What do courts consider in child arrangement cases?

The decisions around the care of children when a relationship breaks down can be very emotionally charged.

When a court is deciding child custody, now referred to as child arrangements, it considers a range of factors based around the child's welfare.

These include the child's wishes and feelings, physical, emotional, and educational needs, the likely effect of any change in the child's circumstances, the child's age, sex, background, and characteristics, and any risk of harm or abuse. The court also evaluates the capability of each parent to meet the child's needs.

Johanna Brewer, director of family law at Wake Smith Solicitors looks at the subject.

This article covers:

• Who gets “custody” of a child in England and Wales?
• What is a child arrangements order?
• Who can apply?
• What is the priority?
• What does the order focus on?
• The Welfare Checklist
• How is parental capability assessed by the court?
• Types of Child Arrangements Orders
• What can determine an outcome?
• Can a child choose which parent to live with?
• Mediation and alternatives before court
• Your next move?

Who gets “custody” of a child in England and Wales?

There is no automatic preference for mothers or fathers. The court bases decisions on the child’s best interests, which may lead to sole or shared care, depending on the circumstances.

What is a child arrangements order?

A child arrangements order focuses on practical arrangements, including living arrangements and time with each parent, handovers, travel and information sharing.

It can be used whether the parents were married, in a civil partnership, living together, or never lived together. The focus is the child’s day to day arrangements, not the relationship between the adults.

It is separate from child maintenance and from financial decisions about property or savings.

Who can apply?

People who can usually apply without permission commonly include:

• Any parent of a child can automatically apply for a Child Arrangements Order, regardless of whether they have parental responsibility for a child.
• Guardians and Special Guardians
• any person named in a current and in force Child Arrangements Order with respect to the child, as a person with whom the child is to live
• Step-parents or any person in a marriage or civil partnership with a parent of the child can apply, even if the relationship is not currently ongoing.
• a person with parental responsibility

Others can apply only if the court gives permission first.

 

What is the priority?

The court's decision is guided by the principle that the child's welfare is paramount, as detailed in Section 1 of the Children Act 1989.

What does the order focus on?

It outlines who a child lives with, spends time with, and has contact with.

• Residence – Where the child lives.
• Contact – The time the child spends with the non-resident parent.
• Parental responsibility – The legal rights, duties, and responsibilities a parent has in relation to their child.
• Importantly, both parents usually retain parental responsibility, regardless of who the child lives with, unless ordered otherwise.

The Welfare Checklist

Courts apply the Welfare Checklist to determine what’s in the child’s best interest:

• The child’s wishes and feelings (age and understanding)
• The child’s physical, emotional, and educational needs
• The likely effect of any change in the child’s circumstances
• The child’s age, sex, background, and characteristics
• Any risk of harm or abuse
• The capability of each parent to meet the child’s needs

How is parental capability assessed by the court?

The court scrutinises each parent’s ability to provide a stable, nurturing environment, rather than financial capability. This includes:

• Emotional support and bonding with the child
• Consistency in routines (e.g. school runs, bedtimes)
• Willingness to cooperate with the other parent
• Evidence of substance misuse, neglect, or domestic abuse

The court may request input from Cafcass (Children and Family Court Advisory and Support Service), to conduct home visits and interviews to assess parenting capacity. You can find more information in relation to Cafcass’ role via their website https://www.cafcass.gov.uk/

Types of Child Arrangements Orders

There are several outcomes.

• Live With Order (Residence) - child lives primarily with one parent.
• Shared Care Order - child splits time between both parents.
• Spend Time With Order (Contact): The non-resident parent has scheduled time with the child.

Each arrangement is tailored to the child’s needs and shared care does not necessarily imply a 50/50 split.

What can determine an outcome?

Courts aim to ensure children maintain meaningful relationships with both parents – unless given compelling reasons not to.

Factors that influence the outcome include:

• Allegations of abuse or neglect
• Parental alienation
• Child’s wishes

Can a child choose which parent to live with?

A child’s views are generally considered from age 12 upwards, but the final decision lies with the court based on the child’s welfare.

Mediation and alternatives before court

Before attending court, most separating parents are required to attend a Mediation Information and Assessment Meeting (MIAM).

Benefits of mediation include:

• Quicker and cheaper than court
• More control over the outcome
• Reduces adversarial conflict

Johanna Brewer added: “There are advantages and disadvantages of court-decided custody arrangements.

“On a positive side it means neutral decision-making, legal enforcement and protection in high-conflict or abusive situations.

“On the other side it can be costly and time-consuming and can fuel conflict.

“The best option is to seek legal advice quickly.”

Your next move?

Legal advice is essential where there is disagreement about arrangements, communication has broken down, or there are safeguarding concerns. We can explain the court process, help prepare evidence, and clarify what options may be available. Support can also be valuable where issues like relocation, enforcement, or repeated breaches are involved.

For further advice contact Johanna Brewer on 0114 266 6660 or email [email protected] or another member of the team.

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Contact us to book your free initial appointment (30 minutes) via email by clicking here or call us on 0114 266 6660.

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Published 20/01/2026