What the law says

Although parents are usually the best people to sort out arrangements for their own children, it does help to know what the law says about how to make these decisions.

The important information is in the Children Act 1989. It says that the most important thing is the welfare of the child, rather than either parent's wishes. It also says that courts shouldn’t make court orders about children, unless that is clearly better for the child. This is why courts will encourage parents to work out solutions themselves if it is possible for them to do so, and if it’s safe.

This means that when parents split up the court won’t automatically make a decision about where the children will live or if and when they should see the other parent. If you need a court order about these things because you cannot agree, then you have to ask the court to do this.

You can also ask the court to make orders about issues like education or medical treatment (specific issue order), or to stop a parent doing something like taking a child abroad or changing his/her surname (prohibited steps order).

When a court considers any order for a child, they use the checklist below.

If we agree, what do we do?

If you are separating, you don’t need a court order. You can simply put your arrangements in place.

If you are divorcing (or dissolving a civil partnership), you tell the court what arrangements you are making on a form that you both sign. A judge checks the form to make sure that the arrangements seem satisfactory. If they are, the divorce can go ahead. In a small number of cases, the judge might want to ask further questions before being satisfied.

If you aren’t a biological parent, you might need to sort out parental responsibility, or get an order for residence – this is so that other people (like schools, or the local authority) will recognise your status.

What will the court do if we can’t agree?

The family court can decide who children live with (this is called a 'residence order'), and how and when they see other adults (called a 'contact order'). It can also make orders about specific issues, and things that parents may not do (a 'prohibited steps' order). It can also appoint guardians to look after a child’s property and interests.

If you need one of these orders, you apply to the court by completing a form (C1, or C2 if you are in the middle of a divorce) and paying a fee. You can apply to the Family Proceedings Panel (Magistrates’ Court), or to the County Court. All the information that you need is in a leaflet called Children and the Family Courts (CB1). You can get a copy from the court or download it from the Court Service Website (link on right).

Once you have applied to the court, it will generally fix a first appointment (often called a “directions appointment”). This is meant to give the judge a chance to explore the issues and find out whether there is some scope for agreement. The judge may ask a CAFCASS officer to help with this. A large number of cases get sorted out at this stage, and often there is no need for an actual order, though the judge will generally record the agreement.

If you can’t agree at this stage, the judge will set out the timetable for what will happen next. He or she will generally order that a different CAFCASS officer investigates and writes a report. The officer will then arrange to see all the adults and the children involved; sometimes he or she will also speak to teachers and other adults who know the children. The judge will use the report to make a decision.

April 2007