When relationships break down, one of the most emotionally charged aspects of separation involves decisions around the care of children. Understanding child custody rights is essential for any parent or guardian navigating this process. In England and Wales, the term “custody” has evolved and is now legally referred to as “child arrangements,” but the principles remain the same. Parents often ask, “what do courts consider in custody cases?” – and the answer lies in a range of statutory factors centred around the child’s welfare.
This article will explore what English and Welsh courts consider when determining family court child custody arrangements, offering clarity to those facing this challenging chapter in their lives.
Although commonly referred to as child custody, the law in England and Wales now uses the term child arrangements order under the Children Act 1989. This legal order outlines who a child lives with, spends time with, and has contact with.
Importantly, both parents usually retain parental responsibility, regardless of who the child lives with.
The courts in England and Wales operate under one guiding rule: the child’s welfare is paramount. This principle is enshrined in Section 1 of the Children Act 1989 and governs all decisions relating to child custody law.
To determine what’s in the child’s best interest, courts apply the Welfare Checklist, which includes:
In determining how custody is decided in England and Wales, the court scrutinises each parent’s ability to provide a stable, nurturing environment. The focus isn’t really on financial capability but rather on:
The court may request input from Cafcass (Children and Family Court Advisory and Support Service), who conduct home visits and interviews to assess parenting capacity.
There are several outcomes to a family court child custody case:
Each arrangement is tailored to the child’s needs and shared care does not necessarily imply a 50/50 split.
During a custody battle , courts often face conflicting testimony. Specific factors that influence the outcome include:
Courts aim to ensure children maintain meaningful relationships with both parents – unless there are compelling reasons not to.
Before attending court, most separating parents are required to attend a Mediation Information and Assessment Meeting (MIAM).
Benefits of mediation:
Case example: Anna and James, divorced parents of two children aged 9 and 12, could not agree on who the children should live with. Anna worked from home and wanted full residence, while James, who lived nearby, argued for shared care.
After Cafcass assessments and input from the children, the court granted a Shared Care Order. The children now live with each parent on alternate weeks.
“In situations which do not involve abuse or neglect, it is generally in the best interests of children to have significant involvement with both of their parents.”
— Lucy Simpson, Head of Family & Children, Fosters Solicitors
For professional support, explore our Family Law Solicitors services.
Pros:
Drawbacks:
The future of UK child custody law is increasingly focused on flexibility and co-parenting. Digital tools are making shared care more practical.
Recommendations:
For more guidance, visit: Citizens Advice – Child Contact and Residence
What do courts consider in custody cases in England and Wales?
Courts consider the child’s welfare above all else, guided by the Welfare Checklist in the Children Act 1989. This includes the child’s wishes and feelings, their needs, risk of harm, and each parent’s ability to meet those needs.
Who gets custody of a child in England and Wales?
There is no automatic preference for mothers or fathers. The court bases decisions on the child’s best interests, which may lead to sole or shared care, depending on the circumstances.
What is a child arrangements order?
A child arrangements order sets out who a child will live with and how much time they will spend with the other parent. It replaces the old terms ‘custody’ and ‘access’.
Can a child choose which parent to live with?
A child’s views are considered, especially from age 12 upwards, but the final decision lies with the court based on the child’s welfare.
Do both parents have parental responsibility?
Yes, in most cases both parents retain parental responsibility regardless of living arrangements, unless a court orders otherwise.
When parents or other relatives cannot agree arrangements in respect of children that they care for, or with whom they wish to see – there is often a need for urgent legal advice and support. Our experienced and empathetic Family Law team aims to deliver child-focused solutions to the following types of child-related issue:
If a dispute cannot be settled through negotiation or mediation, then our specialists will represent you in an application to the court to resolve the matter. If you require more advice about disputes involving children, please contact us for a confidential no obligation chat.
This article was produced on the 23rd May 2025 for information purposes only and should not be construed or relied upon as specific legal advice.