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What Is The Welfare Principle?
The welfare principle means your child’s welfare is the court’s paramount consideration whenever it decides on a matter concerning a child. It comes from section 1 of the Children Act 1989 and applies in England and Wales. The House of Lords confirmed in J v C [1970] AC 668 that the child’s welfare rules over and controls every other consideration.
Last reviewed: 14th October 2026
Article summary
✓ Your child’s welfare is the paramount consideration when a court decides a question about their upbringing or property under the Children Act 1989.
✓ No parent has an automatic advantage; biology and marital status do not create a presumption in either parent’s favour.
✓ The court applies a six-factor welfare checklist in section 1(3) of the Children Act 1989 to test the facts of your family specifically.
✓ The court will not make an order at all unless doing so is better for your child than making no order, so applying to court should rarely be seen as the first step but rather a measure of last resort (in cases of real need)
✓ Delay is treated as harmful to your child by default, so early advice and prompt action can protect your position if a dispute is developing.
In 1925, Parliament first wrote the welfare test into English law through the Guardianship of Infants Act 1925, which directed courts to treat a child’s welfare as the “first and paramount consideration” and expressly rejected any inherent superiority for either parent’s claim. The issue, which was debated heavily in the House of Commons, ended a legal era in which a father’s rights over his children could outweigh a mother’s, regardless of the child’s needs and wishes. The rule crossed almost unchanged into section 1 of the Children Act 1989, which governs every child’s case in England and Wales today.
In my experience, parents in dispute often assume the law favours whoever a child currently lives with. However, this is not the case. In fact, your interests are subordinate to your child’s welfare in matters involving their upbringing and property, and this is sometimes an uncomfortable fact to come to terms with.
What does the welfare principle actually require?
The welfare principle requires a court to treat your child’s welfare as the single overriding factor whenever it decides a question about their upbringing or is asked to resolve a dispute, ahead of any parent’s rights or wishes.
Section 1(1) of the Children Act 1989 states that when a court determines any question about a child’s upbringing, or the administration of a child’s property, “the child’s welfare shall be the court’s paramount consideration”. The word “paramount” carries specific legal weight: it does not mean welfare is one important factor to be balanced against others; it means welfare governs the outcome once it is engaged.
The principle only applies once a genuine question about a child’s upbringing is before the court. It does not create a general power to intervene in family life, and section 1(5) of the Children Act 1989 separately restrains the court from making an order at all unless doing so is better for your child than making no order.
What is the welfare checklist?
The welfare checklist, set out in section 1(3) of the Children Act 1989, is used by the court to decide what is in the best interests of your child. They are weighed together against your child’s specific circumstances.
The checklist requires the court to consider your child’s ascertainable wishes and feelings, in the light of their age and understanding; their physical, emotional, and educational needs; the likely effect on them of any change in circumstances; their age, sex, background, and any other characteristics the court considers relevant; any harm they have suffered or are at risk of suffering; and each parent’s capacity to meet their needs. No single factor on the list is weighted above the others in every case, so the court’s task is to assess how the specific facts of your family engage each one.
| Welfare checklist factor | What the court looks at | Example of how it applies |
|---|---|---|
| Wishes and feelings | Your child’s views, weighted by age and maturity | A 14 year old’s stated preference carries more weight than a 4 year old’s |
| Physical, emotional, educational needs | Day-to-day care, stability, and schooling | Continuity of school and routine during a dispute |
| Likely effect of change | Disruption caused by a proposed move or new arrangement | Relocating away from an established support network |
| Age, sex, background, characteristics | Individual circumstances relevant to welfare | A child’s cultural or religious upbringing |
| Harm suffered or at risk | Domestic abuse, neglect, or exposure to conflict | Safeguarding concerns mean arrangements need to be carefully considered |
| Parental capacity | Each parent’s ability to meet the child’s needs | Practical care arrangements, housing, and support |
Does delay affect my case?
Yes, delay is treated as harmful to your child by default under the Children Act 1989, so the court manages children’s cases on the basis that time works against your child.
Section 1(2) of the Children Act 1989 requires the court to have regard to the general principle that delay in determining a question about a child’s upbringing is likely to prejudice their welfare. This does not mean every case moves quickly in practice, since the Ministry of Justice recorded a national average of 35 weeks from application to disposal for private law Children Act cases in October to December 2025. It does mean that if you are waiting to see whether a dispute resolves itself, the law’s own starting assumption is that waiting carries a cost for your child, not a neutral one.
Where informal arrangements have already broken down, and further delay is not protecting your child, this principle supports moving toward mediation, non-court dispute resolution outcomes or a court application rather than allowing an unresolved dispute to continue by default.
When will the court decide not to intervene?
The court will decide not to make an order, even where a genuine dispute exists, if it concludes that making no order at all is better for your child than making one.
Section 1(5) of the Children Act 1989 sets out the “no order” principle: the court will not make an order under the Act unless it considers that doing so is better for the child than making no order at all. This reflects a deliberate policy against unnecessary court involvement in family life, and it means an application to court is not always the right step even where you and the other parent disagree. Where you can reach and keep to an informal agreement safely, the welfare principle itself supports resolving matters without a court order, since an order adds a layer of formality your child’s welfare may not actually require. The Court strongly recommends that, where safe, parents should agree arrangements without involving the Court. The President of the Family Division has written a letter to parents who are contemplating using the Court system, and it is recommended reading for all parents who are facing a potential child arrangement dispute.
Talk to Purcell Solicitors
If you are trying to understand how the welfare principle would apply to a dispute involving your child, or you need help deciding whether to apply to court, we can talk you through how the law is likely to approach your situation. Contact us on 01908 693000 to discuss how we can help you.
Further reading:
For more information, please see below.
A Complete Guide To Children’s Law After Separation
What is a child arrangements order?
What is parental responsibility?
Frequently asked questions
Does the welfare principle favour mothers over fathers?
No, the welfare principle contains no presumption favouring either parent. The Supreme Court confirmed in Re B (A Child) [2009] UKSC 5 that biology and gender carry no automatic legal weight, and every decision depends on the welfare evidence specific to your child.
Can my child's wishes decide the outcome on their own?
Not solely. Your child’s wishes are one of six factors in the welfare checklist, weighted according to their age and understanding. An older child’s clearly reasoned view carries significant weight, but the court still considers the other factors before deciding what serves their welfare overall. Children should rarely be given the responsibility for what are adult decisions, but their voices should be heard as appropriate.
Do I need to go to court to use the welfare principle?
No, the welfare principle applies whether or not you go to court. Officers of the court, solicitors, and barristers abide by the welfare principle when giving advice on matters regarding a child’s welfare or property.
Director – SRA number: 494434
Lisa Buckridge is a Director at Purcell Solicitors and has over 20 years of experience in family law. She qualified in the early 2000s and became a director of the firm in October 2015. She holds accreditation as a Family Mediation Council-accredited Mediator, obtained in 2022, and is one of a small number of lawyer-mediators qualified to carry out Child Inclusive Mediation. She is also a trained collaborative lawyer and hybrid mediator.
Lisa handles the full range of family law matters, including divorce, financial settlements, children proceedings, pre- and post-nuptial agreements, and cohabitation disputes. Her referrals come principally from solicitors, including London-based practices, the local judiciary, and former clients, a pattern that reflects her standing in the field. She has worked on cases involving a terminal health diagnosis and cases in which the opposing party was a specialist family law barrister.
Chambers and Partners ranks Lisa in Band 3 for Family/Matrimonial in the Thames Valley in the UK Guide 2026. She has also been spotlighted specifically for her mediation practice in the Family/Matrimonial Mediators: Thames Valley category. Chambers describes her as “an excellent solicitor who robustly and effectively represents her clients’ interests” and as “incredibly clever” with the ability to “construct cases perfectly”.
Her reported cases include Re R (a child) EWCA Civ 35, in which the Court of Appeal held that a judge had erred by failing to properly evaluate a child’s wishes or to hear evidence from a CAFCASS officer before departing from that officer’s recommendation. She also acted in Scotching and Birch EWHC 844 (Ch), a case concerning burial arrangements and letters of administration following the death of a child; the case has since been cited in several academic papers and journal articles.
Lisa is a member of Resolution and is regulated by the Solicitors Regulation Authority (SRA number: 494434). She can be contacted at lisa@purcellsolicitors.co.uk.
What Is Parental Responsibility?
Parental responsibility means the legal rights, duties, and authority you have to make decisions about your child’s life, such as schooling, medical treatment, and religion. It applies in England and Wales under section 3 of the Children Act 1989. Every mother has it automatically from birth, and a father has it automatically only if he was married to the mother at the time of birth, or if he is both the biological father and registered on the birth certificate on or after 1st December 2003. Parental responsibility does not depend on living with your child or paying, or not paying, maintenance.
Last reviewed: 12th October 2026
Article summary
✓ Parental responsibility gives parents the legal authority to make decisions about your child’s schooling, medical care, religion, and name.
✓ Mothers have it automatically; unmarried fathers registered before 1st December 2003 must actively acquire it.
✓ Birth certificate registration only confers parental responsibility on a man who is genuinely the child’s biological father, following a March 2026 Court of Appeal ruling.
✓ You can gain parental responsibility by agreement, by re-registering the birth, or by applying to court using form C1.
✓ Not having parental responsibility does not stop you from applying for it, and a court will usually grant it unless there is a good reason not to.
The term ‘parental responsibility’ is used a lot in family law cases concerning children. Many of my clients come to me completely unfamiliar with what it actually means. It can be especially upsetting for unmarried fathers who have incorrectly believed that because they lived with the mother of their child at the time of birth, despite not being on the birth certificate, they have an automatic say in their son or daughter’s education, religion, medical treatment, etc.
To assist with parental responsibility, I have created this brief guide.
What is parental responsibility?
Parental responsibility relates to who can make decisions regarding the care and upbringing of a child. The legal definition under Section 3(1) of the Children Act 1989 is “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property”. In Re H-B (Children) (Contact) [2015] EWCA Civ 389, the President of the Family Division, Sir James Munby, commented that:
“…parental responsibility is more, much more, than a mere lawyer’s concept or a principle of law. It is a fundamentally important reflection of the realities of the human condition, of the very essence of the relationship of parent and child. Parental responsibility exists outside and anterior to the law. Parental responsibility involves duties owed by the parent not just to the court. First and foremost, and even more importantly, parental responsibility involves duties owed by each parent to the child.”
Parental responsibility does not remain fixed; it may naturally lessen as the child matures. Any parent who has tried to tell a 15-year-old what to do understands this all too well. In Hewer v Bryant [1969] EWCA Civ J0619-2, Lord Denning said
“The legal right of a parent ends at the 18th birthday, and even up till then, it is a dwindling right which the courts will hesitate to enforce against the wishes of the child, the older he is. It starts with a right of control and ends with little more than advice.”
What does parental responsibility actually cover?
There is no precise definition of parental responsibility, but its scope includes:
✓ education
✓ religious upbringing
✓ consenting to medical treatment
✓ the child’s surname
✓ removal from the jurisdiction and consent to the child’s emigration or holidays
✓ applying for or vetoing the issue of a child’s passport
When making decisions, smaller decisions (such as personal care for children, activities undertaken and how the children spend their time with that parent) can be taken alone but bigger decisions, such as changing a child’s surname or taking them abroad for a holiday – or relocating with the child whether in England and Wales or outside, need everyone’s agreement. In the absence of agreement to such issues, an Order of the Court would be required.
Parental responsibility is separate from where your child lives day to day. You can hold full parental responsibility while your child lives mainly with the other parent, without losing your legal status as a decision-maker.
Who has parental responsibility?
You have parental responsibility automatically if you are your child’s mother, or if you are the father and were married to the mother at birth or are the biological father and registered on the birth certificate on or after 1st December 2003.
Every mother has parental responsibility automatically from the moment of birth and only loses it through adoption or a parental order made under the Human Fertilisation and Embryology Act 2008. A father who was married to the mother at the time of birth has parental responsibility automatically, regardless of when the birth was registered. An unmarried father gains it automatically only if he is registered as the father on the birth certificate on or after 1st December 2003.
