In England and Wales, parents’ rights regarding their children are governed by the concept of parental responsibility. This is a legal term defined by the Children Act 1989 and refers to the rights, duties, powers, and responsibilities a person has in relation to a child and their upbringing. Parental responsibility includes making decisions about a child’s education, medical treatment, change of name, religion and general welfare.
What rights do parents have under the law of England and Wales?
Mothers automatically have parental responsibility. Fathers are given the same if they are married to the mother at the time of the child’s birth, or are named on the child’s birth certificate. It is also possible for a father to acquire parental responsibility through a parental responsibility order.
It is important to note that separation or divorce does not remove parental responsibility, and it is rare for a parent to ever lose parental responsibility.
When parents separate and cannot agree on how their child will spend time with each parent, the family court may be asked to intervene. This is often where questions around how to get sole custody arise.
Family solicitor and accredited mediator Charlotte Millard has written this blog, answering some of the most commonly asked questions about custody law.
Interestingly, the term “custody” is no longer used in the law of England and Wales. The courts moved away from terminology such as “custody”, “residence” and “access” to encourage a more child-focused and less adversarial approach. Today, decisions about where a child lives and who they spend time with are recorded in a Child Arrangements Order (if required).
Despite this change, many parents still talk about “sole custody” and “full custody”, which is why it is important to understand what they mean in practice – and we will refer to these terms throughout the blog below.
What is sole custody?
The term “sole custody” is commonly used to describe a situation in which a child lives primarily with one parent following their separation.
Legally, this arrangement is usually formalised through a Child Arrangements Order stating that the child “lives with” one parent. This is sometimes referred to as a “Lives With Order”. This type of living arrangement can also be agreed upon between parents with no need for a formal order.
Having a Lives With Order does not mean the other parent automatically loses parental responsibility, or that they have no right to see the child. Neither parent is granted decision-making power.
Instead, it confirms the child’s main home while allowing the court to make appropriate arrangements for the child to see both parents and for decision-making to be shared.
Who typically gets sole custody?
There is no automatic rule about which parent a child should live with. Every case is unique and decided on its own specific individual facts.
The court’s paramount consideration is always the child’s welfare. When deciding who a child should live with, the court considers the welfare checklist from section 1 of the Children Act 1989, which includes:
- The child’s wishes and feelings (depending on age and understanding)
- The child’s physical, emotional and educational needs
- The likely effect of any change in circumstances
- The child’s age, sex, background and any characteristics which the court considers relevant.
- Any risk of harm
- Each parent’s ability to meet the child’s needs
The focus is always on what arrangement will best support the child’s wellbeing, and this will always be different depending on the specific circumstances and the individuals involved.
Can a father get full custody?
Family law in England and Wales is supposed to be gender-neutral. Fathers can, and do, become the parent a child lives with under a child arrangements order. This can be by agreement or as a result of a court application.
Rather than focusing on a parent’s gender, if a judge is asked to decide on arrangements for a child, they will consider whether each parent’s proposed arrangements meet the child’s needs and promote the child’s welfare. Each case is decided on its own individual facts.
Fathers facing separation or divorce often have specific questions and concerns about their rights, and this is an area where tailored legal advice is particularly important.
Is a Lives With Order the same as full custody?
“Full custody” is another term that has no legal meaning in England and Wales. In practice, people usually use it to mean that a child lives with one parent full-time.
A Lives With Order is the closest legal equivalent, but it does not give one parent exclusive control over the child. Even where a child lives with one parent:
- The other parent will generally still have parental responsibility and should be consulted over major decisions in the child’s life
- The court will usually encourage an arrangement that allows a child to spend time with both parents, unless it is not safe
- Major decisions may still require agreement from both parents, or even court approval
Misunderstandings about “full custody” can lead to unrealistic expectations and disagreements between parents, so legal advice should be sought if there are queries or concerns about an individual situation.
How to apply for full custody (a Lives With Order)
Although many people refer to applying for “full custody”, the correct legal process is an application for a Child Arrangements Order.
In most cases, parents are expected to attend a Mediation Information and Assessment Meeting (MIAM) before applying to court, unless an exemption applies (for example, in cases involving domestic abuse).
If mediation is unsuccessful or unsuitable, an application can be made to the Family Court using a C100 form. The court process may vary depending on several factors (which your solicitor will explain), but in general will involve the gathering of information so that the judge can make a decision about the time a child should spend with each parent, if the parents are not able to agree on this themselves.
How we can help
Every family’s situation is different, and outcomes depend on many factors. Getting clear legal advice at an early stage can help protect your child’s interests and reduce conflict between parents.
At Scott Bailey, our specialist family solicitors are committed to securing the best possible outcome for you and your family. If you are separating and are concerned about where your child will live, or you are considering applying for a Lives With Order, obtaining clear, expert legal advice at an early stage can make a significant difference.
Our experienced team will guide you through every aspect of parental responsibility, child arrangements and, where necessary, court applications. We provide practical, strategic advice tailored to your circumstances, supporting you at each step and helping you work towards arrangements that are in your child’s best interests and provide stability for the future.
