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.
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.