The Court of Appeal clarified this route significantly in Re J (Loss of Parental Responsibility) [2026] EWCA Civ 344, one of three conjoined appeals reported together as Re J, Re M and Re P, handed down on 20th March 2026 by Sir Andrew McFarlane, President of the Family Division, sitting with Lady Justice King and Lord Justice Stuart-Smith. The court held that the word “father” in section 4 of the Children Act 1989 means the child’s biological father only, so a man mistakenly or wrongly registered on a birth certificate, who is not in fact the biological father, never acquires parental responsibility, regardless of how long he believed himself to be the father or how much of a parental role he has played.
A second female parent, recognised under section 43 of the Human Fertilisation and Embryology Act 2008, has parental responsibility automatically where she was in a civil partnership with the mother at the time of treatment, or entered one before the birth. If none of these automatic routes applies to you, you do not currently hold parental responsibility, but you are not without options.
How do I obtain parental responsibility?
If you do not already hold parental responsibility, you can gain it by agreement with the other parent (with a formal Parental Responsibility agreement), by re-registering the birth, or by applying to the Family Court for a Parental Responsibility Order.
Section 4 of the Children Act 1989 sets out three routes for an unmarried biological father: re-registering the birth to add his name to the certificate, entering into a parental responsibility agreement with the mother, or applying to the court for a parental responsibility order. A parental responsibility agreement must be made on the prescribed form, C(PRA1), and signed in the presence of a court official. Section 4ZA of the Children Act 1989 provides the equivalent agreement route for a second female parent, using form C(PRA3).
Where the other parent will not agree, you can apply to the Family Court using form C1, and the current court fee is £270.
Section 4A of the Children Act 1989 allows a step-parent to acquire parental responsibility in the same way, either by agreement with everyone who already holds it, or by court order, provided the step-parent is married to or in a civil partnership with a parent who has parental responsibility.
| Route | Who it applies to | What is required | Approximate cost |
|---|---|---|---|
| Automatic (mother) | All birth mothers | Nothing further is normally required | No cost |
| Automatic (married father) | Fathers married to the mother when the child is born | Nothing further is normally required | No cost |
| Birth registration | Unmarried biological fathers registered on or after 1 December 2003 | Registered on the birth certificate as the child’s biological father | No court fee |
| Parental responsibility agreement | Eligible unmarried fathers, second female parents and step-parents where the necessary agreement is obtained | Use Form C(PRA1) for a father, C(PRA2) for a step-parent or C(PRA3) for a second female parent; the agreement must be witnessed and registered | No court fee for the agreement; solicitor fees may apply |
| Parental responsibility order | An eligible applicant where agreement cannot be reached | Apply to the Family Court using Form C1 | £270 court fee; solicitor fees may apply |
Will the court say yes?
In Re H (Minors) (Local Authority: Parental Rights) (No 3) [1991] Fam 151, the Court of Appeal set out three factors relevant to an application for PR:
- the degree of commitment shown to the child,
- the degree of attachment between them, and
- the reasons for the application.
Lord Justice Balcombe, giving the leading judgment, held that these factors guide the court’s assessment under the welfare paramountcy principle rather than replacing it, and later cases have confirmed that a court can still refuse an order even where all three factors are met, for example where there is a history of violence or a clear intention to misuse the status to interfere with care arrangements.
Holding parental responsibility does not, by itself, give you a right to any particular amount of time with your child. Section 1(2B) of the Children Act 1989 states that a parent’s involvement in a child’s life can be direct or indirect and does not imply any particular division of a child’s time. Therefore, questions about contact and living arrangements are decided separately through a Child Arrangements Order.
Can parental responsibility be taken away?
Parental responsibility acquired through an agreement or a court order can be brought to an end by a further court order, but a mother’s automatic parental responsibility cannot be removed by another parent applying to court – only adoption ends this.
Section 4(2A) of the Children Act 1989 allows the court to end a parental responsibility agreement or order on the application of anyone with parental responsibility, or, with the court’s permission, the child themselves if they have sufficient understanding. The court will only remove parental responsibility in cases involving serious welfare concerns, since removing parental responsibility is a significant step. A mother’s automatic parental responsibility, and a father’s parental responsibility gained through marriage to the mother at birth, cannot be removed in this way; those forms of parental responsibility end only through adoption or death.
Please note this article does not constitute legal advice.
Talk to Purcell Solicitors
If you are unsure whether you already hold parental responsibility, want help reaching an agreement with the other parent, or need to apply to the Family Court, we can talk you through the right route for your situation. Contact us on 01908 693000 to discuss how we can assist.
Further reading:
For more information, please see below.
A Complete Guide To Children’s Law After Separation
What is a child arrangements order?
What is the welfare principle?
Frequently asked questions
Do I lose parental responsibility if I stop seeing my child?
No, parental responsibility does not lapse through lack of contact. If you hold it through an automatic route, an agreement, or a court order, it continues unless a court specifically brings it to an end or your child is adopted.
Can I apply for parental responsibility if the mother refuses to agree?
Yes, you can apply to the Family Court using form C1 for a parental responsibility order. There is a court fee (currently £270), and the court decides the application using the welfare checklist rather than requiring the other parent’s consent.
Does paying child maintenance give me parental responsibility?
No, paying child maintenance has no legal connection to parental responsibility. The two obligations are governed separately, and paying maintenance neither creates parental responsibility nor is required to keep it once you have it.
Director – SRA number: 494434
Lisa Buckridge is a Director at Purcell Solicitors and has over 20 years of experience in family law. She qualified in the early 2000s and became a director of the firm in October 2015. She holds accreditation as a Family Mediation Council-accredited Mediator, obtained in 2022, and is one of a small number of lawyer-mediators qualified to carry out Child Inclusive Mediation. She is also a trained collaborative lawyer and hybrid mediator.
Lisa handles the full range of family law matters, including divorce, financial settlements, children proceedings, pre- and post-nuptial agreements, and cohabitation disputes. Her referrals come principally from solicitors, including London-based practices, the local judiciary, and former clients, a pattern that reflects her standing in the field. She has worked on cases involving a terminal health diagnosis and cases in which the opposing party was a specialist family law barrister.
Chambers and Partners ranks Lisa in Band 3 for Family/Matrimonial in the Thames Valley in the UK Guide 2026. She has also been spotlighted specifically for her mediation practice in the Family/Matrimonial Mediators: Thames Valley category. Chambers describes her as “an excellent solicitor who robustly and effectively represents her clients’ interests” and as “incredibly clever” with the ability to “construct cases perfectly”.
Her reported cases include Re R (a child) EWCA Civ 35, in which the Court of Appeal held that a judge had erred by failing to properly evaluate a child’s wishes or to hear evidence from a CAFCASS officer before departing from that officer’s recommendation. She also acted in Scotching and Birch EWHC 844 (Ch), a case concerning burial arrangements and letters of administration following the death of a child; the case has since been cited in several academic papers and journal articles.
Lisa is a member of Resolution and is regulated by the Solicitors Regulation Authority (SRA number: 494434). She can be contacted at lisa@purcellsolicitors.co.uk.
What Is A Child Arrangements Order?
If you need a court to decide where your child lives or when they spend time with each parent, a Child Arrangements Order is the order that does this. It is made under section 8 of the Children Act 1989 and applies in England and Wales. A Child Arrangements Order does not have to mean it is made following a contested hearing, as many parents either agree in early stages of proceedings, or in some cases reach outcomes by non-Court resolution methods, or private agreement in some extreme circumstances, and ask the court to approve it as a consent order.
Last reviewed: 6th October 2026
Article summary
✓ A Child Arrangements Order is a Family Court order that sets out where your child lives, who they spend time with, and what other contact takes place.
✓ You do not need one if you and the other parent can agree arrangements safely; as there is a presumption of no order, you need one if agreement is not possible or not safe.
✓ The court applies the welfare checklist in section 1(3) of the Children Act 1989 to your family’s own facts.
✓ Applying involves a court hearing (currently £270) using form C100, and the national average time to a final order was 35 weeks in October to December 2025, though urgent cases can move faster.
✓ If the other parent breaches the order once it is made, you can apply to enforce it, and the court can impose an unpaid work requirement, order compensation, or commit them for repeated breaches.
Parents who come to me for advice about Child Arrangement Orders are rarely calm. Many are exhausted from the mental strain caused by uncertainty regarding custody and access matters and worrying about the effect arguments are having on their children. Although it can feel like you are facing this alone, as Family Law Solicitor who handles these types of disputes daily, in most cases I can quickly tell whether you need a court order, a parenting plan, or whether family mediation or arbitration offers the most effective dispute resolution route for your situation.
What does a child arrangement order actually do?
A Child Arrangement Order sets out where your child lives, who they spend time with, and what other contact, such as phone or video calls, takes place between your child and another person.
Section 8 of the Children Act 1989 gives the Family Court power to make a Child Arrangement Order, defined as an order regulating arrangements relating to with whom a child is to live, spend time, or otherwise have contact, and when that contact takes place. The order replaced the older residence and contact orders and can record a “lives with” arrangement for one or both parents alongside a “spends time with” schedule for the other.
The order can also address contact with grandparents, siblings, or other relatives; however, they may need to apply to the court for permission to request a child arrangement order. The court can also impose conditions on the order such as supervision at a contact centre where safety concerns exist.
Do I need to apply for a child arrangement order if I have separated from my children’s father or mother?
You need a Child Arrangement Order only if you and the other parent cannot agree arrangements for your children privately or through non-court dispute resolution methods.
Many parents manage without ever applying to court. A written parenting plan can record school routines, holidays, handovers and communication, and it works well where both of you are agreed. Government guidance and the Court system both encourage parents to reach agreement outside court wherever it is safe to do so, because an arrangement you both keep to typically involves less disruption for your child than contested proceedings.
An order becomes the appropriate route once informal arrangements have broken down, one of you is not complying with what was agreed, or safety concerns, such as domestic abuse or coercive control, mean mediation or other forms of non-court dispute resolution is not appropriate.
What happens if we cannot agree privately on arrangements for our children?
If agreement is genuinely not possible and you need to apply to the Court, you will usually need to attend a Mediation Information and Assessment Meeting before applying for a court order.
A Mediation Information and Assessment Meeting, known as a MIAM, is required under Practice Direction 3A of the Family Procedure Rules before most private law children’s applications, unless a recognised exemption applies, such as urgency or evidence of domestic abuse. If mediation is not appropriate, or has already failed, and other forms of non-Court dispute resolution you can make an application to the family Court.
Once your application is issued, Cafcass carries out safeguarding checks with the police and local authority and sends the court a safeguarding letter at least three days before the first hearing. Where the case needs more investigation, the court can order a welfare report under section 7 of the Children Act 1989, prepared by Cafcass, the local authority, or an independent social worker, before making a final decision.
How does the court decide?
The court decides your case using the welfare checklist in section 1(3) of the Children Act 1989, weighing your child’s individual circumstances rather than applying a fixed formula.
Section 1(1) of the Children Act 1989 makes your child’s welfare the court’s paramount consideration whenever it decides a question about their upbringing. Section 1(3) sets out the welfare checklist: your child’s wishes and feelings in the light of age and understanding, their physical, emotional and educational needs, the likely effect of any change in circumstances, their age, sex, background and relevant characteristics, any harm suffered or risk of harm, and each parent’s capacity to meet their needs. The court weighs the evidence about your family as a whole rather than treating any one factor as decisive.
There is no legal presumption in favour of either parent, and no rule that guarantees an equal division of time. Section 1(2B) of the Children Act 1989 states that a parent’s involvement in a child’s life “does not imply any particular division of a child’s time”, so the court orders shared care only where the facts of your case support it.
| Option | What it involves | Approximate time | Approximate cost |
|---|---|---|---|
| Parenting plan | Written agreement between you and the other parent, with no court involvement | Days to weeks | No court fee |
| Consent order | Agreed arrangements submitted to the court for approval | A few weeks once agreed | Court fee |
| Contested application | The court decides after considering the evidence, possibly with a section 7 report | National mean of 33 weeks | Court fee, plus any legal costs |
| Urgent or interim application | The court considers a short-term order pending further hearings | Depends on the urgency, level of risk and court availability | Court fee, plus any legal costs |
What if the order is broken?
If the other parent breaches a Child Arrangement Order without a reasonable excuse, you can apply to the Family Court to enforce it, and the court has real sanctions available.
