How Do Courts Decide Where Children Should Live?
When parents separate, agreeing where their children should live can be difficult. If they cannot reach an agreement, the Family Court may be asked to decide.
The court does not choose which parent is better. Its priority is always the child’s welfare and best interests.
What is a Child Arrangements Order?
Either parent can apply for a Child Arrangements Order (CAO) if they cannot agree on arrangements for their child.
The order can set out:
- Who the child lives with.
- Who they spend time with.
- When and how often they see each parent.
- Where contact takes place.
- Whether contact needs to be supervised.
A child may live with one parent or both, depending on the family’s circumstances.
The child’s welfare comes first
Under Section 1 of the Children Act 1989, the child’s welfare must be the court’s paramount consideration.
The judge will look at the child’s needs and circumstances rather than what is most convenient for either parent.
What factors does the court consider?
The court uses a statutory welfare checklist to help guide its decision.
- The child’s wishes and feelings
The court considers what the child wants, taking account of their age and understanding. Older, more mature children’s views may carry greater weight, but they do not automatically decide where they live. Children should never feel they have to choose between their parents.
- The child’s needs
This includes their physical and emotional wellbeing, education, routine, stability and relationships with family and others who are important to them. Any additional needs will also be considered.
- The impact of changing arrangements
The court will consider how a move or change could affect the child’s home life, school, friendships and time with each parent.
- The child’s individual circumstances
Their age, background and any other relevant characteristics will be taken into account. Every child is different, so arrangements must reflect their individual needs.
- Any risk of harm
The court will consider any concerns about domestic abuse, neglect, emotional harm or risks to the child’s safety and welfare.
- Each parent’s ability to meet their needs
The court will assess each parent’s ability to provide appropriate care, stability and support.
Do courts favour mothers or fathers?
No. There is no automatic rule that a child should live with their mother or father.
The decision is based on the child’s welfare and the evidence in each individual case.
What role does Cafcass play?
Cafcass (the Children and Family Court Advisory and Support Service) may become involved in private family law cases.
A Cafcass Family Court Adviser can carry out safeguarding checks and, where necessary, prepare a Section 7 report. This may involve speaking to the child, parents and relevant professionals.
The report provides the court with an assessment and, where appropriate, recommendations. However, Cafcass does not make the final decision – that is the judge’s responsibility.
Will the child have to go to court?
Not necessarily. Depending on their age and circumstances, a Cafcass adviser may speak to the child separately to understand their wishes and feelings.
Children should not be expected to choose between their parents. The court can also consider reports and other evidence when making its decision.
What if both parents want the child to live with them?
The court will look at the full circumstances, including:
- The child’s relationship with each parent.
- Their existing routine and stability.
- School and practical living arrangements.
- Each parent’s ability to meet their needs.
- The child’s wishes and feelings.
- Any safeguarding concerns.
- The impact of changing their current arrangements.
- Whether parents can communicate and support the child’s relationship with the other parent, where safe and appropriate.
No single factor determines the outcome. The court considers all the evidence together.
Does a child have to live with one parent?
No. A Child Arrangements Order can provide for a child to live with both parents, even if they have separate homes.
This is sometimes called shared care, but it does not necessarily mean the child spends exactly 50% of their time with each parent. The arrangements must be practical and meet the child’s needs.
What happens if there are concerns about domestic abuse?
Allegations of domestic abuse and other safeguarding concerns are taken seriously.
They can affect decisions about where a child lives and whether, or how, they spend time with the other parent. The child’s safety and welfare remain the priority.
What if circumstances change?
A family’s circumstances can change over time. A parent may move, a child’s needs may develop or new safeguarding concerns may arise.
A Child Arrangements Order can be reviewed in appropriate circumstances, with the court continuing to focus on the child’s best interests.
The child, not the conflict, comes first
Family court proceedings are not a competition between parents. The judge’s central question is:
What arrangement will best meet this child’s needs and promote their welfare?
Parents should focus on demonstrating how they can support their child, rather than criticising the other parent. Where it is safe and appropriate, supporting the child’s relationship with both parents is also important.
How Can Marlborough Law Help?
If you are facing a dispute about where your child should live, seeking specialist family law advice early can help you understand your options and explore ways to reach an agreement Our aim is to prioritise the children and their wellbeing as well as making the arrangements workable for parents. We minimise conflict thus allowing negotiation and good communication to prevail.
The Family Court give recommendations with regards to contact and it is our aim at Marlborough Law to help parents understand and appreciate the implications and effect on children. Although it is not our intention to make Applications in the Family Court for contact we are very experienced in advocacy .
We manage expectations in any Court proceedings and our network of renowned Barristers means we can do the very best for our Clients, without a contested court hearing.
