When a relationship breaks down a child’s parents can make an application to the Court to decide upon the child arrangements. In respect of this question, the child’s welfare is paramount and the check list in section 1(3) of the Children Act 1989 will apply, which looks at the wishes and feelings of the child, their physical, emotional and educational needs, the likely effect on them of any change in their circumstances, their age, sex, background and characteristics, any harm which they have suffered or are at risk of suffering and how capable each of their parents are in meeting their needs. Since the Children and Families Act 2014 came into force, these applications are reliant on a presumption that unless the contrary is shown, the involvement of a parent in the child’s life will further that child’s welfare.
Determination of Child Care Arrangements
In England and Wales, the determination of child arrangements is a two stage process with the first consideration being the amount of time that the child will spend with each of the parents and the second, being the label or terminology attached to it (that is, whether the Child Arrangements Order should state that the child lives with one parent and spends time with the other, or lives with both parents.
It is a widely held misconception that shared care means a 50/50 split of time between the parents when they separate, however, this is not in fact the case. Shared care actually means that the child will spend time with each parent and the days or times to be spent with each parent will be specified within an order made by the Court, if the parents cannot agree.
So is 50/50 shared care the best?
The Court’s consideration in Child Care Arrangements
The primary consideration for a Court is what is in the best interests of the child. In deciding whether the child’s time should be split between the parents, the main factors considered by the Court relate to
- The age of the child/children;
- The child’s needs;
- The practicalities and logistics of daily life for the child;
- Where both parents reside in relation to each other;
- Work patterns of the parents;
- Any family support either parent has available to them.
The Court will always consider that it is in the best interests of the child to see both parents (unless there are exceptional circumstances) and would not ask the child to “choose” one parent over the other. However, the older the child is, the more likely the Court will take into consideration their wishes as to whom they would like to spend their time with or in which parent’s home. Clearly, the wishes of a 14 year old, and where they want to spend their time will be far more compelling than the wishes of an 8 year old.
It is also to be noted that a Child Arrangements Order expires when the young person reaches the age of 18. However, you can only apply for a Child Arrangements Order for a child aged between 16-18 in exceptional circumstances.
Whilst the key advantages of equal shared care include the benefits which can flow from the substantial involvement of both parents in the life of a child including better emotional and psychological wellbeing and that the child perceives that both parents have equal status in terms of their parental powers and responsibilities, this is not the case, if it is inconsistent with the best interests and welfare of the child. This therefore reinforces the principle that any shared care arrangement should have the wellbeing of the child as its priority.
Ultimately, what is essential for any parent who finds themselves in a position of having to decide on a shared care arrangement for their children is to try to maintain an amicable and open co-parenting relationship with the other, as this will best facilitate meeting their child’s needs. The best child arrangements will require an element of flexibility and this is best achieved by parents who can be civil and conciliatory with one another.
What happens if you can’t agree on the divison of Childcare?
Unfortunately, this is not always possible and if parents cannot agree on where the child should live there are 3 options
- Family mediation to help them reach an agreement.
- Making an application to the Court for a Child Arrangements Order to determine where the child should reside.
- Agreeing to Arbitration, with the effect that an independent arbitrator will make a decision. An arbitrator can be a specialist family barrister or solicitor or a retired Judge.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
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