Myths and Realities in the UK


You’re asking how child custody works: When relationships break down, one of the most challenging and emotional aspects is determining arrangements for children.

It’s hard. It’s emotive. It’s quite possibly going to cause you more heartache than just about any situation you’ve ever faced. So you’d be forgiven for letting your feelings take over and not acting in the most rational manner.

The thing is…while people often talk about “child custody” this term is not officially recognized in English and Welsh law. Instead, the legal system focuses on what is known as “child arrangements,” prioritising the child’s welfare above all else. This article delves into how child custody works—or rather doesn’t—in England and Wales, addressing common myths, explaining why disputes arise, and clarifying the legal powers parents hold.

Note: England and Wales is one of the 3 jurisdictions within the United Kingdom. Scotland is a distinct jurisdiction, as is Northern Ireland. Likewise, other countries have different laws too.

This blog post – as with all on this site dicusses England and Wales, none other.

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The Legal Framework: Child Arrangements Orders

Under the Children Act 1989, the concept of “custody” has been replaced with “child arrangements orders.” There is no such thing in England and Wales.

These orders can (but don’t have to) outline where a child lives, who they spend time with, and other important aspects of their upbringing. The court’s paramount consideration is the child’s welfare, guided by the “Welfare Checklist” in Section 1 of the Act.

This checklist includes:

  • The child’s wishes and feelings (considered in light of their age and understanding).
  • Their physical, emotional, and educational needs.
  • The likely effect of changes in their circumstances.
  • Their age, sex, background, and relevant characteristics.
  • Any harm the child has suffered or is at risk of suffering.
  • The capability of each parent to meet the child’s needs.

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Why Is There No “Custody” in English and Welsh Law?

The term “custody” often evokes ideas of ownership or control, which are inconsistent with the modern child-centric approach of family law in England and Wales. The prevalence of US TV and movies means that it’s a word that people hear a lot. Not only that, up until the introduction of the Children Act in 1989, this area of law was covered by the 1975 Children Act – which does mention custody.

Google the term though….and you’ll find it everywhere. Even on UK-based legal firms it’s a thing. The reason for this? People are searching for it – and it’s a great way to drive traffic to a website. We’re doing the same. You’re probably reading this because you’ve been trying to find out about…custody.

But the reality is that term was removed to try to focus on child arrangements, avoiding adversarial language and emphasising cooperation between parents. It’s worth noting that while “joint custody” or “sole custody” are common terms in other legal systems, such as in the United States, they have no legal standing in England and Wales. Which means if you’re using the term you’re talking about something that has no legal definition and therefore what you actually mean will be unclear.

I hope that makes things clearer.

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Common Myths About Child Custody

Misunderstandings about “child custody” persist, often fueled by misinformation and the emotional intensity of family disputes. Here are some common myths:

  1. That is a legal definition, defined in law: See above! It isn’t. Which means if you are using the term no one is going to be able to be clear about what you actually mean. If you do use the term, you’ll be asked what you mean by it.
  2. Mothers automatically get custody: The law does not favor mothers over fathers. Decisions are based on the child’s best interests, not the gender of the parent.
  3. It means one parent is in charge: There is nothing specific in English and Welsh law that gives a parent power to veto or overrule the other one (aside from foreign travel where there is a residence/lives with order.
  4. Children can choose which parent to live with: While a child’s views are considered, their preferences are just one factor among many. Young children’s opinions are given less weight compared to older, more mature children.
  5. Equal time is guaranteed: Shared care arrangements are increasingly common, but they are not automatic. The court assesses whether such an arrangement is practical and in the child’s best interests. The court doesn’t equate an exactly equal amount of time as being the same as being as equal in importance.
  6. The court always decides arrangements: Most cases are resolved through negotiation, mediation, or agreement between parents without court involvement. The court will always take the view that the best interests of the child are served by parents working together.

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Why Do Parents Fight Over “Custody”?

Parental disputes about child arrangements often stem from deeper emotional conflicts, fears, and misunderstandings. Here are some key reasons:

  1. Fear of losing contact: Parents worry that they will lose their bond with their child if they do not have significant time with them.
  2. Mistrust and conflict: High levels of mistrust or unresolved issues from the relationship can lead to disputes over arrangements.
  3. Misunderstandings about legal terms: As noted earlier, misconceptions about “custody” and “rights” can fuel unnecessary conflict.
  4. Power dynamics: In some cases, one parent may want to use it as a way to exert control over the other.
  5. Concern for the child’s welfare: Both parents may genuinely believe their approach is in the child’s best interests, leading to disagreements.
  6. Self worth: Many parents feel it is important to have `custody’ and that not having it means they’re a second class parent.

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How child custody works: The Court’s Role in Resolving Disputes

If parents cannot agree on child arrangements, they may apply to the court for a child arrangements order. Before doing so, they must attend a Mediation Information and Assessment Meeting (MIAM), unless exempt (e.g., in cases involving domestic abuse). Mediation encourages parents to resolve issues collaboratively, reducing the need for court intervention.

When a case goes to court, the judge or magistrate will:

  1. Encourage Cooperation: Courts aim to minimize conflict and encourage a resolution that works for both parents.
  2. Involve CAFCASS: The Children and Family Court Advisory and Support Service (CAFCASS) may be involved to provide reports and recommendations based on the child’s needs.
  3. Make a Decision: If parents cannot agree, the court will issue an order specifying living arrangements, time spent with each parent, and other relevant details.

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What Powers Does a Child Arrangements Order Give?

A Child Arrangements Order (CAO) grants specific powers and responsibilities to parents or guardians. These orders can contain one or more elements. They can (but don’t have to) include:

  1. Where the Child Lives: The order can specify which parent the child resides with and for how long.
  2. Contact Arrangements: It outlines how and when the other parent will spend time with the child, including overnight stays, holidays, and electronic communication.
  3. Parental Responsibility: Both parents retain parental responsibility unless it is explicitly removed by the court. This means they must make joint decisions about the child’s education, healthcare, and other significant matters.
  4. Enforcement Powers: If one parent breaches the order, the other can apply to the court for enforcement. Sanctions may include fines, community service, or, in extreme cases, imprisonment.

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Practical Tips for Parents

Navigating child arrangements can be challenging, but there are ways to make the process smoother:

  1. Focus on the Child: Keep your child’s welfare at the heart of all discussions and decisions.
  2. Communicate Effectively: Clear, respectful communication can prevent misunderstandings and reduce conflict.
  3. Consider Mediation: Mediation can help parents reach agreements without the need for court proceedings.
  4. Seek Legal Advice: A good McKenzie Friend or family law solicitor can provide guidance tailored to your circumstances.
  5. Document Agreements: Whether informal or formal, documenting arrangements can prevent disputes later.

I can’t emphasis enough: The best solution by far is one that parents agree between themselves. Damaged trust can be rebuilt with effort and parents can learn to respect each other as a parent even if their relationship didn’t work out. A court – one or more strangers – making a decisions about children they’ve never met and never will is never going to be ideal.

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Conclusion

Understanding how “child custody” works in England and Wales requires dispelling myths and focusing on the realities of child arrangements law. By prioritizing the child’s welfare, the legal system aims to ensure that disputes are resolved in the least adversarial and most constructive way possible. While the process can be emotionally taxing, parents who focus on cooperation and the best interests of their child are more likely to achieve positive outcomes. Ultimately, the goal is not to “win” custody but to provide a stable, loving environment where the child can thrive.

If you’ve searched `how child custody works’ I hope this post helps. It’s a little more complicated than you probably thought…but you’ll be clearer now with the above info.

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