiving parent based on a standard formula, and can also collect and pass on payments if required. They base their decision on the gross (before tax) weekly income of the absent parent for the previous tax year. Once this figure is known, the maintenance calculation can then be carried out.
The CMS will look at the paying parent’s circumstances when calculating child maintenance. It understands that no two situations are the same. For example, if your child regularly spends one night or more a week staying with the parent who is paying maintenance then payment reductions are available. Also, if there are other children living with the paying parent, the paying parent will be entitled to have this taken into account when the CMS decides how much they have to pay. More information on the process is available via the government’s child maintenance calculator (link to website).
If you ask the CMS to make a child maintenance calculation, certain fees will apply. You will also have to pay additional costs if the CMS is responsible for collecting and paying the maintenance payments, rather than payments being made directly to the receiving parent. Our child maintenance solicitors encourage parents to reach a family-based arrangement, as these fees can be quite significant.
Financial orders for children on divorce or dissolution
The court has the power to make wide-ranging financial orders in relation to couples who are married or civil partners and this includes orders designed to make provision for children. The court might order that you should pay regular maintenance or school fees, or that you should own or have the right to continue living in a shared home if you are caring for children. All of this will be considered by the court as part of the process to resolve your financial dispute.
These particular court orders are relevant to any child who is considered a ‘child of the family’, including stepchildren and children who are conceived through assisted reproduction and are not the legal children of both of you. However, it only applies to parents and stepparents who are married or in a civil partnership.
The courts can also make financial provision orders for the benefit of your children under Schedule 1 to the Children Act 1989 [link to act]. These types of orders are suitable for unmarried couples following a separation and frequently accompany applications under the TOLATA. The Court can make one or more of the following financial orders:
- Child maintenance (in addition to the maximum maintenance as assessed currently by the CMS), which can include the cost of a nanny, school fees and, in some cases, the costs of university education
- A capital lump sum for costs directly referable to your child (for example, the purchase of a car or the costs of equipping your child’s home)
- A transfer or settlement of property (on trust) for the purpose of providing a home for your child during their minority (which will mean that once your child completes their secondary or tertiary education, the property which was transferred or held on trust will be returned to the parent who funded or provided it)
The court will take into account both statutory and extra-statutory factors when deciding on the content of such orders. The court takes into account all the circumstances of the case when deciding what order to make, including:
- The income, earning capacity, property and other financial resources which any parent of your child (or the applicant or person in whose favour the court proposes making the order) has or is likely to have in the foreseeable future
- The financial needs, obligations and responsibilities which any parent of your child (or the applicant or person in whose favour the court proposes making the order) has or is likely to have in the foreseeable future
- The financial needs of your child
- The income, earning capacity (if any), property and other financial resources of your child
- Any physical or mental disability of your child
- The manner in which your child was being, or was expected to be, educated or trained
- And in the case of step-children:
- Whether a person who is not the mother or father of your child had assumed responsibility for the maintenance of your child, and if so, the extent to which and basis on which he or she assumed that responsibility and the length of the period during which he or she met that responsibility
- Whether a person who is not the mother or father of your child assumed responsibility for the maintenance of your child knowing that he or she was not his or her child
- The liability of any other person to maintain your child
Court orders are made with your child’s best interest in mind and not the parent. So they will focus on the financial needs of your child, particularly any special needs, disabilities or education needs they may have.
Grandparents can often get caught in the middle of warring parents which can have a negative effect on their own relationship with their grandchildren. We recognise that grandparents are a huge asset to any family, and often play an important role in their upbringing. To help you in this difficult period, our child custody solicitors have some suggestions as to how you can work with both parents to maintain a role as a grandparent.
- In the first instance, we recommend mediation and other forms of dispute resolution as a means by which grandparents can reach an agreement with parents. These are widely acknowledged as a more sensitive approach to resolving disagreements in relation to children and are designed to avoid costly and emotionally stressful court proceedings.
- In the event that an agreement cannot be reached in relation to when and for how long you spend time with your grandchild, then you are able to apply to the court for a child arrangements order. This will regulate arrangements as to when and with whom a child is to live, spend time or otherwise have contact. If you are considering making such an application, you should be aware of the following:
- As a grandparent, you do not have an automatic right to apply for a child arrangements order. You will need the court’s permission; which is generally granted as it is considered that a child should not be denied contact in the long term with a grandparent because of difficulties between the grandparent and the child’s mother/father. It is acknowledged by the courts that grandparents play an important role in children’s lives.