Section 11J of the Children Act 1989 allows the court, if satisfied beyond reasonable doubt that a person has failed to comply with the order, to make an enforcement order imposing an unpaid work requirement. Section 11O of the Children Act 1989 lets you claim compensation for any financial loss the breach caused you, such as wasted travel costs, capped at your proven loss. In serious and repeated cases, the court can also commit the non-compliant parent to prison or impose a fine.
The burden is on the parent accused of breaching the order to show, on the balance of probabilities, that they had a reasonable excuse. Under section 11J(3), the court will not make an enforcement order if satisfied that a reasonable excuse existed. For you, this means keeping a clear record of missed handovers or cancelled contact if you are ever asking the court to enforce the order against the other parent.
Note: The terms ‘custody’ and ‘access’ were removed from English law by the Children Act 1989, which replaced it with child arrangements orders dealing with where a child lives and how much time they spend with each parent.
Talk to Purcell Solicitors
If you are trying to work out whether you need a Child Arrangement Order, want help agreeing a parenting plan first, or need to enforce an order that is not being followed, we can talk you through the option that fits your situation. Contact us on 01908 693000 to discuss how we can assist you.
Please note this article does not constitute legal advice.
Further reading:
For more information, please see below.
A Complete Guide To Children’s Law After Separation
What is a the welfare principle?
What is parental responsibility?
Frequently asked questions
How much does a Child Arrangement Order cost?
The current court fee to apply using form C100 is £270. You may be eligible for help with this fee if you receive certain benefits or are on a low income, and any solicitor’s fees you incur are separate from the court fee itself.
How long does it take to get a Child Arrangement Order?
The Ministry of Justice recorded a national average of 35 weeks from application to disposal for private law Children Act cases in October to December 2025. Straightforward or agreed cases can conclude sooner, while contested or complex cases involving a section 7 report often take longer.
Can I get an order quickly in an emergency?
Yes, the court can make an urgent interim order within days, or in genuine emergencies within hours, where there is a real risk to your child’s safety or wellbeing. You will still need to attend a further hearing before any final order is made, unless you and the other parent reach agreement sooner.
Will Cafcass decide where my child lives?
No, Cafcass advises the court but does not make the final decision. Cafcass safeguarding letters and section 7 reports can influence the outcome strongly, but the judge decides what order, if any, best serves your child’s welfare if you as parents are unable to agree.
Does the law favour mothers after separation?
No, the law in England and Wales does not give mothers an automatic preference in child arrangements disputes. The court applies the welfare principle and the welfare checklist to the facts of your child’s case, rather than starting from either parent’s status or sense of entitlement.
How can I get legal advice?
If you need help working out whether to agree a parenting plan, apply for a Child Arrangements Order, or respond to a proposed relocation, we can talk through your position with you and help you choose the next step that fits your family. Contact us on 01908 693000 to discuss how we can help you.
Director – SRA number: 494434
Lisa Buckridge is a Director at Purcell Solicitors and has over 20 years of experience in family law. She qualified in the early 2000s and became a director of the firm in October 2015. She holds accreditation as a Family Mediation Council-accredited Mediator, obtained in 2022, and is one of a small number of lawyer-mediators qualified to carry out Child Inclusive Mediation. She is also a trained collaborative lawyer and hybrid mediator.
Lisa handles the full range of family law matters, including divorce, financial settlements, children proceedings, pre- and post-nuptial agreements, and cohabitation disputes. Her referrals come principally from solicitors, including London-based practices, the local judiciary, and former clients, a pattern that reflects her standing in the field. She has worked on cases involving a terminal health diagnosis and cases in which the opposing party was a specialist family law barrister.
Chambers and Partners ranks Lisa in Band 3 for Family/Matrimonial in the Thames Valley in the UK Guide 2026. She has also been spotlighted specifically for her mediation practice in the Family/Matrimonial Mediators: Thames Valley category. Chambers describes her as “an excellent solicitor who robustly and effectively represents her clients’ interests” and as “incredibly clever” with the ability to “construct cases perfectly”.
Her reported cases include Re R (a child) EWCA Civ 35, in which the Court of Appeal held that a judge had erred by failing to properly evaluate a child’s wishes or to hear evidence from a CAFCASS officer before departing from that officer’s recommendation. She also acted in Scotching and Birch EWHC 844 (Ch), a case concerning burial arrangements and letters of administration following the death of a child; the case has since been cited in several academic papers and journal articles.
Lisa is a member of Resolution and is regulated by the Solicitors Regulation Authority (SRA number: 494434). She can be contacted at lisa@purcellsolicitors.co.uk.
A Complete Guide To Children’s Law After Separation
You do not need to go to court simply because you have separated from your child’s other parent, and in the vast majority of cases, court should be avoided. If you and the other parent can agree on arrangements safely, an informal agreement or parenting plan (and, in some higher-conflict situations, a consent order) can settle where your child lives and how time is split, without a judge deciding for you.
If you are considering making an application to Court, then before most applications, you must first attend a Mediation Information and Assessment Meeting unless an exemption, such as domestic abuse, applies. Court should be considered a last resort unless there are real and genuine reasons to need Court intervention. The President of the Family Division sends a letter to every parent involved in a Court application, and it is useful reading for parents considering such an application to consider whether an alternate process would be better for your child.
Last reviewed: 6th October 2026
Article summary
✓ You do not need a court order simply because you have separated. If you and the other parent can agree on arrangements safely, an informal agreement or a written parenting plan is likely enough.
✓ Under section 1 of the Children Act 1989, when deciding on matters relating to a child’s upbringing or property, the court must place the welfare of the child at the forefront of its decision-making process. The welfare checklist in section 1(3) helps guide the court’s decision.
✓ Parental responsibility continues after separation, so day-to-day care and legal decision-making are not the same question.
✓ A Child Arrangements Order is used when agreement breaks down, and the court must decide where your child lives or how time is spent.
✓ Cafcass carries out safeguarding checks at the start of private law proceedings, and the court may order a section 7 report before making a final decision.
Every week, I sit across from parents who arrive at our office expecting to talk about custody and access and leave having discussed school runs, passport applications, and who tells the teacher what. Separating from your partner is hard enough before you add a child into the equation; every decision, from where they sleep on a Tuesday to whether you can take them abroad for a holiday, now runs through two people who may barely be speaking. My job in that moment is to work out, calmly and quickly, what actually needs deciding, what can wait, and what the law provides. Once we establish these things, the goal is to advise and support you in making arrangements for your children in a non-confrontational, respectful manner. Seeking court orders is the last resort.
This guide briefly answers some of the most common child-related questions clients have following separation or divorce. As always, if you need to talk things through further, please get in touch on 01908 693000.
What is the “welfare of the child is paramount” principle?
What is in the best interests of your child’s welfare is the test the law applies when deciding on matters relating to your child’s upbringing. The court will not make an order unless doing so is better for your child than making no order at all.
Section 1(1) of the Children Act 1989 states that when a court determines any question about a child’s upbringing, “the child’s welfare shall be the court’s paramount consideration”. Section 1(2) adds that delay is likely to prejudice the child’s welfare, and section 1(5) contains the no order principle, which prevents the court from making an order unless making one would be better for the child than making none at all.
Section 1(3) of the Children Act 1989 contains the welfare checklist. The court must consider:
✓ the wishes and feelings of the child concerned (considered in the light of their age and understanding);
✓ the child’s physical, emotional and educational needs;
✓ the likely effect on the child of any change in their circumstances;
✓ the child’s age, sex, background and any characteristics which the court considers relevant;
✓ any harm which the child has suffered or is at risk of suffering;
✓ the capability of each of the child’s parents, and any other person in relation to whom the court considers the question to be relevant, to meet their needs;
✓ the range of powers available to the court under the Children Act 1989 in the proceedings in question.
It is not just the court that will apply the welfare principle. The welfare of the child should be at the forefront of any agreements reached, and advice being received.
Do I still have parental responsibility if I separate or divorce?
Parental responsibility survives separation and divorce, so losing day-to-day care does not remove your legal status as a parent or your right to be consulted about major decisions affecting your child.
Section 3(1) of the Children Act 1989 defines parental responsibility as “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property”. A child’s mother has parental responsibility automatically. A biological father has parental responsibility automatically if he was married to the mother at the time of birth, and an unmarried father can acquire parental responsibility under section 4 of the Children Act 1989 by being registered on the birth certificate as the child’s father, by entering into a parental responsibility agreement with the mother, or by obtaining a court order.
Parental responsibility and living arrangements answer different questions. Your child may live mainly with the other parent, but you should still be consulted about schooling, medical treatment, religion, a change of surname, a holiday, or a relocation (Whether temporary or permanent) and whether in England and Wales or abroad.
If you are an unmarried father who does not yet have parental responsibility, sorting that issue out early often helps avoid later disputes about schools, passports, or medical consent.
What is a Child Arrangement Order?
A Child Arrangement Order is the Family Court order used to decide where your child lives, when your child spends time with a parent or other person, and whether that time is direct, indirect, supervised, or overnight.
Section 8 of the Children Act 1989 gives the court power to make specific children orders, including Child Arrangement Orders. The older language of residence and contact orders and custody and access has been replaced, and the order can say that your child “lives with” one parent, “lives with” both parents, or “spends time with” the parent who is not providing most day-to-day care.
A Child Arrangement Order does not exist to reward one parent or punish the other. The order settles a dispute about your child’s upbringing by applying the welfare checklist to the facts of your family. Equal shared care can be ordered, but no statute gives you an automatic right to a 50/50 arrangement, and section 1(2B) of the Children Act 1989 expressly says that parental involvement does not imply any particular division of the child’s time.
Will I need to go to court?
You only need a court order if you and the other parent cannot agree on arrangements safely, or if a specific issue such as schooling, travel, or safeguarding cannot be resolved without a binding decision and other forms of non-Court dispute resolution, such as Arbitration for a binding outcome, are not appropriate.
Many separated parents agree arrangements without asking the Family Court to intervene. Informal arrangements are common, and in some cases a written parenting plan can be useful to record where your child lives, handover times, school holidays, birthdays, communication, and how future changes will be discussed. Cafcass and government guidance both encourage parents to agree arrangements outside court where possible, because a workable agreement is often quicker and less disruptive for a child than contested proceedings.
A court order becomes more likely where allegations of domestic abuse, coercive control, substance misuse, repeated breaches of agreement, or serious disagreement about residence or contact make informal arrangements unworkable or unsafe.
Which route should I choose?
If you can communicate safely and effectively, a Family Law Solicitor like myself can help you with making a private agreement that can be made legally binding by the court. If you and your ex-partner cannot agree on certain aspects of arrangements for your children, mediation or arbitration may help you reach a resolution.
At Purcell Solicitors, Director and Family Law Solicitor, Lisa Buckridge is an accredited mediator who is also qualified in child-inclusive mediation, which can help with finding out what your son or daughter would like their situation to look like without handing over responsibility for decisions or pressure to the children, but to assist you, as the adults, in unlocking any dispute.
| Route | When it fits | What you gain | What you give up |
|---|---|---|---|
| Informal agreement | You both agree and trust each other to stick to the arrangements | Speed, flexibility and no court fee | No direct enforcement if the arrangements break down |
| Parenting plan | You agree broadly but want the details written down | Clear structure for school terms, holidays, travel and communication | No automatic enforceability |
| Mediation | Communication has broken down, but you are both still able to negotiate | Help from a neutral mediator and an opportunity to settle without a hearing; this can include child-inclusive mediation where appropriate and agreed | No imposed outcome; decisions are made by agreement |
| Consent order | You have reached an agreement and want a binding order | Enforceable terms without a contested final hearing | A court application, fee and some delay |
| Contested Child Arrangements Order | Agreement is impossible or unsafe | A binding decision imposed by the court if an agreement is not reached during proceedings | Delay, cost, evidence gathering and reduced control over the outcome |
Practice Direction 3A of the Family Procedure Rules says that a Mediation Information and Assessment Meeting (MIAM) is an important meeting with an independent mediator that provides information about mediation and other forms of non-court dispute resolution. Under section 10(1) of the Children and Families Act 2014, a MIAM is required before most private law children applications unless a MIAM exemption applies, such as urgency or evidence of domestic abuse. If you are dealing with a high conflict case, a MIAM is often the point where you properly consider whether a negotiated route is still realistic.
What does Cafcass do?
