How do the Courts determine who the children of the Family should reside with?

By Rakhi Singal

Rakhi Singal is Founder, Director and Head of Family Law at RVS Solicitors. Studying at Bournemouth University and BPP Law School, Rakhi quickly gained a profile in the industry for her work. After creating and successfully managing the Family Law & Civil Litigation department at a leading Legal 500 law firm in London, a role that she was headhunted for, she got the idea to create a law firm in her own image. RVS Solicitors was created and has subsequently helped hundreds to achieve their legal goals, start new futures and obtain justice. A highly regarded family lawyer in the UK, Rakhi gained industry recognition for her relentless attitude, negotiation skills and her ability to always stay calm under pressure and provides a high level of expertise, knowledge and service to our clients every day.

Having to deal with residency arrangements during divorce proceedings can be a very difficult time. The Family Court has always encouraged parents to reach an agreement without assistance from the court. However, in circumstances in which parents are unable to agree on where their child should live, the court can be asked to decide on the matter instead.

Usually, a Statement of Arrangements is submitted to the Family Court with the divorce petition however, a Statement of Arrangements can also be submitted separately at a later date. In circumstances where parents require a decision to be made relating to where their child should reside, a child arrangement order can be made which assists in determining where the child resides. Section 8 of the Children Act 1989 states that a child arrangement order determines “with whom a child is to live, spend time or otherwise have contact, and when a child is to live, spend time or otherwise have contact with any person”.

If you are currently considering completing a Statement of Arrangements, contact us and our experienced family solicitors will advise you on how this should be completed correctly to help you achieve your desired outcome.

The courts must act in the child’s best interest and as such in the Children Act 1989, the general principle is that the child’s welfare must be the courts’ paramount consideration.  Section 1 of the Children Act 1989 further states that the court must have regard to the fact that any delay in ascertaining a question relating to a child is likely to be detrimental to the child’s welfare. It should, therefore, be noted that a court will only make an order if it is in the child’s best interest. Having said that, the courts are instructed to presume that involving both parents in the upbringing of a child will benefit the child’s welfare unless obviously, it can be demonstrated that this will not be the case.

What factors does the Family court consider when making a child arrangement order?

The court must also consider the seven statutory factors outlined under section 1 (3) of the Children Act 1989. This is most commonly referred to as the welfare checklist the court should consider in detail before an order is granted.

The court is, firstly, required to consider the ascertainable wishes and feelings of the child concerned whilst also having regard to the child’s age and level of understanding. The court will usually obtain assistance from the Children and Family Court Advisory (CAFCASS) as a CAFCASS welfare officer will speak with the child directly. The court must also consider whether the child’s expressed wishes and feelings are genuinely only theirs to ensure that the child has not been influenced by their parents and any other relevant person involved in the child’s life.

Secondly, the court is required to consider the child’s physical, emotional and educational needs. This factor requires the court to question which parent would be best equipped to provide the child with the required physical, emotional and educational needs.

Thirdly, the court must take into account the likely effect on the child of any change in his/her circumstances. The court’s objective will be to grant an order that causes the least disruption to the child’s life and daily routine. However, this is not an overriding factor and as such, the court will balance all of the other relevant factors to reach a fair decision.

The court must also consider the child’s age, sex, background and any characteristics of his/her which is relevant. It should be noted that the court can also consider the parents’ hobbies and lifestyle which should assist in deciding which parent would be able to provide the most beneficial lifestyle for the child.

There must also be regard to any harm which the child has suffered or is at risk of suffering; harm is inclusive of physical, emotional and mental harm. The court can, therefore, implement appropriate safety measures within an order to ensure the child’s safety and well-being.

Further to the above, the court must also assess how capable each of the child’s parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting the child’s needs. This is very much subjective and will depend on the circumstances of each case, however, generally, the court will attempt to determine the needs of the child and whether each parent has the ability to meet those needs.

Finally, the court must consider the range of powers available in the proceedings in question. Whilst having regard to all of the aforementioned factors and the orders that can be granted, the court will thereafter make an order that is in the best interest of the child whilst ensuring the child’s safety and well-being.

This is not a comprehensive list and the Family Court has the power to consider other relevant factors that may impact a child’s well-being. Additionally, the judge is not required to address each of the seven factors listed above; the list is a guide to ensure that all of the important factors relating to a child are considered and well-observed before an order is granted.

Divorce and separation proceedings can be emotionally and financially draining which can be further exasperated in cases where parents cannot reach an agreement with childcare arrangements. It is therefore vital to seek legal advice and guidance before proceedings commence and more importantly, to instruct specialist family solicitors who can provide detailed advice in a friendly and compassionate manner.

Contact us today and our team of experts can provide a detailed assessment with clear instructions on what steps to take next to ensure the best outcome for both the parents and the child.