Disputes about children (UK law)

If adults can't agree about arrangements for children, there is a process for resolving the dispute.

You must first consider mediation to help you reach an agreement.  If you can't agree, then you can make an application for one or more of the following orders:

A child arrangements order - The family court will set out who a child should live with or have contact with. Child arrangements orders replaced residence and contact orders from April 2014 (and ‘custody’ and ‘access’ orders in 1989).

A grant of parental responsibility - The family court can decide whether someone should have parental responsibility, and so be involved in decision-making for the child. 

A specific issue or prohibited steps order - The family court will decide the issue which is in dispute including, for example, issues in relation to medical treatment, religion and schooling or issues related to whether a trans child should access a medical pathway or transition socially.

A financial order (or child maintenance application) - As well as court orders, applications can be made to the Child Maintenance Service for regular maintenance.  The CMS and/or the family court can decide what kind of financial provision a parent or step-parent should make for a child.

A declaration of parentage - This resolves any uncertainty about whether someone is a legal parent of the child.

What the family court assesses

child in the woodsIn relation to any dispute concerning children (other than in relation to a declaration of parentage), the family court's paramount consideration is the child's welfare.  Since that is a very broad principle, the court will consider the ‘welfare checklist' which is:

  • the ascertainable wishes and feelings of the child (considered in the light of his/her age and understanding)
  • the child's physical, emotional and educational needs
  • the likely effect on the child of any change in his/her circumstances
  • the child's age, sex, background and any other characteristics which the court considers relevant
  • any harm which the child has suffered or is at risk of suffering
  • how capable each of the child's parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his/her needs
  • the range of powers available to the court.

There are also a number of other general principles the court has to apply.  It should only make an order if it is best for the child for the court to intervene.  It should be mindful that delay is likely to prejudice the child's best interests.  There is also now a new presumption in favour of both parents being involved in the upbringing of a child.  

What is the court likely to do?

Every case is fact-specific, and it is important to get advice on your particular circumstances.  As well as disputes between parents who have separated, we specialise in working with modern families.  Find out more about what the court is likely to do in relation to:

Disputes between same-sex parents

Known donor and co-parenting disputes

Surrogacy disputes

Disputes between parents through surrogacy who have separated

Disputes involving transgender parents

Disputes involving transgender children

The court process

We have created a flowchart setting out the court process in children cases, step by step.  There are usually several court hearings, designed to explore all the issues fairly and to give you the opportunity to reach an agreement.  You will usually need to file written statements, and there will be some degree of investigation by CAFCASS. Some cases settle along the way, in which case the judge may be asked to ratify an agreed order. Others do not, and there is a final hearing at which the court will hear evidence from the parties and the judge will make an order.

The role of CAFCASS

The Child and Family Court Advisory and Support Service (CAFCASS) is part of the family court system, and it provides independent assessments to help judges to decide what is in a child's best interests. CAFCASS officers often have a social work background.

Preliminary safeguarding checks are routinely carried out whenever an application to court is made.  CAFCASS may or may not then be asked to carry out a more in-depth investigation where the CAFCASS officer interviews the adults and possibly the child, school or nursery and anyone else relevant to prepare a full written report. CAFCASS reports typically carry significant weight although the judge does not have to follow the recommendations made. Occasionally, the court will appoint the CAFCASS officer as the child's 'guardian' in the legal proceedings, which means that they speak for the child and can instruct a lawyer to represent them in court. 

Have we answered your question? Would you like advice on your personal circumstances?

Email us at hello@ngalaw.co.uk or call on 020 3701 5915 and we will explain how we can help.