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
ather spending time with his child at home after separation — child arrangements advice from Purcell Solicitors

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.

 

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.