If proceedings for an Order are issued, Cafcass checks for safeguarding issues at the start of your case and may later give the court a fuller welfare assessment through a section 7 report if the dispute cannot be resolved quickly.
Cafcass stands for the Children and Family Court Advisory and Support Service. In private law children cases, Cafcass carries out safeguarding checks with the police and the local authority, speaks briefly to each parent, and sends the court a safeguarding letter before the first hearing. Cafcass’s own guidance states that the safeguarding letter is provided at least three days before the first court hearing and records the outcome of those checks together with any welfare issues raised by you or the other parent.
If your case needs more investigation, the court can order a welfare report under section 7 of the Children Act 1989. A Cafcass officer, local authority social worker, or independent social worker may speak to you, the other parent, your child, and relevant professionals such as the school or GP before making recommendations. Judges are not bound by the recommendation, but a weak response to a Section 7 report can damage your case because the court will expect clear evidence if you say the recommendation is wrong.
Can I move with my child without asking the other parent?
A move within England and Wales may in some circumstances be possible without permission, but a move that disrupts existing arrangements, changes school, or takes your child out of the United Kingdom usually requires agreement from the other parent or a court order first. Advice should be taken before any move takes place to ensure you are acting appropriately.
Section 13 of the Children Act 1989 says that where a Child Arrangements Order regulates with whom a child lives, no one may remove the child from the United Kingdom without the written consent of everyone with parental responsibility or the leave of the court. Section 13(2) creates a limited exception allowing the person named in the order as the person the child lives with to remove the child from the United Kingdom for less than one month. If you are planning an overseas move rather than a holiday, section 13 is the starting point, and informal assumptions are dangerous as they could lead to you being accused of child abduction.
Taking a child out of the United Kingdom without the appropriate consent can amount to a criminal offence under section 1 of the Child Abduction Act 1984. Under section 4 of that Act, the maximum sentence on conviction on indictment is seven years’ imprisonment.
If you are considering relocation, whether inside England and Wales or outside, the lawful route is written consent from everyone with parental responsibility or an application to court, supported by a detailed plan on housing, schooling, finances, and how your child will maintain a relationship with the other parent.
Please note this article does not constitute legal advice.
Further reading:
For more information, please see below.
What is parental responsibility?
What is the welfare principle?
Frequently asked questions
Do I lose parental responsibility if my child lives with the other parent?
No, your child living mainly with the other parent does not remove your parental responsibility. Parental responsibility and living arrangements are separate issues, so you would still need to be consulted about major decisions such as schooling, passports, or medical treatment unless a court has ordered otherwise.
Do I have to go to court to sort out child arrangements?
No, many parents agree on child arrangements without court. Informal arrangements, a parenting plan, mediation, or an application on paper for a consent order in rare circumstances may deal with the issue. Court is usually the last step where agreement is impossible, unsafe, or repeatedly broken.
Can I take my child abroad for a holiday?
Maybe. The answer depends on whether a Child Arrangements Order is already in force and who has parental responsibility. A parent named in the order as the person the child lives with can usually take the child abroad for less than one month, but if this would put you in breach of another aspect of the Order, or for longer trips and contested travel, you need written consent of the other parent or court permission by way of a specific order. Some countries will insist on proof of agreement/order before you are allowed to enter – you should check that country’s entry requirements.
Will Cafcass decide where my child lives?
No, Cafcass advises the court but does not make the final decision. Cafcass safeguarding letters and section 7 reports can influence the outcome strongly, but the judge decides what order, if any, best serves your child’s welfare if you as parents are unable to agree.
Does the law favour mothers after separation?
No, the law in England and Wales does not give mothers an automatic preference in child arrangements disputes. The court applies the welfare principle and the welfare checklist to the facts of your child’s case, rather than starting from either parent’s status or sense of entitlement.
How can I get legal advice?
If you need help working out whether to agree a parenting plan, apply for a Child Arrangements Order, or respond to a proposed relocation, we can talk through your position with you and help you choose the next step that fits your family. Contact us on 01908 693000 to discuss how we can help you.
Director – SRA number: 494434
Lisa Buckridge is a Director at Purcell Solicitors and has over 20 years of experience in family law. She qualified in the early 2000s and became a director of the firm in October 2015. She holds accreditation as a Family Mediation Council-accredited Mediator, obtained in 2022, and is one of a small number of lawyer-mediators qualified to carry out Child Inclusive Mediation. She is also a trained collaborative lawyer and hybrid mediator.
Lisa handles the full range of family law matters, including divorce, financial settlements, children proceedings, pre- and post-nuptial agreements, and cohabitation disputes. Her referrals come principally from solicitors, including London-based practices, the local judiciary, and former clients, a pattern that reflects her standing in the field. She has worked on cases involving a terminal health diagnosis and cases in which the opposing party was a specialist family law barrister.
Chambers and Partners ranks Lisa in Band 3 for Family/Matrimonial in the Thames Valley in the UK Guide 2026. She has also been spotlighted specifically for her mediation practice in the Family/Matrimonial Mediators: Thames Valley category. Chambers describes her as “an excellent solicitor who robustly and effectively represents her clients’ interests” and as “incredibly clever” with the ability to “construct cases perfectly”.
Her reported cases include Re R (a child) EWCA Civ 35, in which the Court of Appeal held that a judge had erred by failing to properly evaluate a child’s wishes or to hear evidence from a CAFCASS officer before departing from that officer’s recommendation. She also acted in Scotching and Birch EWHC 844 (Ch), a case concerning burial arrangements and letters of administration following the death of a child; the case has since been cited in several academic papers and journal articles.
Lisa is a member of Resolution and is regulated by the Solicitors Regulation Authority (SRA number: 494434). She can be contacted at lisa@purcellsolicitors.co.uk.
Is It Safe to Use AI for Child Arrangement Advice?
Section 1(1) of the Children Act 1989 makes a child’s welfare the court’s paramount consideration in every child arrangements (formally known as custody and access) case in England and Wales. An AI tool cannot weigh the welfare test against a family’s real circumstances. They also cannot assess safeguarding risk, coercive control, or how a judge will read the evidence in a specific case. Parents facing a child arrangements dispute should always seek advice from an experienced family law solicitor.
Last reviewed: 21st July 2026
Article summary
✓ Under the Children Act 1989, the child’s welfare is the court’s paramount consideration, and assessing what that can mean in any individual case requires human judgment that AI tools cannot provide.
✓ AI tools cannot spot safeguarding issues, coercive control, domestic abuse, or the emotional pressure points that often shape children cases.
✓ CAFCASS safeguarding work and section 7 reports can influence the outcome of a dispute, so preparation and response need experienced legal advice.
✓ In D (A Child) (Recusal) [2025] EWCA Civ 1570, the Court of Appeal warned that AI-generated submissions had introduced false authorities into proceedings about a child’s welfare.
✓ Purcell Solicitors are a team of experienced family specialists who can provide high quality legal advice regarding child arrangements. They also offer a full mediation service, including
child inclusive mediation through accredited mediator Lisa Buckridge.
✓ AI tools cannot weigh up the welfare test the way a solicitor can, and our child arrangement order solicitors are on hand to give you advice you can actually rely on.
Introduction
Parents often want fast answers after separation and with the cost of living crisis paying for legal advice is an expense many wish to avoid. That helps explain why, in particular given the recent developments in AI, some turn to AI tools for guidance on where a child should live, how contact should work, or whether court is necessary.
The difficulty is that children disputes are fact-sensitive, emotionally charged, and tied to safeguarding. A chatbot can restate legal principles, but it cannot assess risk, test evidence, or judge how a court is likely to view one family’s circumstances. Often, the answer you receive comes down to the prompts are you using,and AI tools have a known positivity bias. This means they provide you with the answer they think you want, rather than look at your situation with impartiality and knowledge of similar family situations. In addition there are considerable privacy concerns with AI. What sensitive information are you uploading about your children and your case which could breach confidentiality of proceedings and in any event gives your sensitive data and information to who knows who.
Despite all the promises and advantages it provides, AI is often unreliable, and specialist advice is still needed in all children’s law matters.
The Law Around Child Arrangements
If separated parents cannot agree on arrangements for a child, the Family Court can make a Child Arrangements Order under section 8 of the Children Act 1989. The order can deal with where a child lives and when the child spends time with another parent or family member.
The court starts with section 1(1) of the Children Act 1989. The child’s welfare is the court’s paramount consideration.
The court then applies the welfare checklist in section 1(3). This includes the child’s wishes and feelings, considered in light of age and understanding, physical and emotional needs, the likely effect of any change, any harm suffered or risk of harm, and each parent’s ability to meet the child’s needs.
No one factor outweights the other. The court weighs the evidence as a whole and decides what outcome best serves that child’s welfare – it is what is in the best interests of the child and where parents cannot agree this then ultimately it falls to someone else to decide -whether a qualified Arbitrator or a Judge. AI cannot and should not replace any human in making those often highly nuanced decisions which are fact and case specific as each child and family are different.
Where AI Falls Short
In my experience, the structure of the welfare checklist can give a false sense of certainty. In practice, two cases that look similar on paper can turn in different directions because the evidence does not land the same way, no two families are the same.
That matters in cases involving domestic abuse, coercive control, parental alienation allegations, mental health concerns, or entrenched communication problems. As solicitors, we can advice on what needs evidence, what may damage a case, and what a judge is likely to treat with caution.
A chatbot or AI tool cannot properly interview a client, read between the lines, or identify when a calmly written account hides fear, pressure, or risk.
CAFCASS and Section 7 Reports
In private law children matters before the Court, CAFCASS carries out safeguarding checks at the start of proceedings. In more complex cases, the court may ask for a section 7 report.
That report, prepared by a professional (CAFCASS, the Local Authority or an independent social worker) involves discussions with the parents, the child, and in some cases the school, GP, or other professionals, and thereafter they provide recommendations to the court. Judges do not just blindly follow those recommendations, but they carry substantial weight.
If a report is inaccurate, incomplete, or based on a misunderstanding, the response has to be careful and evidence-led. That is not a job for a generic AI answer.
What the Court of Appeal Said About AI
In D (A Child) (Recusal) [2025] EWCA Civ 1570, the Court of Appeal considered AI-generated legal submissions in which is transpired contained authorities which did not exist.
The court made clear that anyone relying on case law in children’s proceedings must ensure the authorities are real and accurately cited and highlighted the concerns regarding the growing number of reports of “hallucinations” from AI infecting legal cases either citing cases for saying things they don’t say, or citing cases which just don’t exist at all,
That warning lands hard in child arrangements litigation, where mistakes can waste time, increase costs, and distract the court from the welfare issues that actually matter.
What a Solicitor Adds
A good Family Law Solicitor does more than advise on the law. They test the strength of a proposed case, identify evidential gaps, and tell a client when a point is weak, providing objective advice and will tell you honestly about the merits of your particular case including where the answer may be “I don’t know” which an AI bot is trained not to do- this is why they hallucinate – they will give a false answer rather than no answer.
An experienced practitioner understands the value of non-court dispute resolution and how it can help parents resolve any dispute in a non-confrontational and respectful way. In addition, it will advise you fully regarding all options. They are also alive to where, in some cases, urgent protective action is needed by way of a Court application
That kind of judgment comes from experience with real families and real hearings. It cannot be produced by prompting a chatbot more carefully.In addition you know that the advice you are given by a solicitor in legal practice is protected by confidentiality and legal privilege.
Child Inclusive Mediation
Some disputes can be narrowed without a final hearing. Child-inclusive mediation may help, where it is safe and suitable to hear, through a trained mediator, how the child is experiencing conflict.
Speak to Purcell Solicitors
At Purcell Solicitors, we advise parents in Milton Keynes, Buckinghamshire, Northamptonshire, Bedfordshire, Oxfordshire, and the wider Thames Valley on all aspects of children’s law, including child arrangements. Advice can be given in person or remotely.
Frequently Asked Questions
Do I need a solicitor to apply for a Child Arrangements Order?
No. A parent can make an application without representation. Even so, the process can become difficult quickly when allegations are disputed, CAFCASS is involved, or the evidence is not straightforward.
What does CAFCASS do in private law children cases?
CAFCASS carries out safeguarding checks and, where directed, can prepare a section 7 report for the court and can invite parents in proceedings to attend a free “Planning Together for children” course where appropriate. That work can shape how the case proceeds and what orders the court is asked to consider. They have also got free resources to assist parents outside of Court (such as their parenting plan portal – “our child’s plan”).
