What Can Be Decided.
These are private applications between people who look after a child, not the local authority bringing a case. If you have heard the words custody, access, residence or contact, they all describe things this page covers, under names the law no longer uses.
Child Arrangements Order
Who a child lives with and spends time with
A single order under section 8 of the Children Act 1989 that regulates with whom a child lives, spends time or otherwise has contact, and when. It replaced residence orders and contact orders in 2014.
Specific Issue Order
One question, decided
Determines a particular question the people with parental responsibility cannot agree on: which school a child attends, a medical decision, or a change of surname.
Prohibited Steps Order
Stopping something being done
Prevents a step being taken in relation to a child without the court’s consent, for example removing them from the area or from the country.
Relocation
Moving a child, within the UK or abroad
Moving a child a significant distance, or out of the jurisdiction, needs the agreement of everyone with parental responsibility or the court’s permission. Taking a child abroad without either can have serious consequences, so it is a question to resolve before travelling rather than after.
Parental Responsibility
A separate question from time
A mother has it automatically. A father has it if he was married to the mother at the birth, if he is named on the birth certificate for a birth registered after 1 December 2003, or by agreement or court order. Having it does not settle arrangements, and lacking it does not prevent an application.
The Legal Position
The child’s welfare is the court’s paramount consideration under section 1(1) of the Children Act 1989. Everything else, including what either parent wants and what either parent deserves, is subordinate to it.
The Welfare Checklist
Section 1(3): the child’s ascertainable wishes and feelings in light of their age and understanding, their needs, the likely effect of any change, their age, sex and background, any harm suffered or risked, and how capable each parent is of meeting their needs.
No Order Unless It Helps
Under section 1(5) the court must not make an order at all unless doing so would be better for the child than making none. An agreement that works does not need an order, and the court is slow to impose one where it does.
Where Abuse Is Alleged
Practice Direction 12J governs how the court handles an allegation of domestic abuse in these cases, including whether findings of fact have to be made before anything is decided about a child spending time with a parent.
How an Application Runs
Court is the last route rather than the first, and the rules require you to consider mediation before applying. Where an application is made, the court will still be looking for agreement at every stage.
Mediation, and the MIAM
You must ordinarily attend a Mediation Information and Assessment Meeting before applying for a section 8 order. It is a meeting about whether mediation is suitable, not mediation itself.
Exemptions apply, and domestic abuse is one of them. Victims of abuse are not expected to attempt mediation, and the court will inquire into an exemption that is claimed.
The First Hearing
Cafcass makes safeguarding checks before it and reports to the court. At the hearing the court looks first at whether the matter can be resolved by agreement.
Where domestic abuse or another welfare concern is raised, the court decides at this stage whether it has to determine the facts before it can decide anything else.
The Order, and Making It Work
Where matters are agreed the court can record it in an order or, applying section 1(5), decide that no order is needed. Where they are not, the court decides, generally with a welfare report.
An order does not enforce itself. Where one is breached, the court’s powers include an enforcement order for unpaid work, compensation for financial loss, variation, and committal, but each requires a further application.
Legal Aid and Fees
£180 for the consultation, up to one hour, plus VAT at 20% where UK VAT applies to you. That depends on where you are living when you instruct us, and we will tell you before you decide.
£180You do not pay it if you already hold a legal aid certificate, or if your matter is care proceedings brought by a local authority. The government eligibility checker is not a certificate: it estimates eligibility, it does not grant it, so we cannot waive the fee on a checker result.
Otherwise the fee is payable, and we carry out the legal aid assessment at the consultation itself, on means and then merit. That assessment is what decides how your case proceeds. For private law children proceedings, legal aid also requires evidence of domestic abuse from a prescribed list, on top of the means and merits assessments. The fee for the work itself is assessed after that meeting and confirmed in writing before any work starts.
Things to Know
These answers state the general position in England and Wales. Your advice will address your circumstances.
Is There a Presumption of Equal Time?
No, and this is the most common misunderstanding in this area. Section 1(2A) presumes that a parent’s involvement furthers a child’s welfare, and section 1(2B) says in terms that this means involvement of some kind, direct or indirect, and not any particular division of a child’s time. There is no starting point of half the week and no entitlement to a number of nights.
Do the Courts Favour Mothers?
The welfare checklist in section 1(3) contains no such factor, and neither does anything else in the Act. The court decides on the child’s welfare on the facts of the case, which frequently turns on who has been doing what rather than on which parent is which.
At What Age Can My Child Decide?
There is no such age. A child’s ascertainable wishes and feelings are one factor in the welfare checklist, weighed in light of their age and understanding. An older child’s views carry more weight, but they are not the decision and no birthday transfers it to them.
Do I Have to Try Mediation First?
You must ordinarily attend a MIAM, which is a meeting about whether mediation is suitable rather than mediation itself. Exemptions apply and domestic abuse is one of them. Nobody is expected to mediate with a person who has abused them.
They Are Not Sticking to the Order. What Now?
An order does not enforce itself. The court has real powers, including an enforcement order for unpaid work, compensation for financial loss, variation of the order and committal, but they follow a further application rather than arriving automatically.
Do I Need Parental Responsibility to Apply?
Not necessarily. Parental responsibility and the time a child spends with someone are different questions, and a person without it may still be able to apply, sometimes with the court’s permission. It is worth resolving both together where it is in issue.
Can We Just Agree Between Ourselves?
Yes, and where an arrangement is working the court would rather you did. Section 1(5) means it will not make an order unless doing so is better for the child than making none. An agreement can be recorded in an order where one of you needs the certainty.
What Should I Have Ready for the First Meeting?
The children’s dates of birth, who they currently live with and what the arrangements have been, whether either of you has parental responsibility and how. Anything already ordered or applied for, and any safeguarding concern you have. We will explain what happens next after considering your position.