This article was originally published on leading sports law website LawInSport in August 2022.
This is the fourth in a series of articles exploring key family law issues facing athletes over the course of their careers. This article considers the arrangements for children on the breakdown of a relationship (married or otherwise). This can be particularly important for athletes who live international lives and work or train away from home for long periods of time. Child arrangements can often be a source of great anxiety for parents. This article answers some of the most common questions:
When a relationship ends, one of the first questions couples who share children ask themselves is ‘who will get custody of the kids?’. Many people are surprised to learn that the English legal system no longer uses the term ‘custody’. Instead, it is concerned with the arrangements for a child, i.e., where a child will live (what used to be referred to as residence) and how and when they will spend time with each parent (what we used to call contact). Whatever the legal terms are, the important question remains: where will our children live when we separate and who decides this if we cannot agree?
The people best placed to decide the living arrangements for children following the breakdown of a relationship are you as parents. You know your family life and your children better than any external third party.
There is no hard and fast rule about what arrangements are best for children of separated parents because all families and children are different. Relevant factors to consider may be a child’s age, where they go to school, where their parents live, their parents’ work commitments and, particularly for older children, their wishes and feelings about where they want to live. Contrary to popular belief, the English legal system shows no bias towards mothers or fathers, and it is widely accepted (and in fact enshrined in the Children Act 1989)1 that, unless there is evidence to the contrary, a child will benefit from continued involvement from both their parents in their lives. What arrangements this translates to ‘on the ground’ depends on the lifestyle of an individual family. There is no presumption of ‘equal time’ with each parent as there is in some countries, but a presumption (rebuttable if there are any safeguarding risks) that the involvement of each parent will protect the child’s welfare.
Child arrangements can be complex for families where one or both parents are required to travel extensively for work, as is often the case for sportspeople. Perhaps prior to separation, particularly if the children are young and have not yet started school, the family may have travelled together, but this will no longer be the case. In these circumstances, a shared care arrangement where children move regularly between their parents’ two homes may be difficult to manage, and parents may find they need to give more thought to the future arrangements. Athletes and sportspeople may find they need to have more flexibility built into the child arrangements following separation and for the arrangements to be re-assessed in a sudden change of circumstances, for example an injury, club move or retirement. Special arrangements can be put in place by court order (if it is not possible to agree with the other parent) to enable the children of athletes to attend important matches, or club celebrations where appropriate.
It is common, in the absence of agreement, for separated parents to need some assistance in agreeing the child arrangements – and this should not be viewed as a negative. There is a transition that a family must go through following separation to adjust to co-parenting. Support from specialist family practitioners can be invaluable in helping a family navigate this tricky time.
A first step, which we often recommend, is sitting down with your former partner and agreeing a parenting plan. This can be a great way to agree an aligned approach on how you will parent the children when they are spending time with each of you, how you will communicate with each other, how you will introduce new partners to the children and how you will deal with important decisions such as education, religion and medical decisions. Parents can also agree on how they will handle any disputes that may arise between them in the future in respect of their children in such a plan, such as choice of future schools, or even how they will resolve any dispute about the future child arrangements should a move be required for an athlete’s career.
A second step could be to seek the assistance of a specialist family mediator. This is an entirely confidential process, and the mediator will help you hear each other’s points of view and try to reach a child focused agreement that works for your family. They can also help iron out any issues which may have arisen when drafting a parenting plan.
If you and your partner have not been able to agree the arrangements for your children following separation and mediation has broken down, you can make an application to the family court for a Child Arrangements Order2. The English court has jurisdiction to make orders in respect of a child who is habitually resident in England and Wales, even if they are not physically present at the time (we address the complex area of international children law in the fifth article in this series).
Before making an application in respect of the child arrangements, unless you are able to satisfy one of the exemptions, it is necessary to have discussed the case with a mediator who will confirm that your case is not eligible for mediation, if appropriate. If you enter into court proceedings, you and your ex-partner will both be required to file evidence explaining to the court what you think the child arrangements should be and why. A CAFCASS (Children and Family Court Advisory and Support Service) officer will be involved and will assist the court in determining the application, although their views are not determinative. The CAFCASS officer will carry out safeguarding checks and interview both parents. The voice of a child also plays a role in the court’s decision-making process and, depending on their age and understanding, the CAFCASS officer may interview the child(ren) and report to the court what their wishes and feelings are about where they want to live and how they want to spend time with each parent. After collating all the information, the CAFCASS officer deems necessary, they will make a recommendation to the court about what they think should happen.
When a court is considering the application, its paramount consideration is the welfare of the child(ren) and what outcome will be in the child(ren)’s best interests. The court is guided by a set of criteria called ‘the Welfare Checklist’3. This includes, but is not limited to, the ascertainable wishes and feelings of a child, their physical, emotional and educational needs, the effect on them of any change in the current circumstances, their age and how capable each parent is of meeting their needs4.
If your case proceeds to a final hearing without an agreement being reached, you and your former partner will be required to attend court and give oral evidence. This will usually involve both parties being represented by barristers, who will present their client’s case to the judge, and cross examine the other party. The judge will listen to both parties and make a final determination on the child arrangements which will be recorded in a Child Arrangements Order.
There is a move towards increased transparency and ‘open justice’ in the family courts. Family court hearings are currently conducted in private, but it is expected that the press and legal bloggers will soon be permitted to attend hearings in the family court and report contemporaneously. The privacy of children is still to be protected and published judgments in Children proceedings will be anonymised. However, the increased calls for transparency may understandably be of concern to high profile sportspeople whose private life may garner unwanted media interest. Arbitration is an entirely private and confidential alternative to court proceedings that parties can opt into to. The applicable law remains the same, but the parties will privately instruct and pay for a qualified Children Arbitrator who will determine their dispute instead of a family court judge, and instead of a CAFCASS officer, the parties’ will privately instruct an independent social worker. This may be a preferable alternative for many athletes and sportspeople.
Parenting after separation is not easy and a relationship breakdown without conflict is rare. Negative feelings about the cause of the relationship breakdown can often find their way into a co-parenting relationship, even with the best of intentions. In these circumstances, the support from a counsellor, mediator or family law solicitor can help you navigate this difficult transition.
Please note that this article is for your information only. Please seek legal advice if you are uncertain about any points above.
1† Section 1(2A) of the Children Act 1989 (ChA 1989), inserted by Section 11 of the Children and Families Act 2014 (CFA 2014),
2† Section 8 Children Act 1989
3† Section 1(3) Children Act 1989
4† This blog does not address risk of harm or safeguarding concerns which are part of the Welfare Checklist