Can AI help me draft a parenting plan?
Whilst AI can help produce a rough first draft, you must be careful where and what information you are providing and to whom. Any documents prepared with AI should not be treated as tailored legal advice, and it should not be relied on without checking whether the plan fits the child’s circumstances and the legal position.
What if the other parent breaches a Child Arrangements Order?
The court has enforcement powers, but the right response depends on the facts. Early legal advice helps decide whether enforcement, variation, or another step is most likely to work.
What is child inclusive mediation?
It is a form of mediation in which a specially trained mediator can speak with the child, if appropriate and if the parents and child agrees, so that the child’s wishes and feelings can inform the process between the parents. This is offered where children are 10 or over (although in some cases younger children can be included). The purpose of child inclusive mediation is not to ask the child to make any decisions or to asked specific questions that the parents want asked in order to determine a dispute but simply to give the child, if appropriate, the opportunity of a safe space to have a confidential discussion with a trained mediator as to what their wishes and feelings may be and how they are experiencing the current situation. Anything agreed with the child can then be fed back to the parents to then help the parents make the decisions they need to, in the knowledge of the information fed back. If either parent are seeking to use this process as a way of validating their position or seeking the put the pressure of decisions onto a child it is unlikely to be appropriate.
Director – SRA number: 494434
Lisa Buckridge is a Director at Purcell Solicitors and has over 20 years of experience in family law. She qualified in the early 2000s and became a director of the firm in October 2015. She holds accreditation as a Family Mediation Council-accredited Mediator, obtained in 2022, and is one of a small number of lawyer-mediators qualified to carry out Child Inclusive Mediation. She is also a trained collaborative lawyer and hybrid mediator.
Lisa handles the full range of family law matters, including divorce, financial settlements, children proceedings, pre- and post-nuptial agreements, and cohabitation disputes. Her referrals come principally from solicitors, including London-based practices, the local judiciary, and former clients, a pattern that reflects her standing in the field. She has worked on cases involving a terminal health diagnosis and cases in which the opposing party was a specialist family law barrister.
Chambers and Partners ranks Lisa in Band 3 for Family/Matrimonial in the Thames Valley in the UK Guide 2026. She has also been spotlighted specifically for her mediation practice in the Family/Matrimonial Mediators: Thames Valley category. Chambers describes her as “an excellent solicitor who robustly and effectively represents her clients’ interests” and as “incredibly clever” with the ability to “construct cases perfectly”.
Her reported cases include Re R (a child) EWCA Civ 35, in which the Court of Appeal held that a judge had erred by failing to properly evaluate a child’s wishes or to hear evidence from a CAFCASS officer before departing from that officer’s recommendation. She also acted in Scotching and Birch EWHC 844 (Ch), a case concerning burial arrangements and letters of administration following the death of a child; the case has since been cited in several academic papers and journal articles.
Lisa is a member of Resolution and is regulated by the Solicitors Regulation Authority (SRA number: 494434). She can be contacted at lisa@purcellsolicitors.co.uk.
Who Do Children Live with After Divorce?
Article Summary
- ✓There is no automatic rule in England and Wales giving either parent priority over where children live; the only governing principle is the child’s welfare.
- ✓The Children Act 1989 abolished the language of “custody” and introduced Child Arrangements Orders, which can name one or both parents, and can set out who the child lives with; who the child spends time with and when and how that time takes place.
- ✓Courts apply the seven-factor welfare checklist in section 1(3) of the Children Act 1989, weighing the child’s wishes and feelings, the child’s physical and emotional needs, any risk of harm, and each parent’s capabilities.
- ✓The wishes and feelings of the children are one of the factors considered – generally speaking the older the children are the more weight will be placed on their wishes and their views will be weighed against their age and maturity. Decisions for children rest with parents (or the Court or an Arbitrator if the parents disagree).
- ✓An Order that provides who the children are to live with may continue until they are 18 but a spends time with/contact provision will generally cease at age 16 unless the Order specifically provides for these to continue, which it will only do if the circumstances are exceptional. A Court will not make any new Orders for contact/lives with when the children are over 16 (save for varying or discharging an existing order) unless the circumstances are exceptional.
- ✓Before any court application about children can be issued, most applicants must first attend a Mediation Information and Assessment Meeting (MIAM), and Courts now actively direct parties towards non-court resolution processes throughout proceedings.
- ✓It is important that Court should be considered a measure of last resort and proper consideration given as to whether alternative methods to resolve the dispute (such as mediation, arbirtration or collaborative Law) would be better. In serious cases involving domestic abuse or safeguarding concerns an application to Court may remain the most appropriate action and immediate advice should be taken at the earliest opportunity to ensure children are safeguarded if there are any significant welfare concerns
Where children will live after a separation is often the question that weighs most heavily on both parents. English law gives neither parent automatic priority; the answer turns on what arrangements will best serve each child’s welfare. That has been the governing principle since the Children Act 1989 came into force in October 1991, and it has not changed.
For most separating families, the question is settled without a court ever being involved. Parents who can reach a workable arrangement between themselves are free to do so, and the law encourages them to. Where agreement proves impossible, Purcell Solicitors’ child law team can advise on the options available, from mediation, other forms of non court dispute resolution, through to court proceedings if that becomes unavoidable.
There are around 2.4 million separated families in Great Britain, involving approximately 3.8 million children. Separation is not unusual. For those going through it, knowing how the law actually works, rather than what popular myth suggests, can make a real difference to the decisions parents make and the outcomes they achieve.
Child Arrangements Law
Before 1989, courts hearing disputes about children on divorce were asked to determine “custody” and “access.” The language carried a winner-and-loser logic that entrenched conflict rather than resolved it. The Children Act 1989 replaced that framework entirely. Parental rights gave way to parental responsibility, and a single paramount principle was established: the child’s welfare is the court’s paramount consideration. Courts could no longer award a parent “custody” as if it were a prize.
In my experience, clients often confuse parental responsibility with the child’s living situation. They are not the same. Mothers have parental responsibility automatically. Married fathers, and fathers registered on the birth certificate for births on or after 1 December 2003, also have it. However, an unmarried father who is not on the register can acquire it by agreement with the mother, by marrying her, or by applying to the court. Having parental responsibility gives a parent the right and duty to participate in decisions about a child’s upbringing; it says nothing, on its own, about where the child lives or how often they spend time with their parent.
Child Arrangements Orders
The Children and Families Act 2014 renamed the orders a court can make about children’s living arrangements. What were once residence and contact orders became Child Arrangements Orders, governed by section 8 of the Children Act 1989. An order can specify that a child “lives with” one parent or both, and separately that the child “spends time with” the other. Term-time arrangements, holidays, special occasions, and any other aspect of routine can all be included. There is no standard template; every order is built around the specific child.
A parent named in a “lives with” order may remove the child from the United Kingdom for up to one month without the other parent’s consent, under section 13(2) of the Children Act 1989 however care should be taken to ensure that this does not result in being in breach of any other arrangements (such as a Court Order for contact arrangements with the other parent) and it remains best to ensure the other parent is aware of any planned holidays in advance so there is time to resolve any dispute if there is to be one. Longer absences require either written agreement from everyone with parental responsibility or a court order permitting the trip failing which it could lead to serious consequences in particular if considering international travel. Breaching a Child Arrangements Order is a serious matter: the court can vary the arrangements, impose an unpaid work requirement, order financial compensation for losses caused, or, in persistent cases, commit the defaulting parent to prison.
The Welfare Checklist
When a court makes any decision about a child’s upbringing, section 1(3) of the Children Act 1989 requires it to consider seven factors. The court does not treat these as a scoring exercise; it weighs them together against the particular child’s circumstances. The factors cover:
- ✓ The ascertainable wishes and feelings of the child, considered in light of their age and understanding;
- ✓ Their physical, emotional and educational needs;
- ✓ The likely effect on them of any change in their circumstances;
- ✓ Their age, sex, background and any other relevant characteristics;
- ✓ Any harm the child has suffered or is at risk of suffering;
- ✓ How capable each parent is of meeting the child’s needs;
- ✓ The range of powers available to the court under the Act.
Section 1(1) of the Act makes welfare of the child the paramount consideration, not one factor among several. Courts refer to this as the paramountcy principle. No other consideration, including what either parent wants or considers fair, can override what the court determines is best for the child.
Recent Judicial Developments
A recent example is Mother v Father [2024] EWFC 252 (B), in which four children aged nine to fourteen had refused all contact with their mother over an extended period. The father was named in the “lives with” order. The judge found that compelling direct contact against the children’s consistent and clearly expressed views would damage them and undermine any prospect of rebuilding the relationship. Indirect contact was ordered as the starting point, supported by therapeutic work. The case is a strong example of the court treating children’s voices as a central welfare factor but does not hand children a veto over contact arrangements as the courts primary concern remains the chldren’s welfare, but it confirms that courts treat authentically held, consistent views with real seriousness, particularly where the children are old enough to understand what they are saying and in this case, weighing against the other circumstances, resulted in the decision against direct contact – but the provision of indirect contact, alongside therapeutic work was to ensure there was a “bridge towards a relationship” should the children wish to resume this.
Shared “lives with” orders, where children are said to live with both parents, in varying arrangements from exactly equal to more time with one parent than the other, are now a routine feature of family court practice. Case law from the Court of Appeal and the Family Division has confirmed that they can be made even where the time split is unequal, where parents are in active conflict, or where one parent opposes the arrangement. The test is always and only welfare of the child. An equal division of time that genuinely benefits the child could be appropriate; one imposed for symmetry’s sake only, where the child would suffer from the instability, is not.
From April 2024, amendments to the Family Procedure Rules strengthened the court’s powers to direct parties towards non-court resolution. Courts can now adjourn proceedings and require parties to attempt mediation or another non-court process, even against a party’s wishes. At each hearing, both parties must confirm their position on non-court options in writing. Average waiting times from application to final order in Court proceedings stood at around 74 weeks in early 2025, which concentrates the mind considerably when mediation or Arbiration can produce a result in a matter of weeks..
Practical Guidance for Separating Parents
The starting point is agreement. If both parents can agree on arrangements that prioritise the children’s stability, they are free to do so without any court involvement. Many families manage this informally; others find it useful to record their agreements in a written parenting plan. A parenting plan is not a court order and cannot be enforced as one, but it provides both parents with a shared reference point and reduces the scope for later disputes about what was originally intended and can often be produced in Court later if required to demonstrate intentions. There are lots of helpful resources for parents to help resolve matters outside of Court on the CAFCASS and Resolution website and also on the government website [www.gov.uk](https://www.gov.uk) “Making child arrangements if you divorce or separate”.
Where direct negotiation is difficult, Purcell Solicitors’ non-court dispute resolution services include family mediation, collaborative law, and family arbitration. Mediation is between the parents. In addition Child Inclusive Mediation allows children, generally those aged ten or over, to share their own views with a mediator directly; those views are then fed back to the parents to inform their discussions. Cruicially in child inclusive mediation children are not asked to make any decisions or indeed asked to give any preferences -it simply an opportunity, if appropriat, for children to feel able to express how they are currently feeling and thinking, in order for the parents to then consider and make decisions as to the arrangements. If Child Inclusive Mediation is being considered as a way of a parent getting a child to decide what the arrangements should be or the child to resolve a dispute it is very unlikely to be appropriate.
Before any court application about children can be issued, most applicants must attend a Mediation Information and Assessment Meeting (MIAM) under section 10 of the Children and Families Act 2014. Exemptions apply where domestic abuse, urgency, or certain safeguarding concerns are present.
For those who do reach court, several points are worth knowing:
- ✓ CAFCASS (the Children and Family Court Advisory and Support Service) conducts safeguarding checks at the outset of all proceedings and reports to the court on any domestic abuse or welfare concerns that require investigation.
- ✓ If proceedings continue a CAFCASS officer may be ordered to meet the child in an age-appropriate way to gather their views and provide a Section 7 report. Younger children often express themselves through drawing or play rather than conversation.
- ✓ The court can order expert evidence from an independent social worker or a child psychologist where the complexity of the case requires it.
- ✓ Having the children currently living with you is not a guarantee of any particular outcome. Courts assess welfare on the evidence as it stands at the time of the hearing, looking forward rather than back.
