Written by: Farzana Naz, Director / Head of Family
Reviewed by: Saracens Solicitors Family Law Team
When a relationship breaks down, the wellbeing of any children must remain at the centre of every decision both parents make. In England and Wales, the law requires courts to treat the welfare of the child as the paramount consideration and the same principle should guide parents’ own negotiations. This guide explains the different types of child arrangements orders, how child maintenance works, the rules around moving abroad with children, and what is required when taking children on holiday.
Types of Child Arrangements Orders
A Child Arrangements Order (CAO) is a court order under section 8 of the Children Act 1989 that sets out with whom a child is to live, spend time, or otherwise have contact. It replaced the old-style residence and contact orders in 2014, though the practical effect is similar.
Lives with orders
A ‘lives with’ order specifies the parent (or other person) with whom the child is to live. This can be:
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Sole lives with: the child lives primarily with one parent. The other parent will typically have a separate ‘spends time with’ arrangement.
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Shared lives with: the child spends substantial time living with both parents. Note that this is not necessarily a 50/50 split — courts look at what is practical and in the child’s interests, not at achieving arithmetic equality.
A ‘lives with’ order does not affect parental responsibility both parents with parental responsibility retain it regardless of with whom the child lives.
Spends time with orders (formerly contact orders)
A ‘spends time with’ order sets out the arrangements for the child to spend time with the parent they do not live with. This can specify:
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Regular weekly or fortnightly overnight stays
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Holiday contact arrangements, including school holidays and Christmas
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Indirect contact — letters, cards, telephone, or video calls where direct contact is not currently appropriate
Orders can also include conditions and prohibitions for example, restricting a parent from removing the child from England and Wales, or requiring contact to be supervised.
Specific issue and prohibited steps orders
These are orders that resolve a specific dispute or prohibit a specific step being taken in relation to a child. Common examples include:
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A specific issue order permitting one parent to take the child on a foreign holiday, or determining which school the child will attend
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A prohibited steps order preventing one parent from removing the child from the jurisdiction, or restricting contact with a named individual
When does the court become involved?
Most parents are able to agree child arrangements without going to court either directly or through mediation. Court applications should be a last resort, and in most cases parents are required to attend a Mediation Information and Assessment Meeting (MIAM) before making an application unless an exempt applies. The court will always look at what arrangements are in the best interests of the child, applying the welfare checklist set out in the Children Act 1989, which includes the child’s wishes and feelings, their physical and emotional needs, and the capability of each parent to meet those needs.
How Does Child Maintenance Work After Separation?
Child maintenance is the financial support paid by the parent who does not live with the child (the paying parent) to the parent who does (the receiving parent). It is separate from any spousal maintenance or financial settlement between the parents.
The Child Maintenance Service (CMS)
The Child Maintenance Service is a government agency that calculates and, where necessary, collects and enforces child maintenance. The CMS uses the paying parent’s gross income as the basis for its calculation, applying set percentages depending on the number of qualifying children and the amount of overnight contact they have with the paying parent.
As a rough guide, the standard CMS rate is:
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12% of gross weekly income for one child
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16% for two children
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19% for three or more children
These percentages are reduced where the paying parent has the child staying overnight for a significant number of nights per year, and further reductions apply where the paying parent has other children in their household. The CMS can also take account of other income, assets, and lifestyle in certain circumstances through its variation scheme.
Family-based arrangements and consent orders
Parents who agree on child maintenance between themselves can operate a family-based arrangement without involving the CMS. However, such agreements are not legally binding and either party can refer the matter to the CMS at any time.
It is possible to include a child maintenance agreement in a consent order, but only in limited circumstances and such orders typically lapse after 12 months if either party then applies to the CMS. The CMS has jurisdiction over child maintenance that cannot be ousted by the court in most cases, so court-ordered child maintenance is generally only made by consent or in international cases.
What if a parent refuses to pay?
The CMS has extensive enforcement powers including attachment of earnings orders, deduction from bank accounts, removal of driving licences, and even committal to prison in cases of persistent non-compliance. If the paying parent is employed, the CMS can instruct the employer to deduct maintenance directly from salary.
Moving Abroad with Children After Separation
One of the most legally significant decisions a parent can make after separation is to relocate abroad with the children a step known as international relocation or ‘leave to remove’. It has life-changing implications for both the children and the left-behind parent, and it cannot be done without legal authority.
The legal position
Where both parents have parental responsibility, neither parent may permanently remove a child from England and Wales without either the written consent of all those with parental responsibility, or a court order permitting the relocation. Removing a child without consent or authority is a criminal offence under the Child Abduction Act 1984 and constitutes international parental child abduction.