- You would need to issue your application against the parent with whom the child resides, whether that be your son or daughter or the child’s other parent
- The order is for the benefit of the child and the judge will put the child’s welfare first, before any disagreement that may have occurred between the child’s parents or grandparents
- More than one child arrangements order can be made in relation to a child. If there is already a child arrangements order in place in relation to the parent who does not live with the child then there can also be another order in place in relation to that same child’s grandparent
Although the commencement of court proceedings is never a favourable route to resolution of a dispute, especially one relating to a child, it is important that grandparents realise that there are various options available to them. Our child custody solicitors can advise on your rights to access your grandchild.
Child abduction is where your child is taken abroad without your consent or without the consent of the court. It could also occur if your child is taken abroad with your consent, on holiday for instance, but not returned at the end of the agreed period.
It is essential that you act quickly and if possible prevent the abduction. An application to the court can be made to prevent the removal of your child. You will find invaluable information and a child abduction prevention guide on the charity website, Reunite International.
Following your child’s abduction, you should immediately do the following:
- Seek specialist child abduction legal advice
- Collate useful material that your legal advisers or the relevant authorities are likely to need, both in relation to the child(ren) and the suspected abductor, such as:
- recent photographs or a detailed physical description (including any distinguishing features), or both
- any ongoing medical conditions, for which treatment is required
- full name, date and place of births
- passport numbers and date of issue (if known)
- flight details or other itinerary for any known travel plans
- full names and contact details of friends, family members or other persons in the UK and abroad who may be able to provide details of the location of the child(ren)
- any existing court orders in force in relation to the child(ren)
- Seek advice from the Foreign and Commonwealth Office (FCO) and any relevant embassy, high commission or consulate, in particular, if the abduction is to a non-Hague Convention country. Here is a list of Hague Convention countries. The FCO should provide advice on the options available to you. In respect of a non-Hague Convention country, starting legal proceedings in the courts of the country concerned may be your only option if you cannot come to an agreement with the person who has abducted your child
- If your child(ren) are being retained in a country that is a signatory to the 1980 Hague Convention, contact the English central authority, namely the International Child Abduction and Contact Unit (ICACU). The ICACU is responsible for administering the 1980 Hague Convention. You will need to complete an application form to request the return of the child(ren) under 1980 Hague Convention. The ICACU will process the application, send it to their counterpart central authority abroad and provide practical advice on steps to take to recover children who have been wrongfully removed to and from England and Wales
- Consider with your legal adviser, applying for declaratory and other orders at the High Court, in particular, a declaration that the child is habitually resident in England and Wales
- Inform the police. If your child has been taken abroad, it may be possible to pursue the extradition of the offender from the relevant country
- Contact Reunite International which is a UK charity, offering support and information about international parental child abduction. Reunite International operates a telephone advice line and offers a mediation service. This can be helpful, especially where children have been abducted to a country that is not a signatory to the 1980 Hague Convention.
Emergency applications about children
The protection of children from harm is a concern we all share. If a situation arises where children may be at significant risk of being harmed, Social Services or any concerned adult may make an emergency application to the court in order to protect them.
What can you do if you are concerned for a child?
If you are concerned and feel the situation is an emergency, then the court can act very quickly – on the same day if necessary. A child custody lawyer can make an application to the court on your behalf to deal with any of the following:
A specific issue order
This will determine a particular issue, such as which school the child should attend or his or her medical treatment
A prohibited steps order
This will prevent someone from taking any action specified by the court without the approval of the court. This could be appropriate when, for example, there is a suggestion that the other parent might remove your child from the country without your consent
Divorce and children – useful resources
The Resolution website is a valuable resource for advice when telling your children about your divorce or separation and tips on managing your relationship with your ex. You will also find advice on how to manage activities and events out of two homes, advice for coping with difficult situations such as domestic abuse, addiction and parental alienation. There is also recommended reading, online resources, legal facts and a glossary, as well as details of Resolution’s new parent workshops to help parents manage the impact of their divorce or separation for their children.
Another useful online resource is CAFCASS, which offers practical advice and an interactive document to help you create a parenting plan for your children.
Top tips to keep kids best interests first during divorce or separation
Frequently Asked Questions
The court will need to consider all the circumstances of the case. The Children Act 1989 lists various matters that the court must always take into account (‘the welfare checklist’). Your child’s welfare is the court’s paramount consideration. The court has to pay particular attention to:
- The ascertainable wishes and feelings of your child (considered in the light of his or her age and understanding)
- Your child’s physical, emotional and educational needs
- The likely effect on your child of any changes in circumstances
- Your child’s age, sex, background and any characteristics which the court considers relevant
- Any harm which your child has suffered or is at risk of suffering
- How capable each of you are as a parent (or any other person the court considers relevant) in meeting your child’s needs
- The range of powers available to the court in the proceedings
Other principles the court must apply include:
- The court should only make an order if it is better for your child if the court intervenes than not
- The court should be mindful that delay is likely to prejudice your child’s best interests
- There is also a presumption in favour of both of you as parents being involved in the upbringing of your child
However, every case is unique and decided on its own facts, taking into account the decisions made by the court in previous cases.