- ✓ Section 91(14) of the Children Act 1989 allows the court to bar further applications for a period without leave where a pattern of repeated litigation is itself harming the child.
Policy and Future Direction
The family courts are severely stretched, and one thing I know for sure is that protracted litigation concerning child-related legal disputes causes harm of its own. The April 2024 rule changes reflect a deliberate decision to reduce the number of child arrangement cases resolved by contested final hearing. Courts have wider powers to adjourn and redirect, judges are expected to raise non-court options at every stage, and the MIAM requirement has been tightened. Across the profession, the expectation is that court proceedings should be a genuine last resort, not a default.
Statistics published in 2024 show that lone fathers accounted for 16.7% of lone-parent families, up from 13.1% in 2014. That shift reflects a broader change in how families organise themselves after separation, with shared care becoming more common in practice. The courts have long held that a meaningful relationship with both parents is ordinarily in a child’s interests. What is changing is how often that principle translates into the arrangements families actually reach before a judge ever has to decide and the increased steer for parents, where safe, to agree those arrangements themselves.
There is no automatic rule on where a child should live after divorce; our child law solicitors can talk you through how these decisions are actually made.
Frequently Asked Questions
Do mothers automatically get the children?
No, English law gives mothers no automatic priority over fathers in separation cases. The belief that courts favour mothers dates from practice before the Children Act 1989 came into force, when courts did tend, as a matter of culture rather than law, to place younger children with their mothers unless there was a compelling reason not to. Since 1991, both parents have been on the same legal footing. The outcome depends on what the court finds will best serve the child’s welfare, as assessed in that particular case. A mother who cannot meet her children’s needs will not be awarded a “lives with” order by virtue of being their mother, and the same applies to fathers.
What is a Child Arrangements Order?
A Child Arrangements Order is a court order under section 8 of the Children Act 1989 that sets out with whom a child is to live, spend time, or otherwise have contact, and when. It replaced residence and contact orders after the Children and Families Act 2014 took effect in April 2014. A child might be ordered to live primarily with one parent while spending regular time with the other, or the order might reflect a genuinely shared arrangement across two homes. Both elements can appear in the same order. Each order is tailored to the child; there is no off-the-shelf version.
What does the court consider when deciding where children live?
Courts apply the welfare checklist in section 1(3) of the Children Act 1989, covering the child’s wishes and feelings assessed against their age and maturity, their physical, emotional and educational needs, the effect of any change in circumstances, their individual characteristics, any risk of harm, and how capable each parent is of meeting their needs. CAFCASS provides a safeguarding check in all proceedings. In complex cases, a fuller welfare report may be ordered. The analysis focuses on what will benefit the child, not on what either parent considers a fair outcome.
Can children choose which parent to live with?
Children do not have a legal right to choose where they live before they turn 16, at which point the Children Act 1989 generally permits them to decide for themselves unless there are exceptional circumstances. Before that age, a child’s views are one welfare factor among several, and courts give those views increasing weight as the child grows older and mature. An older child’s consistently held views will usually carry real weight in proceedings, though the court still considers them alongside all other welfare factors. Courts are alert to the difference between views that are genuinely the child’s own and views that reflect parental pressure; the latter are given correspondingly less weight.
What happens if we cannot agree on arrangements?
If parents cannot reach an agreement through either direct negoations, mediation or other means, they could consider appointing a specialist Child Law Family Arbitrator to resolve the dispute between them through Arbitration which would result in a binding decision which the parents can then apply to have turned into a Court Order by consent.
If Arbitration is not agreed, or otherwise not appropriate, then either parent could apply to Court.
Prior to an application to Court the Applicant must attend a Mediation Information and Assessment Meeting (MIAM) before issuing a court application, unless an exemption applies. Many disputes are resolved through mediation or family arbitration without the case ever going before a judge. As above family arbitration can produce a binding decision far faster than the family court. Both parents have to agree to Arbitrate and they choose the Arbitrator (or ask for one to be appointed).
If court proceedings are issued, either parent applies using Form C100. In Court proceedings CAFCASS will be involved from the start, the court will manage a timetable, and the Judge will make a final order based on the child’s welfare if the parents are unable to agree themselves during the proceedings. The parties are encouraged to reach agreement throughout, even after proceedings are issued.
A Court order is legally binding on both parents once made.
Director – SRA number: 494434
Lisa Buckridge is a Director at Purcell Solicitors and has over 20 years of experience in family law. She qualified in the early 2000s and became a director of the firm in October 2015. She holds accreditation as a Family Mediation Council-accredited Mediator, obtained in 2022, and is one of a small number of lawyer-mediators qualified to carry out Child Inclusive Mediation. She is also a trained collaborative lawyer and hybrid mediator.
Lisa handles the full range of family law matters, including divorce, financial settlements, children proceedings, pre- and post-nuptial agreements, and cohabitation disputes. Her referrals come principally from solicitors, including London-based practices, the local judiciary, and former clients, a pattern that reflects her standing in the field. She has worked on cases involving a terminal health diagnosis and cases in which the opposing party was a specialist family law barrister.
Chambers and Partners ranks Lisa in Band 3 for Family/Matrimonial in the Thames Valley in the UK Guide 2026. She has also been spotlighted specifically for her mediation practice in the Family/Matrimonial Mediators: Thames Valley category. Chambers describes her as “an excellent solicitor who robustly and effectively represents her clients’ interests” and as “incredibly clever” with the ability to “construct cases perfectly”.
Her reported cases include Re R (a child) EWCA Civ 35, in which the Court of Appeal held that a judge had erred by failing to properly evaluate a child’s wishes or to hear evidence from a CAFCASS officer before departing from that officer’s recommendation. She also acted in Scotching and Birch EWHC 844 (Ch), a case concerning burial arrangements and letters of administration following the death of a child; the case has since been cited in several academic papers and journal articles.
Lisa is a member of Resolution and is regulated by the Solicitors Regulation Authority (SRA number: 494434). She can be contacted at lisa@purcellsolicitors.co.uk.
Neurodivergency in Family law
Legal Services
Around 15% of the population are neurodivergent and have additional needs.
In family law cases there has been a positive change in recent months which has allowed those with neurodiversity to have an equal access to justice in family law matters and overcome barriers which may prevent fair justice taking place.
On 30th January 2025, the Family Justice Council published Guidance on Neurodiversity in the Family Justice System for Practitioners.
What is neurodiversity
Neurodivergence is the term used for when someone’s brain processes, learns, and/or behaves differently from what is considered ‘neurotypical’. ‘Neurotypical’ refers to a person with neurological development and functioning that are of a typical standard according to social norms.
Understanding Neurodiversity has had a considerable effect on society by shifting the way we value the differences in how people think, learn, and interact with the world. It challenges traditional norms by promoting the idea that neurological differences, such as autism, ADHD, and dyslexia, are natural variations rather than deficits that need to be ‘fixed’ or ‘cured’.
Neurodiversity effects the way that some people are able to present information, engage and process information. These people are classified as ‘neurodivergent’.
Issues in family law
Experiencing any type of litigation without the right support in place can create challenges and in particular those with neurodivergence may have found themselves at a disadvantage as their particular neurodivergent may impact on their ability to fully participate in a legal process or be treated fairly.
Examples of common problems faced by the neurodivergent Court/litigation include:
- Communication differences – misunderstanding questions, sensory overload or shutdowns.
- Credibility and Stereotyping – misjudgement of behaviour or biased opinions.
- Understanding legal proceedings and documents – difficulty processing and retaining complex information.
- Lack of training for professionals – lack of understanding may result in a misinterpretation of behaviour causing inequity in outcomes
- Access to justice – the Court system being rigid and unable to accommodate particular needs which would improve an individual’s experience, and ability to participate e.g. regular breaks, communication aids, sensory equipment etc.
The introduction of the guidance and how we can help
The growing awareness of neurodiversity helps to break down certain challenges and foster a culture that values diverse perspectives, creativity, and innovation. The published guidance encourages practitioners and the Court in family law cases to have a greater insight into those with neurodiversity and understand how best to support those individuals, enabling them to have greater access to justice.
As practitioners it is our role to keep up to date with all training and adapt to ensure all clients get the right service and support when going through a family law process . At Purcell we ensure that we:-
- Understand each client’s needs – Being able to tailor our advice and accommodate each client’s needs is at the forefront of our minds. It is important that there is early identification of neurodivergence or any vulnerabilities from the outset so that we can best assist you.
- Communicate effectively – We understand that material information may need to be presented in different formats to enhance understanding. At Purcell Solicitors we want to work in a way that best meets our client’s needs whether that is communicating best by telephone, in person or emails. We also understand that certain phrases and terminologies can sometimes be confusing for our clients, and we always try to ensure that legal jargon is minimised so that there are no barriers to understanding.
- Focus on Non-Court Dispute Resolution (NCDR) where appropriate – We firmly believe that Court should always be the last resort. At Purcell Solicitors we actively promote methods of NCDR as these processes enable a level of flexibility that the Court cannot always facilitate. Methods of NCDR include mediation, collaborative law, private financial remedy hearings and Arbitration. The Courts are overstretched and cannot always allocate the time that is needed in a case. A NCDR process better allows clients to take a more active role in their case and provides the ability to tailor more easily issues such the environment and timings to enable individuals to fully participate in proceedings.
- Be proactive – We understand that NCDR is not always an option and sometimes matters need to be resolved through a Court process. Applications can be made to the Court if required for reasonable adjustments to be made in order to meet an individual’s needs. This could be a request to adjust the structure of the Court timetable or a request for more frequent breaks during a Court hearing or giving evidence or to allow for a longer timetable to ensure compliance and full participation.
- Keep an open mind – We encourage our clients to be open and honest with us so that we can best understand any vulnerabilities or issues that they may be facing. We will always use our best endeavours to support the needs of our clients and facilitate a safe space where matters can be resolved at a pace that works for them wherever possible.
Disclaimer: Please note that this page is for guidance only and does not replace legal advice. It is correct with the law at the time of publication but please be aware that laws may change over time. This article contains general legal information but should not be relied upon as legal advice. Please seek professional legal advice about your specific situation – contact us for dedicated help for you.
Our Latest News
Director – SRA number: 494434
Lisa Buckridge is a Director at Purcell Solicitors and has over 20 years of experience in family law. She qualified in the early 2000s and became a director of the firm in October 2015. She holds accreditation as a Family Mediation Council-accredited Mediator, obtained in 2022, and is one of a small number of lawyer-mediators qualified to carry out Child Inclusive Mediation. She is also a trained collaborative lawyer and hybrid mediator.
Lisa handles the full range of family law matters, including divorce, financial settlements, children proceedings, pre- and post-nuptial agreements, and cohabitation disputes. Her referrals come principally from solicitors, including London-based practices, the local judiciary, and former clients, a pattern that reflects her standing in the field. She has worked on cases involving a terminal health diagnosis and cases in which the opposing party was a specialist family law barrister.
Chambers and Partners ranks Lisa in Band 3 for Family/Matrimonial in the Thames Valley in the UK Guide 2026. She has also been spotlighted specifically for her mediation practice in the Family/Matrimonial Mediators: Thames Valley category. Chambers describes her as “an excellent solicitor who robustly and effectively represents her clients’ interests” and as “incredibly clever” with the ability to “construct cases perfectly”.
Her reported cases include Re R (a child) EWCA Civ 35, in which the Court of Appeal held that a judge had erred by failing to properly evaluate a child’s wishes or to hear evidence from a CAFCASS officer before departing from that officer’s recommendation. She also acted in Scotching and Birch EWHC 844 (Ch), a case concerning burial arrangements and letters of administration following the death of a child; the case has since been cited in several academic papers and journal articles.
Lisa is a member of Resolution and is regulated by the Solicitors Regulation Authority (SRA number: 494434). She can be contacted at lisa@purcellsolicitors.co.uk.
Planning for the family home in a divorce with children
Separation & Divorce
Updated: 21st October 2026
| In brief: If you divorce with children, the family home may be sold, transferred to one of you, retained in joint names for a limited period or made subject to a deferred sale. The outcome depends on the available equity, any other assets which you or your spouse own and whether you can afford two homes. Your children’s housing needs and the wider financial settlement also shape the outcome. This guide explains the practical points to consider in England and Wales before you agree to a sale or transfer. |
Deciding what happens to the family home following a divorce is one of the most challenging parts of negotiating the financial settlement. You may want to preserve your children’s familiar routines while ensuring that both you and your ex-spouse have suitable accommodation. In this article, I set out the options for dividing the family home in a divorce if you have children.
