**Understanding Informal Custody Arrangements**
When relationships break down and children are involved, many parents choose to make informal arrangements about where a child will live and how much time they will spend with each parent. These arrangements can be flexible and tailored to suit the child’s needs and the parents’ circumstances. In some cases, they can work well for extended periods when both parties communicate effectively and prioritise the child’s welfare.
However, informal agreements do not carry any legal weight in England & Wales. If one parent fails to comply or circumstances change, there is no simple recourse to enforce the terms of the agreement. This lack of legal enforcement can lead to misunderstandings, disputes, and instability, especially for the child. For this reason, many families eventually consider moving from informal to legally recognised custody agreements.
Let us explore how parents in England & Wales can formalise their child custody arrangements with the help of the family justice system, and understand the roles of parental responsibility, consent, written agreements, and ultimately, court orders.
**What Does Parental Responsibility Mean?**
Before delving into legal enforcement, it is crucial to understand who holds parental responsibility (PR). In England & Wales, parental responsibility is a legal term that encompasses the rights, duties, powers and responsibilities that a parent has in relation to their child. It includes decisions about the child’s education, medical treatment, religion, and where the child lives.
Mothers automatically have PR. Fathers usually acquire PR in one of three ways: being married to the child’s mother at birth, being named on the birth certificate (for births registered after 1 December 2003), or by obtaining it through a PR agreement or court order.
Only those with PR are entitled to be involved in making formal arrangements for a child’s upbringing. If an individual lacks PR, they cannot legally share decision-making and may need to apply to the courts if they wish to formalise or change custody arrangements. This often arises in blended families, or where a child is being raised by a grandparent or step-parent. Ensuring all parties have the appropriate legal status is an important first step before formalising any kind of parenting arrangement.
**The Starting Point: An Informal Agreement**
An informal custody arrangement can take many forms. It might be agreed verbally or in writing, with no official oversight. Often such arrangements cover who the child lives with (sometimes known as residence), how often the child sees the non-resident parent, and how holidays and birthdays are handled.
These arrangements can work well initially, especially if both parents communicate openly and there is mutual trust. But informal agreements can also prove fragile. If one parent later decides to change the arrangements unilaterally or if new partners, job relocations or schooling decisions create tension, the limitations of an informal agreement become quickly apparent. There is no legal obligation on either parent to follow the plan. This can leave the more cooperative or vulnerable parent — and the child — without protection.
That is why many parents wish to formalise their arrangements, so that both sides are clear on their responsibilities and so that disputes do not destabilise the child’s routine.
**Creating a Parenting Plan**
A practical and cost-free next step is the development of a written parenting plan. A parenting plan is not legally binding but is often the prelude to formalising arrangements. It helps both parents explore what works best for the child and encourages a comprehensive discussion about logistics, responsibilities and expectations.
In England & Wales, the Children and Family Court Advisory and Support Service (Cafcass) provides a parenting plan template that covers key points such as where the child will live, contact arrangements, school decisions, medical matters, and rules around introducing new partners.
Although it does not carry the force of law, a parenting plan might be referred to by a court in later proceedings as evidence of what was previously agreed or as an indication of each parent’s attitude to co-operation.
It is strongly advised that both parents sign the plan and keep a copy, demonstrating mutual agreement and intention. If either parent is reluctant to sign or frequently deviates from the plan, this may indicate that formalisation through legal structures is necessary.
**The Role of Mediation**
Before heading to court, families are encouraged to try mediation. Family mediation is a voluntary process in which a trained, impartial mediator helps parents reach an agreement. Mediation sessions can take place in person or via telephone or video conference and provide a safe space for both sides to raise concerns.
In many cases, mediation helps parents find a middle ground and can lead to a signed agreement that both contentedly follow. It is also considerably cheaper and quicker than litigation.
Furthermore, under the Child Arrangements Programme in England & Wales, anyone applying to the court for a Child Arrangements Order (which formalises custody and contact) must first attend a Mediation Information and Assessment Meeting (MIAM), unless a specified exemption applies — such as evidence of domestic abuse or urgency of application.
