Questions relating to children whose parents are involved in the divorce process, or indeed any situation in which the children’s interests require to be determined, are of great importance to the U.K. Courts. Since the Children Act 1989, custodial rights are no longer awarded by the Courts, the present position being that the parents of the child are treated as having joint parental responsibility for that child in any event, without the necessity of the Court making an Order formalising the arrangement.. Generally speaking, the Courts prefer a non-interventionist approach, and if the children’s parents can agree the arrangements for the child, the Court will not interfere with those. The Court will however make appropriate Orders if the parents cannot agree such matters.

Orders which can be made by the Court include a Residence Order, which provides for the child to reside at a certain address, namely that occupied by the principal carer. The Court can also make a Contact Order which provides the non-caring parent with contact with the child at times and places to be agreed or decided by the Court. A common pattern for contact is for the non-carer, if suitable accommodation exists for the child to stay overnight, to have the child on alternate weekends, for the weekend, and possibly for one day in the intervening weekend, plus holidays, which can typically be for two weeks in the summer and a week in each of Christmas and Easter. Naturally it is possible for these contact arrangements to be exceeded if the child wishes and is able to benefit from additional contact. The Courts generally prefer the most flexible and liberal regime possible since it is clearly in the interests of the child to have a sound relationship with both parents.

Other Orders which the Court is able to make include a Specific Issues Order and a Prohibited Steps Order. Examples of the former may include questions as to where the child is to be educated, and in what manner, and the Court can, if the parents cannot agree, decide this particular point. The question of which surname the child is to be known by can also be decided by the Court, and the Court can give leave for the child to be taken out of the jurisdiction to live in a foreign country with the principal carer again if this is shown to be in the interests of the child. An example of a Prohibited Steps Order would include an Order that the child should not be brought into contact with a particular third party, or that the child should not be taken to a particular place when contact occurs.

The procedure for bringing applications relating to the children before the Court can be somewhat protracted, and can lead to frustration both for parents and children. It is possible therefore for children matters to be brought before the Court on an interim basis. The Court in deciding all of the issues takes primary account of the interests of the child. If the child is of sufficient age and maturity (commonly from the age of 9 or 10), the Court can take account of the expressed wishes of the child as to the issue which is brought for determination.