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Talks Children's Law



My husband and I are splitting up, and he is threatening to have our children live with him. Can he do this?


This is a common threat for a husband to make against a wife on divorce and separation. What used to be called custody is now known as residence, and if there is a dispute about residence you can make an application to the court under the Children Act for a Residence Order. This would be an order of the court confirming that the children would live with you.

Any Judge or Magistrate who sees the application must decide what is best for the children. At the beginning of a case the court will want, wherever possible, to make sure that the status quo is upheld. In other words if you are the main carer for the children, at least whilst it is being investigated, the court will want them to remain with you. The court will ask an organisation known as CAFCASS (Child and Family Court Advisory Support Service) to investigate the case and to tell the Judge or Magistrate what is in the children’s best interests.

The court looks at various factors including the wishes of the children, what their needs are, how capable everyone is of meeting those needs, as well as risk of harm and, what is known as, risk of change in circumstances.

Of these the most important are children’s wishes, the risk of harm and risk of change in circumstances.

As a child gets older his or her wishes become more important, and as a general rule of thumb the court will take the view that an average child 12 years of age has sufficient understanding to determine where he or she lives.

If your children are younger than this, say 4 or 5, their views are not as determinative, and the court then looks to ‘risks of change in circumstances’. This means that there is a huge presumption that the children will remain living with the parent who has given them the majority of their care. We all know that disrupting a child’s routine is unsettling. Therefore, in the case of young children the court will nearly always decide that they should continue to live with the parent who has cared for them most of the time. If you have been the children’s main carer you may well succeed in ensuring that the children continue to live with you.

When there are young children the principle behind the ‘risk of change in circumstances’ can be undone by risk of harm. The court will have to balance the risk to the children of disrupting their routine against any harm to the children (physically or emotionally) by the main carer. However, it is very rare for young children to be removed from their main carer.

Therefore you will be successful in your application if the children are old enough (12 +) to say they want to live with you. If they are not old enough you will be successful if you are their main carer and are not a risk of harm. You would need to consider making an urgent application to the court to obtain the order with a view to putting an end to your husband’s threats.