Do mothers automatically get the children after divorce?

No. English law gives mothers no automatic priority over fathers on separation. Since the Children Act 1989 came into force in 1991, both parents start from the same legal position. The outcome depends on what the court finds will best serve the child's welfare, assessed on the facts of that particular case.

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. Each order is tailored to the individual 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. 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. 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 more mature. 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 for the children?

If parents cannot reach agreement through direct negotiation, mediation, or other means, they may consider family arbitration, which can produce a binding decision far faster than the family court. If arbitration is not agreed, either parent may apply to court using Form C100. Before issuing a court application, the applicant must attend a Mediation Information and Assessment Meeting (MIAM), unless an exemption applies.

Contents

1 Can I Move Away with my Children After Separation?

Can I Move Away with my Children After Separation?

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

Do I need the other parent's permission to move to a different city in the UK?

Not always, but the answer depends on the circumstances of your case. If the move would affect the child’s school or disrupt an existing Child Arrangements Order, you need either written consent or a court order before you go. Where there is no order in place, and the move leaves existing contact arrangements materially undisturbed and there is no real change to the existing arrangements concerning the child, no formal permission is required. A unilateral move that significantly reduces the other parent’s time with the children and changing the child’s arrangements can, however, prompt an urgent application to court, and the court will scrutinise the decision carefully.

What happens if I take my child abroad without permission?

Removing a child from the UK without the consent of everyone with parental responsibility, or without a court order, is a criminal offence under section 1 of the Child Abduction Act 1984, carrying a sentence of up to seven years’ imprisonment. In parallel, the parent left behind can apply for the child’s return through the Hague Convention if the destination country is a signatory, or through diplomatic and legal channels if it is not. Criminal and civil proceedings can run concurrently.

Can a court refuse permission to relocate abroad with the children?

Yes, and it does so regularly. Since Re F (A Child) (International Relocation Cases) [2015] EWCA Civ 882, the court applies a pure welfare analysis with no presumption in the applicant’s favour. Where the court concludes that remaining in England and Wales better serves the child’s interests, or that the other parent’s counter-proposals are preferable, permission is refused. The detail and credibility of the applicant’s relocation plan, and the prospects for the child maintaining a meaningful relationship with the other parent, are usually the factors that determine the outcome.

Does the 28-day rule mean I can take my child on holiday without telling the other parent?

No. The provision in section 13(2) of the Children Act 1989 does not remove the obligation to inform the other parent. It simply means that a parent named in a Child Arrangements Order as the person with whom the child lives does not need formal consent for trips of less than a month. Best practice, and what courts expect, is that you notify the other parent of your plans in advance, provide itinerary details, and ensure the trip does not breach any other term of the order. Failing to do so can lead to an emergency application by the other parent.

What is the Hague Convention, and does it guarantee my child's return?

The 1980 Hague Convention on the Civil Aspects of International Child Abduction is a treaty between over 100 countries, including the UK, that allows a parent to apply for the return of a child wrongfully removed to a signatory state. Return is not guaranteed: the removing parent can rely on the grave risk defence under Article 13(b), the child’s own objections if they are of sufficient age and maturity, or evidence of settled life in the new country if more than a year has passed since the removal. Courts in signatory states apply these defences narrowly, but they are used successfully in some cases. Where the destination country is not a signatory, there is no summary return procedure and recovery is considerably more difficult.

Lisa Buckridge

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.