If you would like advice on your own situation, our family home and divorce solicitors can help. Book a free 30 minute consultation.
What Information do I need to gather regarding the family home?
Start by getting an up-to-date market valuation and a current mortgage redemption figure. Check whether there are any early repayment charges and estimate the likely costs of selling. Once you subtract those amounts, you’ll have an estimate of the net equity. This figure can help you explore your options, although it won’t determine how you divide the equity.
Next, look at what each household can comfortably afford. Set out each household’s income and regular commitments, then add likely housing costs and borrowing capacity. If one of you hopes to keep the home, it is important that you speak with a mortgage adviser about whether you can transfer the mortgage into one party’s name or replace the mortgage. Your lender will need to agree before the other borrower can be released from the mortgage.
The home is part of the wider financial settlement, so it’s also important to gather current details about your other assets and liabilities. Pensions and savings may affect whether one person can keep the property, while debts and future income may also change how much each of you can borrow.
Your children’s arrangements should also be reflected in the housing budgets. Think about where they’ll stay and how each home can support family life. School journeys and any additional needs may affect the location or space you’ll need. It’s also important to work out the ongoing costs of the existing home, including the mortgage, council tax, insurance and repairs.
What are the options for dividing the family home in a divorce?
The court must consider all the factors under section 25 of the Matrimonial Causes Act 1973. First consideration is given to the welfare of any child of the family under 18. The court also considers each person’s resources and needs. The family’s standard of living and each person’s contributions also form part of the assessment. Every family is different; therefore, it is crucial to involve an experienced Divorce Law Solicitor as soon as possible so the particular needs of you and your children are assessed and factored into the final divorce financial settlement. Whatever you decide about the house becomes part of your overall settlement. Our guide to divorce financial settlements explains how assets are divided.
Below are the main options for dividing the family home in a divorce with children:
Selling the home
A sale may be a good option if neither of you can afford the property alone, or if you both need capital to secure new accommodation. Start by estimating the likely net proceeds and checking whether they could support two realistic housing plans.
You’ll need to agree on how the property will be valued and marketed. It also helps to set out practical arrangements for the mortgage and council tax, and decide who will be responsible for insurance and any necessary repairs until completion. The proceeds will form part of your overall financial settlement, and how they are divided will depend on your circumstances. The division of the net equity is not necessarily an equal one.
Transferring the home
A transfer means that one person keeps the home. This could be on the basis that the other receives a payment or equivalent value elsewhere in the settlement, or an outright transfer without payment. It depends on the overall financial settlement to achieve a fair outcome for both parties taking into account the section 25 factors. To calculate the available equity, start with an agreed property value and mortgage balance. The person keeping the home will generally need to meet the lender’s affordability checks so that the other can be released from their mortgage liability.
Transferring ownership does not automatically release the outgoing person from the mortgage but is often a condition for an agreement to transfer the property. The lender must agree to remove them as a borrower, which may mean arranging a remortgage. The transfer and any balancing payment should be agreed together as part of the overall financial settlement.
Deferring the sale
A deferred sale enables one spouse and the children to stay in the home until a specified date or event when the house is then sold (a trigger for a sale would usually be the earlier of the occupying spouse remarrying, dying, when the youngest child turns 18 or leaves full-time education or another pre-agreed date).
The terms of the deferral should clearly identify what triggers the sale and who will cover property costs and mortgage payments. They should also explain how repairs will be approved and how the proceeds will eventually be divided.
Remaining joint owners
Temporary joint ownership can give you some time to plan a later sale or transfer. To make the arrangement work smoothly, set a clear end date and agree on how you will handle the property’s costs. It’s also worth considering how ongoing mortgage liability could affect each person’s ability to borrow for another home.
Under the mortgage terms, each borrower remains responsible for the full joint mortgage so it is important to establish how the mortgage will be paid and the consequences for non-payment . A missed payment will affect both parties’ credit records and make future borrowing more difficult. To help avoid confusion, your agreement should clearly state who will make each payment and what will happen if the sale or remortgage can’t go ahead.
Shared care and housing budgets
When children spend substantial time with each parent, both homes may need to offer suitable space and be close enough to school. Supporting two homes can put greater pressure on the family’s income and capital, so it may help to prepare a separate budget for each household.
Consider whether keeping the existing home would leave enough money for the other parent to find suitable accommodation. The court considers the children’s welfare as the first consideration in the overall financial picture. A shared-care arrangement does not automatically entitle either parent to keep the family home or to a larger share of the sale proceeds. Each case is dependent on it’s own factors and early legal advice is essential before any agreement is reached.
For a fuller explanation of how the court decides, see our guide to who gets the family home in a divorce with children.
Concluding comments
Choosing the right arrangement for the family home can help support your children’s housing needs while staying affordable over time. Carefully considering what each of you can realistically afford can help you decide whether keeping the property is workable and understand how a sale might affect both households. Before committing to an arrangement, you should obtain advice on how it fits into your wider financial settlement and how to make the agreed terms legally binding.
What happens to the family home is often only part of the financial settlement on divorce. It is important that all financial matters are considered at the same time and a legally binding agreement obtained so that both parties are secure in having an enforceable agreement.
How we can help
Purcell Solicitors advises clients in Milton Keynes, Northamptonshire, Bedfordshire, Hertfordshire and nationally on divorce financial settlements involving the family home. Our family home and divorce advice can help you compare the available options and record the chosen arrangement properly. Call 01908 693000 or book a free 30 minute consultation to talk through your options.
Frequently asked questions
Does the parent the children live with keep the family home?
Neither parent automatically gets to keep the family home just because the children live with them. In England and Wales, the court gives first consideration to the welfare of any child under 18, while also assessing the family’s financial circumstances. The outcome depends on how the available resources can best meet your children’s housing needs and both parents’ needs.
Is the family home always divided 50/50 when you divorce?
The family home is not automatically divided 50/50 in a divorce, even when you have children. An equal division may work well if it meets both households’ needs. If one parent needs more capital to provide suitable accommodation for the children, an unequal division may be appropriate. Your share of the equity should therefore be considered as part of the overall financial settlement.
Can I stay in the family home until my children turn 18?
You may be able to stay in the family home under an agreement or court order that postpones its sale. A deferred-sale arrangement, sometimes called a Mesher order, can delay the sale until a specified event, such as your youngest child turning 18 or completing full-time education. This arrangement is not automatic, so its suitability will depend on affordability and both parents’ housing needs.
Do I still have to pay the mortgage if I move out?
If you are named on a joint mortgage, moving out does not end your responsibility to the lender, and you remain liable for the full debt. Even if you agree that your ex-spouse will make the payments, you remain liable unless the lender agrees to release you or the mortgage is repaid. You should agree how payments will be covered and contact the lender promptly if you think you may have difficulty keeping up with them.
Do we need a consent order if we agree what happens to the house?
To make your agreed divorce financial settlement legally binding, you need to ask the court to approve a consent order. It should set out the arrangements for the family home, including how its equity will be divided and any conditions for a later sale. The judge will consider whether the agreement is fair, and you can usually obtain approval without a court hearing.
Disclaimer: Please note that this page is for guidance only and does not replace legal advice. It is correct with the law at the time of publication but please be aware that laws may change over time. This article contains general legal information but should not be relied upon as legal advice. Please seek professional legal advice about your specific situation – contact us for dedicated help for you.
Our Latest News
Director – SRA number: 494434
Lisa Buckridge is a Director at Purcell Solicitors and has over 20 years of experience in family law. She qualified in the early 2000s and became a director of the firm in October 2015. She holds accreditation as a Family Mediation Council-accredited Mediator, obtained in 2022, and is one of a small number of lawyer-mediators qualified to carry out Child Inclusive Mediation. She is also a trained collaborative lawyer and hybrid mediator.
Lisa handles the full range of family law matters, including divorce, financial settlements, children proceedings, pre- and post-nuptial agreements, and cohabitation disputes. Her referrals come principally from solicitors, including London-based practices, the local judiciary, and former clients, a pattern that reflects her standing in the field. She has worked on cases involving a terminal health diagnosis and cases in which the opposing party was a specialist family law barrister.
Chambers and Partners ranks Lisa in Band 3 for Family/Matrimonial in the Thames Valley in the UK Guide 2026. She has also been spotlighted specifically for her mediation practice in the Family/Matrimonial Mediators: Thames Valley category. Chambers describes her as “an excellent solicitor who robustly and effectively represents her clients’ interests” and as “incredibly clever” with the ability to “construct cases perfectly”.
Her reported cases include Re R (a child) EWCA Civ 35, in which the Court of Appeal held that a judge had erred by failing to properly evaluate a child’s wishes or to hear evidence from a CAFCASS officer before departing from that officer’s recommendation. She also acted in Scotching and Birch EWHC 844 (Ch), a case concerning burial arrangements and letters of administration following the death of a child; the case has since been cited in several academic papers and journal articles.
Lisa is a member of Resolution and is regulated by the Solicitors Regulation Authority (SRA number: 494434). She can be contacted at lisa@purcellsolicitors.co.uk.
Children In Divorce: Holiday Arrangements & Travelling Abroad
Separation & Divorce
As family solicitors, we know all too well the stresses travelling abroad with your children when you are divorced can bring.
School holidays can be a stressful time for parents – juggling additional childcare responsibilities with work; changes to the daily routine with children being home and trying to find activities that fill their time but don’t cost the earth.
Where parents are separated this can be made even more difficult trying to ensure each has quality time with the children. The need for cooperation, planning and good communication will be ever more important.
Emotions and financial realities also often come into play with one parent not being able to afford to take the children abroad when the other can; the resentment of having to fit around the other parent’s work/holiday restrictions or children from another relationship; feelings of loss from the past family holidays when together; the guilt or anger in saying no and being blamed for denying the children opportunities etc. All of these factors, and more, can lead to a boiling point of conflict which ultimately only results in the children being caught in the middle.
Do you need the other parents permission?
Most parents won’t have Court Orders to regulate the arrangements and the key to reducing tension and disagreement is to plan ahead with good communication. A schedule that works well for the family during term time is likely to need revision and agreement during holiday periods to enable the children to have holiday time with each parent. If there is going to be a disagreement the sooner you know the sooner you can resolve it for the benefit of the children.
If you are hoping to travel abroad with the children, there are additional considerations. Many parents are unaware that to travel abroad with their children you need the consent of anyone else who has Parental responsibility (typically this is the other parent). If you do not have that permission then you could find yourself facing criminal charges for child abduction. If there is a “Lives with” Order in place that confirms the children live with you then technically you do not require the other parent’s consent to travel abroad for a period of up to 28 days however – you must ensure this does not impact upon the time the children spend with the other parent if there is a Court Order as otherwise, you would be in breach of that Order.
Don’t make the mistake of just going ahead and booking a holiday abroad without consultation with the other parent and making promises to the children about arrangements without having a clear, and agreed, plan as to how the holidays will work in reality.
It is normally advised that even if you believe you can travel without permission (either due to a “lives with Order” or if there are no Orders in place and the other parent does not have parental responsibility) you should still communicate your plans for travel to the other parent so they know where their children will be. By doing this, and remaining respectful and considerate of the other parent, it can work wonders to prevent undermining of successful post-separation parenting by unilateral decision making.
Things to consider when taking a child on holiday after divorce
At Purcell Solicitors we are very experienced in assisting parents in resolving holiday issues – whether by providing legal advice or mediation services. We recommend keeping in mind these key issues when considering holiday arrangements:
- Organisation – being organised well in advance will help stop additional stress and worry, and plan dates, activities and financial implications.
- Communication – communicate, where possible, directly with the other parent and not through the children. Put aside personal feelings and concentrate on putting the children, and their needs, first.
- Information – where you wish to take the children away on holiday it is helpful to provide additional information about your potential trip such as where you intend to go, details of proposed travel time and plans, who you are going with and a general outline of what you intend to do. This can often assist the other parent in ensuring the child is the focus and what the benefits of the holiday planned would be for the children (as it remains about what is in the children’s best interests). The other parent should also have contact details in case of emergency.
