In the Best Interest of the Child
It is not unusual in a family law case for a client to ask us “Can I get custody of my children?” McAlister Family Law partner and children law expert Ruth Hetherington explains.
Firstly, it’s important you understand that the concept of child “custody” no longer exists in English law and indeed has not done so since 1989. Having said that, we understand that many people undergoing separation or divorce think of looking after their children and having those children live with them in terms of custody. Since 1989 this has been known as Parental Responsibility, which is automatically acquired by a mother on the birth of a child, and by all married fathers, and all fathers whose names are on their child’s birth certificates.
Many will ask us who will get custody or talk about sharing custody or want to know their rights regarding custody. The answer to this question is that, save in exceptional circumstances, both parents will retain Parental Responsibility during the child’s minority and the Court expects them to use this responsibility to decide with which parent the child will live, and how the other parent will spend time with them. We accept that when the media still reports that such-and-such a celebrity is going to court over child custody, or watch a film where one parent fights for custody of the child (Kramer vs Kramer being perhaps the most famous and enduring example of this), this confuses parents when separating.
Child Arrangements Order
The best arrangements are those that are agreed between the parents, and which suit their family’s own circumstances; as stated above, this is what the Court expects.
For those who can’t find a way to reach an agreement, that is, you and the other parent cannot agree where your children will live and when and how they will spend time with each parent – then you need to instruct a solicitor to apply to the Family Court for a Child Arrangement Order so that each adult can spend time with and/or live with the child or children. But before you go down this path, we would urge you to first attempt mediation, which is where an independent third party will listen to both sides and try to help you, as a couple, reach an agreement.
The best interests of the child
The most important consideration of the Court, and one which you should keep in front of mind, is that it will always consider what is in the best interests of the child, as opposed to any perceived “rights” of any of the adults involved. The Court will determine the facts and decide upon what is in the child’s best interests. A “presumption of continued parental involvement” exists, but this should not be mistaken as a presumption of shared care, or even a guarantee of direct or indeed any, contact. Rather it is an acknowledgement that parental contact with a child is assumed to be in a child’s best interests, providing of course there are no welfare issues why this should not be the case. The Court will determine the facts and consider the Welfare Checklist to help it decide upon what is in the child’s best interests. This Welfare Checklist includes things like the age, physical and emotional needs and wishes and feelings of the child, any harm which the child has suffered, or is at risk of suffering, and will consider the child or children’s age and maturity. In addition, the Court will also look at the capabilities of the parents to meet the physical and emotional needs of the child.
Shared care
One thing it is important to remember: there is a presumption of continued parental involvement by both parents, often referred to as shared care. It is worth bearing in mind that continued parental involvement does not mean a specific division of time: that is, it’s not necessarily a 50:50 arrangement. Again, we must stress that the Family Court will always look at cases on an individual basis, and the best interests of the children will always be at the heart of any and all decisions made. An order made by the Court is legally binding, which is why you should bear in mind that it may be more advantageous to come to an agreement outside of that Court system, so that you, and your ex, can agree a mutually beneficial, and considerate, system of flexibility so that you can both adopt an arrangement that allows for the sometimes unpredictability of real-life commitments.
We are here to help you.
