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All You Need To Know About Child Custody

Quick Glance

The Children Act 1989, as amended by the Children and Families Act 2014, replaced the old concepts of custody and access with Child Arrangements Orders. A “live with” order names the person with whom the child lives; a “spend time with” order sets out contact with the other parent or a relevant adult. If parents cannot agree, the court decides based solely on the child’s welfare, applying the statutory welfare checklist, and CAFCASS advises the court throughout.

Key Points

  • Under the Children Act 1989, the court does not award “custody”: it makes a Child Arrangements Order specifying with whom a child is to live (“live with” order) and with whom the child is to spend time (“spend time with” order).
  • A child’s welfare is the court’s paramount consideration; the court applies the welfare checklist in section 1(3) of the Children Act 1989 to every disputed application.
  • Before applying to court, most parents must attend a Mediation Information and Assessment Meeting (MIAM) under the pre-application protocol in the Child Arrangements Programme (Practice Direction 12B).
  • CAFCASS conducts safeguarding checks (including police and local authority enquiries, telephone risk identification interviews), and produces a safeguarding letter for the First Hearing Dispute Resolution Appointment.
  • Parents who cannot agree should take legal advice early; Smalleys Solicitors in Arnold and Nottingham can help reach a workable arrangement without unnecessary court proceedings wherever that is safe.

When a relationship breaks down and children are involved, the immediate question is with whom the children live and how they maintain relationships with both parents. English and Welsh family law answers that question through Child Arrangements Orders.

Child Arrangements Orders were introduced in their current form by section 12 of the Children and Families Act 2014, which removed the earlier definitions of residence orders and contact orders. A “live with” order identifies where a child is based and who has day-to-day care; a “spend time with” order sets out the contact the child has with the other parent or family members. One order can contain both elements for different people.

Agreement between parents is always preferable to court proceedings, but where agreement cannot be reached, the family courts provide a structured process designed to keep the child’s welfare front and centre to all decisions.

What a Child Arrangements Order Does

A Child Arrangements Order made under section 8 of the Children Act 1989 regulates two things: with whom a child is to live, spend time or otherwise have contact, and when any of those arrangements are to take place. The order can name more than one person and create a shared “live with” arrangement in which the child divides time between two households. There is no presumption in favour of any particular split of time; the court shapes the order to the specific family’s circumstances.

A parent named in a “live with” order may take the child outside England and Wales for up to one month without the other parent’s consent, per section 13(2) of the Children Act 1989. Any longer absence or permanent relocation requires written agreement from all those with parental responsibility or a separate court order.

Parental responsibility, defined in section 3 of the Children Act 1989 as all the rights, duties, powers, responsibilities and authority that a parent has in relation to a child, is distinct from a Child Arrangements Order, though a “live with” order does confer parental responsibility on a person who did not already hold it.

Consider a Nottingham father whose two children live with their mother following separation. He and the mother disagree on how much time he should have with the children. A Child Arrangements Order can set a clear, enforceable framework: the children live with the mother and spend alternate weekends plus one weekday evening per week with the father, giving both parents certainty and reducing the scope for ongoing conflict.

From Separation to Court Order

Trying to Agree Without Going to Court

Parents who separate do not need a court order if they can agree on sensible arrangements for their children. An agreement is more flexible, cheaper, and generally better for the children than contested proceedings. If an agreement is reached, parents can ask the court to record it as a consent order, which carries the same legal force as any other Child Arrangements Order and can be enforced if one party later fails to comply. Solicitors experienced in family law can draft a consent order in terms that the court will accept.

Mediation Information and Assessment Meeting (MIAM)

Before applying to court, a prospective applicant must attend a MIAM unless an exemption under rule 3.8(1) of the Family Procedure Rules 2010 applies. The MIAM is conducted by an authorised family mediator who explains non-court dispute resolution options, assesses whether mediation is appropriate, and checks for domestic abuse and safety concerns. If mediation is unsuitable, the mediator confirms this, and the applicant can proceed to court.

Since April 2024, courts have scrutinised MIAM exemptions more closely. Under amendments to the Family Procedure Rules, the court can consider at any stage whether a claimed exemption remains valid and may adjourn the application where it does not.

Applying to Court

If the MIAM does not resolve the dispute, the applicant files a Form C100 (with a C1A where there are allegations of domestic abuse or harm) at the family court. Under the Child Arrangements Programme (Practice Direction 12B), updated in April 2024, the First Hearing Dispute Resolution Appointment (FHDRA) ordinarily takes place in week five after issue, and no later than week six. Both parties must attend; a CAFCASS officer also attends.