- Flexibility – be respectful of the other parent, and recognise that there may be outside pressures (such as work) which limit the ability of one parent to offer many options for how the holidays should be shared. Whilst there is no obligation to “swap days” suggesting alternatives for the other parent to see the children can often eliminate potential issues that can arise from a request for extended time with the children. Recognise that both parents will want to spend quality time with the children over the extended breaks and that cooperation and compromise are necessary tools.
- Questioning – In some cases, the children could be asked questions by immigration officials so, depending on their age and maturity, you may wish to explain that this would be nothing to worry about and they should provide honest answers.
- Documentation – not only will you need to consider the obvious issue if considering a holiday abroad or when and how passports are handed over but you could well be asked by airport officials for evidence of the permission to travel with the children and even your relationship with them. Better to have the documentation and not require it than to be at passport control and be denied entry. Typically the relevant documentation advised is:
- Written consent from the other parent and their contact details
- Proof of your relationship with the children – such as a birth or adoption certificate.
- If you have a different surname to your child that is not on their birth certificate e.g. your name has changed since their birth – take additional evidence to confirm your relationship for example a copy of your marriage certificate or Decree Absolute/Final Order in divorce or change of name deed etc
- Specifics of your trip
- You should also check your proposed destination as to whether they have any additional entry requirements – carrying the right documentation can ease stress and upset or worse a cancelled holiday.
Be prepared and plan in advance
Timing is crucial. Don’t leave these issues until a week before a planned trip – take time to ensure both of you feel heard in any dispute and can work towards an agreed resolution. Conflict arises most often when the other parent feels backed into a corner over arrangements they have no control over and this could result in expensive Court or Arbitration applications which should be avoided as far as possible and only used in circumstances of genuine disagreement, exceptional cases and as a measure of last resort.
What can you do if you can’t reach a direct agreement?
If you’re unable to agree on the arrangements in direct discussions/communication then you should consider whether mediation is appropriate. Mediation provides an opportunity to explore all issues in a non-confrontational manner with assistance from an independent and impartial mediator who helps you to discuss the issues between you and reach a bespoke agreement that suits your individual family needs. Mediation can be a great success and the advantage is that you, as parents, retain full control over the arrangements for your family. It also has the advantage of being a flexible and cheaper alternative to Arbitration or Court litigation where the procedures can be consuming and costly- both emotionally and financially.
If mediation is not suitable then other alternatives would be to try a more collaborative approach – either formally using a collaborative law process whereby all discussions take place around the table with specially trained advisors or negotiation through solicitors either by round table meetings, correspondence or otherwise.
Taking a child abroad without the right consent can have serious legal consequences, and our child relocation solicitors can confirm exactly what permission you need before you travel.
Disclaimer: Please note that this page is for guidance only and does not replace legal advice. It is correct with the law at the time of publication but please be aware that laws may change over time. This article contains general legal information but should not be relied upon as legal advice. Please seek professional legal advice about your specific situation – contact us for dedicated help for you.
Our Latest News
Director – SRA number: 494434
Lisa Buckridge is a Director at Purcell Solicitors and has over 20 years of experience in family law. She qualified in the early 2000s and became a director of the firm in October 2015. She holds accreditation as a Family Mediation Council-accredited Mediator, obtained in 2022, and is one of a small number of lawyer-mediators qualified to carry out Child Inclusive Mediation. She is also a trained collaborative lawyer and hybrid mediator.
Lisa handles the full range of family law matters, including divorce, financial settlements, children proceedings, pre- and post-nuptial agreements, and cohabitation disputes. Her referrals come principally from solicitors, including London-based practices, the local judiciary, and former clients, a pattern that reflects her standing in the field. She has worked on cases involving a terminal health diagnosis and cases in which the opposing party was a specialist family law barrister.
Chambers and Partners ranks Lisa in Band 3 for Family/Matrimonial in the Thames Valley in the UK Guide 2026. She has also been spotlighted specifically for her mediation practice in the Family/Matrimonial Mediators: Thames Valley category. Chambers describes her as “an excellent solicitor who robustly and effectively represents her clients’ interests” and as “incredibly clever” with the ability to “construct cases perfectly”.
Her reported cases include Re R (a child) EWCA Civ 35, in which the Court of Appeal held that a judge had erred by failing to properly evaluate a child’s wishes or to hear evidence from a CAFCASS officer before departing from that officer’s recommendation. She also acted in Scotching and Birch EWHC 844 (Ch), a case concerning burial arrangements and letters of administration following the death of a child; the case has since been cited in several academic papers and journal articles.
Lisa is a member of Resolution and is regulated by the Solicitors Regulation Authority (SRA number: 494434). She can be contacted at lisa@purcellsolicitors.co.uk.
Forthcoming changes to Family Law in 2024
Separation & Divorce
A further shift to non-court dispute resolution
As family solicitors, we know all too well that the costs of litigating disputes through the Court, both emotionally and financially, can be vast and, on occasion, disproportionate.
The reality is that there are some cases where issuing Court proceedings is, and will remain, the best solution, particularly where there is extensive domestic abuse, or where you have a reluctant person who may currently be burying their head.
However, at Purcell Solicitors we have long been advocates of non-Court methods of resolving family disputes if possible, such as mediation, collaborative law, lawyer-led negotiation, private evaluations and arbitration to name a few. Indeed, Pauline was one of the first solicitor arbitrators, Pauline, Mandi and Lisa are trained collaborative lawyers, Lisa is a fully accredited mediator and all of our solicitors are members of Resolution striving to minimise acrimony for you in an often very difficult time.
Upcoming Family Law Changes
Sadly, Court has remained, for too many people, the first or indeed only option and it can be hard to understand why an alternative process (which may on the face of it occasionally appear to have more expense although often isn’t in reality given the time typically saved in achieving a resolution) should be considered when there are already proceedings before the Court.
Thankfully the tide appears to finally be turning as there is now to be a much greater emphasis, for those considering or indeed already within Court proceedings, on considering other processes to resolve their disputes.
Family Procedure Rules
From April 2024, the Family Procedure Rules are changing, marking a further shift towards the encouragement of the use of “non-court dispute resolution” the definition of which has been expanded to ensure a greater emphasis on consideration of all options.
Whilst specialist family lawyers are well versed in advising people as to these alternatives, the changes to the FPR mark a shift towards those who may not be so well versed and the Court’s own role with a stronger encouragement on the use of these processes to try and reduce the number of separating couples who find themselves going through the Court process, and with real risks and consequences to those who fail to consider alternatives and simply say “see you in court” without good reason.
What is non-Court dispute resolution?
This is a term coined to cover any means of resolving family disputes without going through the litigation Court process. The definition of non-court dispute resolution is expanded from 29th April so that it means:
“Methods of resolving a dispute other than through the Court process, including but not limited to mediation, arbitration, evaluation by a third party (such as a private financial dispute resolution process) and collaborative law.”
Didn’t we always have to do this?
Mediation Information and Assessment Meeting
Currently, anyone who is making an application to the Court is required to first attend something known as a Mediation Information and Assessment Meeting (“MIAM”). This is an individual meeting with a mediator to assess whether or not mediation could work in your situation and assess other alternatives if not.
The reality is that, to date, too often this is considered a “box ticking” step to enable an application to be issued. There are also currently a number of exemptions from the MIAM meaning that some people miss out on that crucial information that can be provided in that meeting. Although you are required to provide proof of MIAM attendance it is often the case that a busy Court does not actually look at the reasons why someone has not attended a MIAM, meaning that exemptions can be used when they really should not have been. With the changes to the law in force from April 2024, this is to change. The new rules will strengthen the focus on non-court dispute resolution by:
- Removing some of the existing exemptions for a MIAM (there will always remain some exemptions such as urgency and domestic abuse).
- MIAM providers (those who follow the FMC standards for MIAMs will no doubt have already been doing this) must now assess and discuss all forms of non-court dispute resolution and assess whether they may be appropriate and provide guidance on how to proceed with those if appropriate.
- In addition, if Court proceedings are needed, each person will be required to file a form with the Court seven days before each Hearing indicating whether they would be open to using non-court dispute resolution. This is to encourage and promote the use of other forms of resolving disputes as whilst it may not have been appropriate at the outset, it is something that should be kept under constant review. This will ensure the Court is aware of the parties’ position on non-court dispute resolution and bring a greater focus to this than has currently been the case.
- The Judges will also consider non-court dispute resolution at each stage and where previously the Court were able to adjourn cases to explore non-court dispute resolution if both parties were in agreement, from April 2024, the Court have the power to do this, absent the agreement of the parties if it would be suitable by enabling the Court to timetable the proceedings to ensure sufficient time for steps for non-court dispute resolution to be undertaken.
- Arguably the biggest shift to the encouragement to the parties to really consider non-court dispute resolution in proceedings to resolve financial disputes are new rules ensuring that a Judge can take into account one party’s refusal to attempt non-court dispute resolution when making decisions about costs in financial cases. The new rules explicitly state that failing to engage in non-court dispute resolution without good reason could lead to a departure from the general starting point that there should be no order as to costs. This means that if you don’t have a good reason not to move away from Court you could find yourself penalised in costs.
Why this change?
Whilst the sentiment behind these rules has been in place for some time and specialist family lawyers, such as Purcell, have long been championing non-court dispute resolution, it is hoped that these formal rule changes will provide greater encouragement for Judges, practitioners, and indeed the people having to use the system to keep the method in which they are resolving disputes at the forefront of their minds.
This should help keep matters away from Court where possible and enable longer-lasting and more effective solutions to be reached at an earlier stage. Greater use of non-court dispute resolution should lead to a reduction in conflict and an increase in parties finding common ground rather than having solutions imposed on them by the Judge in Court litigation.
With this greater emphasis on mediation and other forms of non-court dispute resolution, the Family Court hopefully will become more efficient, prioritising those cases where Court intervention must take place due to for example safeguarding issues and domestic abuse, and result in those cases being dealt with more quickly and more efficiently for the sake of all involved then is sadly currently the case.
No family is the same and the ability to create bespoke solutions by considering all the processes available can only be to the benefit of those that the law seeks to assist.
If you are looking for further information about the different forms of non-court dispute resolution, interested in considering mediation or simply feeling stuck as to where to turn in relation to resolving a dispute, please get in touch with us to discuss how we can assist you further.
Disclaimer: Please note that this page is for guidance only and does not replace legal advice. It is correct with the law at the time of publication but please be aware that laws may change over time. This article contains general legal information but should not be relied upon as legal advice. Please seek professional legal advice about your specific situation – contact us for dedicated help for you.
Our Latest News
Director – SRA number: 494434
Lisa Buckridge is a Director at Purcell Solicitors and has over 20 years of experience in family law. She qualified in the early 2000s and became a director of the firm in October 2015. She holds accreditation as a Family Mediation Council-accredited Mediator, obtained in 2022, and is one of a small number of lawyer-mediators qualified to carry out Child Inclusive Mediation. She is also a trained collaborative lawyer and hybrid mediator.
Lisa handles the full range of family law matters, including divorce, financial settlements, children proceedings, pre- and post-nuptial agreements, and cohabitation disputes. Her referrals come principally from solicitors, including London-based practices, the local judiciary, and former clients, a pattern that reflects her standing in the field. She has worked on cases involving a terminal health diagnosis and cases in which the opposing party was a specialist family law barrister.
Chambers and Partners ranks Lisa in Band 3 for Family/Matrimonial in the Thames Valley in the UK Guide 2026. She has also been spotlighted specifically for her mediation practice in the Family/Matrimonial Mediators: Thames Valley category. Chambers describes her as “an excellent solicitor who robustly and effectively represents her clients’ interests” and as “incredibly clever” with the ability to “construct cases perfectly”.
Her reported cases include Re R (a child) EWCA Civ 35, in which the Court of Appeal held that a judge had erred by failing to properly evaluate a child’s wishes or to hear evidence from a CAFCASS officer before departing from that officer’s recommendation. She also acted in Scotching and Birch EWHC 844 (Ch), a case concerning burial arrangements and letters of administration following the death of a child; the case has since been cited in several academic papers and journal articles.
Lisa is a member of Resolution and is regulated by the Solicitors Regulation Authority (SRA number: 494434). She can be contacted at lisa@purcellsolicitors.co.uk.