When parents separate, one of the most important and sometimes most difficult questions is: what happens to the children? Many parents immediately think about custody, but in UK family law the correct legal term is now Child Arrangement Orders.
In this article Taya Thorogood a Solicitor in the Family Department, explains clearly how custody works in practice, what the law says, and how you can achieve the best possible outcome for both your child and yourself as a parent.
If you are considering Separation or Divorce or Child Arrangement Orders generally, our experienced Team of Family Lawyers are on hand to assist you. To discuss how we can help, please contact your local Kingsfords office in Ashford, Cranbrook or Hythe. Alternatively, you can ‘Get-In Touch’ via our website enquiry icon, or by calling us on 01233 665544.
Custody vs. Child Arrangement Orders
The word custody is still widely used in everyday language, but legally it has been replaced. Since the Children Act 1989, the courts no longer issue “custody orders.” Instead, the court can make a Child Arrangements Order (CAO).
A child arrangements order sets out:
- Who the child lives with (sometimes referred to as “residence”).
- How much time the child spends with the other parent (sometimes referred to as “contact”).
- Other practical details, such as holiday arrangements, birthdays, schooling decisions, medical decisions, or how the child communicates with a parent when not together.
So when people talk about custody, what they are really referring to is a “Child Arrangements Order”.
The Law Governing Custody in the UK
The key piece of legislation is the Children Act 1989. It introduced the guiding principle that the welfare of the child is the court’s paramount concern.
Other important legal frameworks include:
- Children and Families Act 2014, which places emphasis on mediation and resolving disputes outside court.
- Family Procedure Rules 2010, which govern how applications for Child Arrangements Orders are made and handled in the courts.
The law does not favour mothers or fathers—it is focused primarily on the child’s best interests.
Three Key Concepts in Child Custody
When talking about custody in the UK, three key concepts come up repeatedly:
1. Parental Responsibility
Parental responsibility is the legal rights and duties a parent has towards their child. Mothers automatically have parental responsibility, while fathers do if they are married to the mother or named on the child’s birth certificate (since December 2003 in England and Wales).
Parental responsibility allows parents to be involved in major decisions, such as schooling, healthcare, and religion, regardless of where the child lives.
2. Mediation
Before applying for a Child Arrangements Order, parents are usually required to attend a Mediation Information and Assessment Meeting (MIAM). Mediation is an opportunity for parents to reach agreements without going to court, and preserving some amicability during what can be a difficult time.
Mediation is often less stressful, cheaper, and quicker than litigation. It allows parents to keep control over the outcome rather than leaving it to a judge.
3. Child Arrangement Orders (CAOs)
This is the formal legal order the court can make if parents cannot agree. A CAO decides who the child lives with, when they see each parent, and how responsibilities are shared.
The court can make different types of CAOs, including:
- Live with order – deciding where the child’s main home will be.
- Spend time with order – setting out when the child has contact with the other parent.
- Specific issue order – deciding on a particular point, such as which school a child should attend.
- Prohibited steps order – preventing a parent from taking certain actions, such as moving abroad with the child without permission from the other parent.
How Custody Decisions Are Made
The court always works from the welfare checklist in the Children Act 1989, which considers:
- The child’s wishes and feelings (depending on age and maturity).
- The child’s physical, emotional, and educational needs.
- The likely effect of any changes in the child’s circumstances.
- Any risk of harm to the child.
- The capability of each parent to meet the child’s needs.
The court does not automatically award custody to one parent. Increasingly, courts encourage shared care where possible, so that children have meaningful relationships with both parents.
Practical Arrangements That Can Be Put in Place
There are many different ways custody (via a child arrangements order) can be structured, depending on the needs of the child and the family. For example:
- Shared care – The child lives part of the week with each parent, e.g., 50/50 or another suitable split.
- Primary residence with regular contact – The child has a main home with one parent, but frequent contact with the other parent (weekends, holidays, and mid-week visits).
- Flexible arrangements – Parents may agree to arrangements that change depending on work shifts, schooling, or the child’s activities.
- Supervised contact – In rare cases where safety is a concern, contact may be supervised by a third party or at a contact centre.
Why Mediation Matters
Mediation is now at the heart of family law in the UK. Unless there are safeguarding issues (such as domestic abuse), you cannot apply for a Child Arrangements Order without first attending a “MIAM”.
Benefits of mediation include:
- Focus on the child – Helps parents prioritise the child’s needs, rather than focusing on the conflict.
- Reduced costs – Mediation is generally far cheaper than court proceedings.
- Faster outcomes – Court cases can take many months, while mediation can lead to agreement in weeks.
- Control and flexibility – Parents, not judges, decide the arrangements.
Mediation is not about reconciliation between the parents—it is about creating a safe, constructive space to agree what is best for the child.
Common Misconceptions About Custody
- “The courts favour mothers.” – This is no longer the case. The law is neutral and focused on the child’s welfare.
- “Custody means one parent gets full control.” – Not true. Parental responsibility means both parents remain involved in major decisions. Parental responsibility is shared equally and neither parent’s parental responsibility overrides the other’s.
- “If we agree informally, that’s not valid.” – Informal agreements are valid, but a court order may give additional security and enforceability.
- “Children can choose where they live at 12/13.” – Children’s wishes and feelings are considered, but the court decides based on overall welfare.
Enhancing the Prospects of the Best Outcomes
For the Child
- Stability is crucial: predictable routines and clear arrangements help children feel secure.
- Ongoing relationships with both parents are usually in the child’s best interests.
- Shielding children from conflict reduces stress and emotional harm.
For the Parents
- Aim for cooperation wherever possible—mediation is often the best route.
- Remember that “winning custody” is not the goal; supporting the child’s wellbeing is.
- Respecting the other parent’s role can lead to more harmonious long-term co-parenting.
If you are facing questions about custody or need advice on child arrangement orders and mediation, our family law team is here to guide you every step of the way.
Please contact Taya Thorogood or other members of the Family Department to help you weigh your options and help secure peace of mind.
You can contact one of our family law solicitors in Kent at our offices in Ashford, Cranbrook or Hythe today by calling 01233 624545, or fill in our enquiry form on the right hand side of the page to request a call back.