Before the FHDRA, CAFCASS carried out safeguarding enquiries, including police and local authority checks and telephone risk identification interviews with each parent. CAFCASS produces a safeguarding letter filed with the court at least three working days before the hearing, setting out the outcomes of those checks and any welfare or safety concerns identified. At the FHDRA, the judge works with the CAFCASS officer to assist the parties in reaching an agreement, identify the real issues, and give directions for any further steps.

Where welfare concerns remain unresolved, the court may direct a fuller report under section 7 of the Children Act 1989. A section 7 report involves the CAFCASS officer meeting with both parents and the child separately, applying the welfare checklist, and reporting to the court with a recommendation. Courts also commonly direct parents to attend the Planning Together for Children course, run by CAFCASS and Action for Children, which helps parents reduce conflict and focus on the impact of separation on their children.

How the Court Decides

In any opposed application, the court must apply the welfare checklist in section 1(3) of the Children Act 1989. The court weighs all the factors together; it is not a tick-box exercise. The checklist covers the child’s own wishes and feelings (having regard to their age and understanding), their physical, emotional and educational needs, the likely effect of any change in circumstances, any harm they have suffered or are at risk of suffering, and how capable each parent is of meeting their needs.

The court will only make an order if doing so is better for the child than making no order at all. Where domestic abuse is raised, Practice Direction 12J requires the court to address the allegations and, if established, to ensure any order does not expose the child or protective parent to further harm. CAFCASS’s domestic abuse practice policy, updated in December 2025, requires CAFCASS officers to provide clear, evidence-based recommendations about “live with” and “spend time with” arrangements wherever domestic abuse has been reported.

Frequently Asked Questions

Is “custody” still a legal term in England and Wales?

No. The Children Act 1989 replaced the concepts of custody and access with Child Arrangements Orders. Courts do not grant custody; they make orders specifying with whom a child is to live and with whom the child is to spend time. Using the word “custody” in a legal document or court application has no effect and may indicate the document is out of date.

Do I have to go to court to sort out child arrangements?

No. Parents who agree on where their children will live and how much time children spend with each parent do not need a court order. A written agreement, or a consent order drawn up by a solicitor and approved by the court, is sufficient. Court proceedings should be a last resort where agreement cannot be reached or where safety is a concern.

What does CAFCASS do in my case?

CAFCASS (the Children and Family Court Advisory and Support Service) carries out safeguarding checks before the first court hearing, including police and local authority enquiries and a telephone interview with each parent, and produces a safeguarding letter for the court. If welfare concerns are identified, CAFCASS may be asked to prepare a fuller section 7 report after meeting with the parents and, where appropriate, the child. Its role is to advise the court on what is in the child’s best interests; it does not make binding decisions, but its recommendations carry significant weight.

Can my child decide which parent they live with?

A child’s wishes and feelings are one factor in the welfare checklist, weighted according to their age and understanding, but they do not automatically determine the outcome. There is no specific age at which a preference becomes decisive. An older teenager with clear, settled views will carry more weight than a young child, but the court always looks at all the circumstances, including whether those views have been shaped by one parent.

What happens if the other parent ignores a Child Arrangements Order?

Breach of a Child Arrangements Order is taken seriously. The parent in whose favour the order was made can apply to enforce it. Under section 11J of the Children Act 1989, the court can make an enforcement order requiring the defaulting party to carry out unpaid work. In serious cases, it may vary the order, require attendance on a separated parenting programme, or impose a fine or, in the most extreme cases, a committal to prison.

Getting legal advice

If you face a dispute about child arrangements in the Nottingham or Arnold area, our Family Law Solicitors can advise on the options available, including how to reach an agreement without court proceedings and how to protect your position if proceedings become necessary. Where family breakdown also raises financial questions, our divorce and civil partnership dissolution solicitors can advise across all aspects.

About the Author

This article was written by Graham Neil, Solicitor in the Family Law Department at Smalleys Solicitors, SRA number 229160.

Graham has more than twenty years’ experience in family law and is an accredited specialist with Resolution, the national organisation of family lawyers committed to a constructive, non-confrontational approach to family disputes. His practice covers all aspects of divorce, financial remedies, and child arrangements, including complex financial cases and sensitive disputes involving children.

Smalleys Solicitors is regulated by the Solicitors Regulation Authority under SRA number 639164.