If mediation is successful in reaching an agreement, the next step would be to make it legally binding by applying to court for a formal consent order.
**Applying for a Consent Order**
If parents agree upon the custody terms — with or without mediation — they can apply to the Family Court to have the arrangements approved as a consent order. A consent order is a legal document that sets out the agreed terms, such as where the child will live and what contact the other parent will have.
To apply, parents must complete Form C100 (used typically for child arrangements orders) and a supplementary form called the Consent Order Application form. They must also submit a signed and dated draft of the proposed consent order and pay the court fee.
The court will then consider whether the proposed arrangement serves the child’s best interests, based on principles from the Children Act 1989. The primary consideration is the child’s welfare. The court may also consider factors listed in the ‘welfare checklist,’ such as the child’s emotional needs, educational needs, age and wishes, risk of harm, and how capable each parent is of meeting those needs.
If the judge is satisfied, the consent order will be sealed by the court and becomes legally binding. This means it can then be enforced by the court should either party fail to comply.
**When Agreement Cannot Be Reached: Contested Child Arrangements Orders**
Where consent cannot be reached, either parent can apply to the family court for a child arrangements order. Unlike a consent order, this involves the court actively deciding how the child’s time should be divided between the parents.
These applications are also submitted via Form C100, alongside a MIAM certificate unless exempt. The process involves multiple hearings, often beginning with a First Hearing Dispute Resolution Appointment (FHDRA), and involves Cafcass, which assesses the family situation and reports to the court.
The court puts the child’s welfare above all other considerations and avoids taking sides. It may issue temporary (interim) arrangements during proceedings and, if needed, request reports from Cafcass or other professionals including social workers.
After considering all the evidence, the court will issue a final child arrangements order that spells out where the child is to live and any contact with the other parent. It can also make specific issue or prohibited steps orders to resolve particular disputes — such as a parent taking the child abroad, or which school the child attends.
A child arrangements order is legally binding. If either parent breaches the order, the court can enforce compliance by adding conditions, issuing warnings, or even penalising the parent — including fines and, in extreme cases, imprisonment.
**Changing and Varying Court Orders**
Even after a court order is made, life circumstances can change. A parent may wish to move, or the child’s needs may evolve. In such instances, either parent may apply to the court to vary the order. The court’s approval is again required, and the child’s welfare remains the central consideration.
Alternatively, if both parents agree on a change, they can draft a revised arrangement and seek the court’s approval as a new consent order.
It is unwise to ignore or alter arrangements informally once they have been formalised, as this risks breaching the court order.
**Legal Advice and Representation**
Although parents can handle custody applications themselves, particularly at the consent order stage, it is often helpful to seek legal advice. A solicitor can assist in drafting a consent order that will be acceptable to the court, identify which forms to file, and ensure that all supporting documents are complete.
For contested matters, especially those involving allegations of harm or complexity in contact arrangements, it is advisable to have legal representation. Legal aid is available in limited circumstances, primarily in cases involving domestic abuse or child protection.
Community law centres, Citizens Advice and family law clinics can also provide guidance or help those on low incomes find assistance.
**Conclusion: Ensuring Stability and Clarity for Your Child**
Formalising an arrangement about where your child lives and spends time is one of the most significant actions you can take to build long-term stability. While informal agreements can provide flexibility and harmony in the early stages post-separation, their lack of legal enforceability presents risks that may become pronounced over time.
By utilising parenting plans, engaging in family mediation, and where necessary, applying for consent or child arrangements orders, parents can transform good intentions into legal stability. The system in England & Wales aims to empower parents to reach agreement themselves wherever possible, keeping the court as a safety net when consensus fails.
Ultimately, the goal is not to “win” custody but to ensure that the arrangements serve the best interest of the child — fostering security, routine, and love in both parental homes. Taking the step to formalise an agreement is not an act of mistrust but a commitment to the child’s future wellbeing, supported by law.