Making arrangements for children after a Separation – Custody or child arrangements


A question children solicitors often get asked by anxious parents in the midst of private law court proceedings concerning their children is 'will I get custody,' or 'will I lose custody?' By way of brief explanation, private law court proceedings are those involving parents or other relatives, as opposed to public law proceedings, in which an agent of the state, such as the local authority is involved.

Litigation concerning children is very often fraught, emotive and can be incredibly stressful for the parents, not to mention the children, at the heart of it. That combined with the current unpredictability within the already over-burdened family law system can naturally lead parents to fear the worst, especially where the person they love the most, their child, is concerned.

In foreign jurisdictions, you may hear the words 'sole custody' or 'joint custody,' with the first often being thought of as being to the near exclusion of one of the parents, and the latter being a more traditional model where a child moves back and forth between their two homes on a more regular basis, often with their base being with one parent, the so-called custodial parent, and the other parent having access rights.

In English law, we no longer refer to what are thought of as now outdated terms of custody and access, but to the concept of 'child arrangements'. That is to say arrangements for the physical care of the child. Within child arrangements there are 'lives with' and 'spends time with' orders. However within that, a child may live with and/or spend time with both parents simultaneously. Joint lives with orders are incredibly common, if not swiftly becoming the norm, and often orders are made which are termed 'shared care' orders.

Shared care can take many forms, and does not always represent an exactly equal mathematical division of a child's time. If a child's time is thought about in blocks of 14 days (for convenience), a shared care arrangement can mean that a child spends 7 days with each parent, or it can mean, as just one example, that a child spends 4 days with one parent and 8 days with the other.

In the English Court, there is no presumption of shared care. There is a presumption that a child will benefit and should spend time with both of their parents (absent any safeguarding concerns such as domestic abuse for example), however what that will look like, and what the exact division of days will be, will depend on the facts and circumstances of each individual case, with the child's best interests being the court's paramount concern, rather than a presumption of shared care.

It is interesting to contrast this with the position in other jurisdictions. In France, for example, it is standard for a child of separated parents to divide their time equally between their parents on a week on/week off basis. In England, by comparison, a more standard model of equal shared care would be when the child spends Mondays and Tuesdays with one parent, Wednesdays and Thursdays with the other, and the weekends from Friday to Monday morning are alternated.

In Australia, the starting point is equal shared custody, along with equal shared care, and the court then looks at the facts of the particular case to see if it should be departed from. In Greece, both parties share parental responsibility, but if there is a dispute, the court will intervene and award parental responsibility to just one parent.

Parental responsibility ("PR") in the English court is always shared equally, and concerns the power that parents (or sometimes other holders of PR) have to make important decision in relation to matters pertaining to a child's welfare, health and education. It can only be removed by the court, and will only be removed in exceptional circumstances: it is incredibly rare that this would happen, and there would have to be grave and serious risks to a child's welfare for the court to consider it. Regardless of what the arrangements for a child's care may be, PR will always remain equal.

It is rare for a children private law proceedings not to be given time with each of their parents, but as set out above how that child's time will be divided will depend entirely on the facts and circumstances of each case, with the child's best interests being the paramount concern of the court.

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