It has been hotly disputed whether there is, or should be, a presumption that children would benefit from living with (and being primarily raised by) their mothers rather than their fathers where the two are separated. In the past, it was often argued that babies and girls should live with their mothers, and boys with their fathers. More recently however, it has been made clear (in Re A 1998) that although there is still a presumption that babies should live with their mothers (for the benefits of breastfeeding), regarding older children, there is no presumption in favour of mothers or fathers.

If parents cannot agree about with whom the children should live and/or how their time should be spent and with whom, either parent can apply for what is known as a child arrangements order. A child arrangements order would deal with the arrangements such as with whom a child should live, should there be shared care and generally the time to be spent with each parent. The courts’ focus when deciding is what is in the children’s best interests. When considering this the court will look at the welfare checklist, these are factors the court will consider:

  1. The ascertainable wishes and feelings of the child concerned (considered in the light of his/her age and understanding).
  2. The child’s physical, emotional and educational needs.
  3. The likely effect on him/her of any change in her circumstances.
  4. The child’s age, sex, background and any characteristics of his/hers which the court considers relevant.
  5. Any harm the child has suffered or is at risk of suffering.
  6. 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 his/her needs.
  7. The range of powers available to the court.

Regardless of whom the child lives with however, contact with the parent the child does not live with, where appropriate, is vital, and there are various psychological benefits of children having contact with both parents.

The benefits are as follows:

  1. It avoids the child feeling rejected by the parent;
  2. It enables the parent and child to maintain a bond and relationship;
  3. Contact may dispel erroneous fantasies that the child could have about the parent;
  4. Contact helps the child develop or retain a sense of identity;
  5. Contact can help the child understand the parental separation;
  6. It can ensure the child retains contact with the wider family of the parent, and;
  7. It can help the child feel free to develop relationships with a step-parent.

These benefits are affected, however, by the frequency, quality and nature of the contact with the parent the child does not live with. For the parent the child does not live with to make the most of their contact time, they should try to plan activities in advance, even if they’re simply activities such as arts and crafts or going on a walk.

For further information or advice on child arrangements, or any other aspect of relationship breakdown or divorce, please contact our specialist family team on 01753 279046 or email michal.stepniak@bpcollins.co.uk.

You can also follow our family team's Instagram page @familylawyers_bpc


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