Practical arrangements for children
It's up to the two parents to agree any arrangements for the children, including where they live, how often they see each parent and where they go to school, etc.
The legal ability to make decisions for children is called “parental responsibility”. If two parents cannot agree, it can be important to check that both parents have parental responsibility, particularly where they have not been married or in a civil partnership. If necessary, parental responsibility can be granted by way of a formal parental responsibility agreement or a court order.
There is no such thing as “custody” or “access”, despite the constant references to them. Instead, the focus is on the practical child arrangements, including who a child lives with and who a child spends time with.
The Family Court will not get involved in the arrangements for the children’s care unless there is a risk of harm or the parents really cannot reach agreement. Wherever possible, court should be a last resort. Other options include mediation, negotiation through solicitors, parental co-ordinators or therapeutic support.
Where appropriate, children should be given the opportunity to express their own views, including any concerns they may have, regarding the arrangements for their care, although the responsibility for the decision making lies with the parents unless the children are old enough and mature enough to make their own decisions.
Where parents are apart in principle, and they need someone else to determine the outcome, arbitration can be a much quicker and more flexible process than court proceedings.
Financial claims for children
Although cohabitees cannot claim maintenance for themselves when the relationship breaks down, they can claim financial support for children.
If the children spend the majority of the week with one parent, the other parent will have a responsibility to pay child maintenance. This can be agreed by the parents or, in default of agreement, the starting point in most cases is a claim to the Child Maintenance Service or CMS (previously called the Child Support Agency). They will work out how much maintenance is payable, based on a standard formula, taking into account various factors including the number of children, the payer’s income (with specific rules as to how this is calculated in practice) and the amount of overnight stays the children have with the payer.
In addition to claims made through the CMS, the Family Court can make additional financial orders for children, commonly known as “Schedule 1 claims”. These can include additional “top-up” maintenance where the payer earns more than £156,000 per year, education costs, potentially unlimited lump sums (e.g., to purchase a car or to pay for the furnishing of a house for the benefit of the children) and a housing fund to enable the main carer to provide a house for the children whilst they are still minors or in full time education. The housing fund will usually be provided by way of a property settlement, which means that the property (or the funds used to purchase it) will revert to the payer on specified trigger events.
Schedule 1 claims can be agreed, whether directly between parents, through solicitors or in mediation, or they can be determined by the court or within arbitration.