Family courts and children's living arrangements

How does a court decide living arrangements for children after divorce or separation? 

It is not necessary to have a court decide on a child's living arrangements after divorce or separation and there are many ways for parents to resolve matters other than through court proceedings (see Do I have to go to court to decide where our children will live when we separate?).  Asking for the court's assistance is optional, however, it is still helpful to understand the court's approach, given this is guided by the law, even if this is not the route which is chosen.

The child's welfare or best interests is the most important consideration for a court when it is asked to decide on the arrangements for a child after their parents have separated.

When considering what is in a child's best interests, the court will look at a number of factors including:

• what the child wants (but only if it is appropriate to try to look at this in light of the child's age and understanding);
• the child's physical, emotional and educational needs;
• how able is each of the parents to meet the child's needs;
• any particular characteristics of the child which the court considers relevant (including the child's age, sex and background); and the likely effect on the child of changes to their circumstances.

The court may be informed by a report from a court-appointment social worker. Court-appointed social workers work for an organisation known as Cafcass (Children and Family Court Advisory and Support Service). Cafcass's role is to independently advise the courts about what is in the best interests of children, which they may do by meeting with the parents and the child and observing them in various settings. Their job is to ensure that (where appropriate) children's voices are heard, and Cafcass is sometimes described as 'the eyes and ears of the court' in the sense that they are able to observe for the court what is happening 'on the ground'.  

Sometimes the parties may agree (with the court's permission) to appoint a 'private' or Independent Social Worker in place of Cafcass. (An Independent Social Worker is also able to provide input to Non Court Dispute Resolution (NCDR) methods). The court may also be informed by hearing from the parents (either through witness statements or in court).  

The court will, wherever possible, seek to help the parents reach their own agreement rather than make a decision for them and it will, at all stages, encourage them to use NCDR (again see Do I have to go to court to decide where our children will live when we separate?).  

If the child in question is 16 or over, the court is unlikely to make an order. It tends to consider it to be 'inappropriate or even futile' to make orders which conflict with the wishes of older children.