Common questions over child arrangements


Our Senior Associate Emmie Hodges answers three of the most common questions she gets asked in respect of child arrangements.


Do my former partner and I need to try mediation before I can issue court proceedings?


Court proceedings are a last resort. They are stressful and expensive, and the courts are experiencing significant backlogs which mean that you are unlikely to be given even an initial court date for many months. There is a drive at the moment to steer parents away from the courts and towards services such as mediation to resolve disputes in respect of their children.


Unless specific circumstances apply (for example, where there are child protection concerns when  you can go straight to court) you will be required to attend a Mediation, Information and Assessment Meeting (MIAM) with a mediator, and to invite your former partner to attend either separately or together with you before you are able to issue court proceedings.  MIAM meetings can be held remotely by video. At this meeting the mediator will explain the mediation process and will discuss with you whether mediation or another method of non-court dispute resolution would be appropriate in your circumstances. Often when the parties get to the MIAM stage, their positions are quite entrenched and so parties decide mediation is not for them. But some MIAM meetings do result in the parties staying in mediation, so that they avoid court.


How likely is the court to make an order for equal shared care?


The main piece of legislation covering child arrangements is the Children Act 1989. Under Section 1 of this Act the court’s paramount consideration when making any decision about arrangements for a child must be that child’s welfare. The court is assisted by a welfare checklist to which it must have regard. In essence, this means that the court must look at the particular circumstances of each case and make decisions that are in that child’s best interests.


There is a split in opinion amongst judges, lawyers, social workers and other experts as to whether it is better for children to have one main base during school term time, or whether it can be equally beneficial for children to have two homes which they move between. Family judges have a great deal of discretion. Some will be more willing than others to make an order for 50/50 equal shared care.


In general, however, recent years have seen a shift away from the more traditional “weekend parent” model. Courts are more willing to make equal shared care orders. This is particularly the case given the societal shifts that have occurred in recent decades. The pandemic has spurred change since employers are more likely to offer flexible and remote opportunities for office based jobs. These enable many working parents to take on more childcare responsibilities.


There are a variety of ways in which an equal shared care order may work in practice, from a week on week off arrangement (where a child spends alternating weeks in each parent’s care) to arrangements which see more chopping and changing. In those, handovers typically take place at school and weekends are alternated. There is no one size fits all. The court will be looking to balance the number of handovers with ensuring that children (especially those of primary school age) do not go too long without seeing either parent. The court’s priority will be to ensure children spend quality time with each parent. Judges are less likely to be concerned with achieving an exact mathematical 50/50 split of time.


To what extent do my child’s wishes and feelings matter?


The court has to consider the ascertainable wishes and feelings of the child concerned as part of the welfare checklist.


Again, there is no one size fits all solution. Children’s views will be canvassed by a social worker working for the court service from around age 9, depending on the court. For older children, strongly held wishes and feelings will be determinative from around the age of 13 or 14 depending on the maturity of the child. By that age the court considers that there is little point in imposing unpopular arrangements on such children who will ultimately vote with their feet. By 16 there is a legal presumption that the court will not intervene at all save for exceptional reasons.

The court considers that adults need to make decisions for younger children, and so while children’s wishes and feelings will be one of the factors that the court considers when coming to a decision, they are less likely to be determinative the younger a child is below the age of 13/14 (unless the court agrees that the children’s wishes and feelings are aligned with their welfare best interests). Children will be spoken to by a specially trained welfare officer or social worker. They will take a play-based approach when assessing the wishes and feelings of young children.


It is not only the court who will take into account a child’s wishes and feelings. There are also child-inclusive mediation services available. A mediator will meet with the children as well as with the parents in order to establish their wishes and feelings.