Applying for leave to remove
If the other parent refuses to consent to relocation, the relocating parent must apply to the Family Court for a specific issue order granting leave to remove. This is one of the most fiercely contested applications in family law. The court will consider the welfare of the child as paramount, and will weigh a wide range of factors including:
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Whether the application is genuine and motivated by the child’s interests, not a desire to limit the other parent’s contact
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The depth and quality of the child’s relationship with the left-behind parent
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The practicability of maintaining a meaningful relationship with the left-behind parent from abroad, including the availability and cost of flights and the other parent’s means
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The educational, social, and emotional impact on the child
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The impact of refusal on the relocating parent particularly where that parent is the primary carer and their wellbeing is closely linked to the child’s
Each case is highly fact-specific and the outcomes are genuinely unpredictable. Both parents should take specialist legal advice well before a formal application is made early dialogue and a well-developed proposal for maintaining contact can significantly influence the outcome.
Habitual residence and jurisdiction
Once a child has been lawfully relocated abroad, questions of jurisdiction over subsequent disputes become more complex. The country in which the child is habitually resident will usually have jurisdiction over future child arrangements proceedings. This is a further reason to take legal advice before agreeing to or consenting to any relocation.
Taking Children on Holiday
Short holidays are distinct from permanent relocation but still have legal rules that parents frequently misunderstand or overlook.
Within England and Wales
A parent with a ‘lives with’ order can take the child on holiday within England and Wales without the other parent’s consent, unless a prohibited steps order or other court order restricts this. It is, however, courteous and good practice to inform the other parent of travel plans, particularly where they affect contact arrangements.
Travelling abroad
Any travel outside England and Wales requires the written consent of all those with parental responsibility, unless there is a court order specifically permitting foreign travel. This applies even to short trips across the border into Scotland, as parental responsibility law differs. More practically, it applies to all foreign travel.
Written consent should clearly specify:
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The destination country and travel dates
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Accommodation details
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Emergency contact information
Where the other parent unreasonably refuses to give consent for a routine holiday for example, a week at a European beach resort with no welfare concerns the travelling parent can apply to the court for a specific issue order. Courts generally take a dim view of parents who obstruct reasonable holidays as a form of leverage in wider disputes.
Where a Child Arrangements Order is in place
If an existing order is silent on foreign travel, neither parent can assume consent is implied. It is best practice to include holiday provisions including a mechanism for agreeing annual foreign travel within the Child Arrangements Order itself, or in a separate parenting plan that both parties sign.
Passports
A child’s passport can be applied for by any person with parental responsibility. Where there is a concern that the other parent may apply for a passport and remove the child from the jurisdiction, a prohibited steps order can prevent this and the Passport Office will honour such orders if notified. In urgent cases, the court can also order that a child’s passport be surrendered.
Frequently Asked Questions / Questions & Answers
At what age can a child decide which parent to live with?
There is no fixed age in English law at which a child’s wishes become determinative. The court will consider the child’s wishes and feelings as one factor amongst many, with weight increasing as the child matures. In practice, the wishes of a competent teenager are given considerable weight, but a child cannot simply choose and have that choice automatically binding on the court.
Can child maintenance be reduced if I have the children more?
Yes. The CMS calculation includes reductions based on the number of overnight stays the paying parent has with the child per year. If contact has increased since maintenance was last assessed, you can ask the CMS to carry out a new calculation. A reduction of approximately one-seventh per 52-104 overnight stays applies, with higher reductions at greater levels of overnight contact.
What happens if the other parent takes the child abroad without my consent?
This is a potentially criminal matter. You should contact a solicitor immediately. If the child has been taken to a country that is a signatory to the Hague Convention on International Child Abduction, a return application can be made and in many countries the process is relatively swift. If the country is not a signatory, the legal process is more complex and expensive. Speed is critical.
Can a Child Arrangements Order be varied?
Yes. Any party to a Child Arrangements Order can apply to vary it if there has been a significant change in circumstances. The court will again apply the welfare checklist and decide what arrangements are now in the best interests of the child. Orders are not permanent they are designed to reflect the child’s needs at the time, and children’s needs change as they grow.
What if my ex refuses to comply with the Child Arrangements Order?
Breach of a Child Arrangements Order is a serious matter. You can apply to the court to enforce the order, and the court has a range of powers including fines, community service requirements, and in persistent cases, committal for contempt of court. A Warning Notice is automatically included in all Child Arrangements Orders made on or after 8 December 2008, which means the court can enforce immediately without the need for a further application for penal notice.
How is parental responsibility affected by a Child Arrangements Order?
A Child Arrangements Order does not affect parental responsibility. Both parents with parental responsibility continue to share it regardless of who the child lives with. This means both parents retain the right to be involved in major decisions about the child’s life — including education, medical treatment, and religion — and should be consulted accordingly.