We assure you that all court documents in relation to divorce and children proceedings are confidential (other than court orders). Documents may only be disclosed to the parties, their child custody lawyers, the court welfare officer and the court. Breach of this principle is called contempt of court and can be punished by a fine and/or imprisonment.
The government body, CAFCASS, also known as the Child and Family Court Advisory and Support Service, is part of the family court system. It provides independent assessment and reporting which assists judges hearing children cases. Also known as family court reporters, reporting officers, court welfare officers or welfare officers, CAFCASS officers are qualified to work with children and often have a social work background. Their role is to:
- Investigate and report to the court on issues concerning the welfare of children
- Assist separated parents to resolve disputes concerning arrangements for their children, if possible during the course of their enquiries
- Act as a children’s guardian (also known as a guardian ad litem) where the child is a party to the proceedings
- The initial safeguarding checks on all parties involved in your case are carried out by CAFCASS when you apply for a court order. This enables them to identify whether anyone involved is already known to social services and if there are concerns regarding safety, such as allegations of abuse or domestic violence.
- Where appropriate, CAFCASS officers have direct contact with your child to establish his or her wishes and feelings.
- Read any and all social services files concerning your child
- Interview members of your child’s family
- Speak to the school or nursery and anyone else considered relevant
- Make a professional assessment of your child’s welfare, sometimes with the assistance of reports from experts
The CAFCASS officer will then prepare a report which includes details of their investigation and their recommendations concerning your child’s best interests. Although the judge is not obliged to follow the CAFCASS officer’s recommendations, the reports often carry significant weight in the proceedings and the judge will need to be persuaded why he should not follow such expert advice.
Parental responsibility is defined 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’. In other words, if you have parental responsibility you have the right to be consulted in key decisions about your child’s upbringing, such as medical treatment and education. It does not, however, give the parent who does not have day-to-day care of your child a right to interfere in routine daily issues. It is solely for the interests of your child and not you as the parents.
A woman who gives birth to a child automatically has parental responsibility. She is usually the child’s mother, but not always, for example in some surrogacy arrangements. A father will automatically have parental responsibility if he was married to the mother either at the time of the child’s birth or subsequently. A father who is not married to the mother will only have parental responsibility automatically if the child was born after December 2003 and he is named on the birth certificate. In all other circumstances, a father will not automatically have parental responsibility and he must obtain it by one of the methods described below.
In some families, people other than a child’s parents will have Parental Responsibility; such as stepparents, grandparents, uncles and aunts. The ways in which people other than a child’s parents can get parental responsibility are explained below.
- Parental Responsibility Agreements – it is possible to obtain parental responsibility by agreement with all others who already have it. A Parental Responsibility Agreement is a standard form, which has to be completed and signed by you and all those with parental responsibility. Once it is signed and witnessed the form has to be lodged with the court. Once a Parental Responsibility Agreement has been made and lodged with the court it can only end if ordered by the court
- Parental Responsibility Orders – if no agreement can be reached then you will need to make an application to the court
Only a mother or a father (in the circumstances described above) automatically has parental responsibility. Other people can obtain parental responsibility in the following ways:
- By applying to the court for a Child Arrangements Order that the child should live with them
- By being appointed Guardian by a parent with parental responsibility
- By adopting the child
- By applying for a Special Guardianship Order
Regardless of how much you contribute financially or otherwise to the upbringing of your partner’s children, as a stepparent, you cannot automatically obtain parental responsibility. However, there are very specific circumstances when you can acquire parental responsibility, which include:
- When the court makes a Child Arrangements Order that, the child lives with you either on its own or with another person. These types of ‘step-parent orders’ are uncommon.
- When you adopt a child, which puts you in the same position as a birth parent.
- Through the signing of a Step Parent Parental Responsibility Agreement to which all other people with Parental Responsibility consent. This formal document needs to be signed by all the parties and then registered at court.
When resolving children related disputes through the courts, it is usually the case that you will pay your own legal costs. The court may order one party to cover the other’s costs, if it considers, for example, that their conduct has been particularly unreasonable. However, this is rare and the courts are discouraged from making such orders.
We can have a free initial chat with you over the telephone to discuss your needs and provide you with a more detailed estimate of likely fees.