What rights do I have as to contact with my children after a divorce or separation?

Our clients often ask us, “What can I do to ensure I can still see my children?” when faced with a breakdown in their relationship. We help provide guidance on how you can keep contact with children after divorce or separation.

What does ‘contact’ mean?

To help with answering this question it can be helpful to first understand what “contact” means and how this is applied by Family Courts in England and Wales. In all cases, the Court’s paramount concern is the child’s welfare.

When parents are sorting out patterns of time to be spent by the children with each parent, there are always significant emotional issues at play. For most parents, the children are the most important factor in a divorce or separation. If one parent has made the choice to leave the family home, the guilt and sense of having abandoned the children can be overwhelming. This can sometimes lead that parent to propose that care of the children be split equally, even if a realistic appraisal of that parent’s work circumstances would indicate this might not be feasible. In these circumstances, the parent who remains in the family home with the children can feel that not only is their personal and financial stability threatened by the breakdown of the marriage, but also that their former partner is threatening to take the children away. This can force both parents to seek assistance from the Court in deciding how contact and residence of the children will be arranged after divorce or separation.

Child Arrangement Order

We no longer use the terms “Contact Orders” or “Residence Orders” in reference to whom a child is to live, spend time, or otherwise have contact with. These have been replaced by a Child Arrangement Order, which regulates the arrangements relating to contact with children after divorce or separation.

There are different ways in which contact with children may take place:

Direct contact: Visiting contact between the child and the person named in the Child Arrangement Order (in other words, in-person time together).
Overnight staying contact: The child spends a night or more with the person named (for example, weekend visits or sleepovers).
Supervised contact: Contact that takes place under the supervision of a third party (used in situations where there may be safety or welfare concerns).
Indirect contact: Keeping in touch through letters or cards, phone calls, or video calls (such as FaceTime or Skype).

In rare circumstances, if the child’s welfare requires it, the Court can order that there be no contact at all.

Who can apply for a Child Arrangement Order?

All mothers have Parental Responsibility automatically. Fathers also obtain Parental Responsibility if they are married to the child’s mother at the time of the birth or are named on the child’s birth certificate. The main role of someone with Parental Responsibility is to provide a home for the child and to protect and maintain them.

If you have Parental Responsibility for a child who does not live with you, you do not automatically have the right to have contact with them. However, the parent with primary care must still keep you informed about important matters that affect the child, including health, living arrangements, religion, education, and general welfare issues.

A child’s parents may have equal and joint Parental Responsibility, but if it is agreed or ordered by the Family Court that a child is to spend time with both parents, it does not necessarily mean the child’s time will be split exactly equally between them. The child may still spend more time at the home of one parent than the other; the Child Arrangement Order will set out in detail how the child’s time is divided.

A child’s parent can always apply for a Child Arrangement Order, as can a child’s step-parent if they have Parental Responsibility. Other people (such as grandparents or other close relatives) may also apply if certain conditions are satisfied or if they have permission to do so from the Family Court.

If it is not possible for the parents to reach an agreement about when the children spend time with each parent or where they should live, you can apply to the Court for an order. Before you can do this, you are now required to attend a meeting with a mediator to see whether mediation might be suitable as an alternative to going to court. In these circumstances it is advisable to seek legal help.

How does the Court decide?

The first concern of the Court is the child’s welfare, as set out in the Children Act 1989. The law provides a list of factors (often called the “welfare checklist”) that the Court will consider when making its decision. These factors include:

The wishes and feelings of the child, considering their age and understanding.
The child’s physical, emotional and educational needs.
The likely effect on the child of any change in their circumstances as a result of the Court’s decision.
The child’s age, sex, background, and any other characteristics the Court considers relevant.
Any harm the child has suffered or is at risk of suffering.
The capability of each parent (and any other relevant person) to meet the child’s needs.

The Court must also be satisfied that making an order is better for the child than making no order at all. At the same time, the focus is on upholding the child’s right to have a relationship with both parents, so long as this is in the child’s best interests.

Matters relating to children upon separation depend overwhelmingly on the specific circumstances of each family. There are no strict rules or formulas in these cases: the Court’s approach is that each child is an individual, and any arrangements must be made in that child’s best interests.

What about contact arrangements during holidays and festive periods?

Festive periods and school holidays are often times when disputes can become more likely. Both parents naturally want to spend special moments – such as Christmas or other significant celebrations – with their children. This can make it challenging for separated parents to agree on who has the children and when, adding stress to what should be a joyful time and potentially straining an already fragile co-parenting relationship.

Some families are able to agree on holiday arrangements relatively easily, especially if they already have a Child Arrangements Order that covers festive periods. In those cases, the order likely outlines how the children’s time is divided during holidays, which helps avoid confusion. If no prior agreement exists, early preparation is key. We strongly recommend starting discussions with the other parent well in advance of any special occasion or school break. Early negotiations give both sides plenty of time to iron out disagreements, coordinate with extended family plans, and ensure that everyone (especially the children) knows what to expect. It’s important to keep these discussions child-focused, taking into consideration the children’s needs and welfare above all else.

There is no single “right” way to split time over holidays; what works best will depend on the family. However, some common arrangements for sharing the festive period include:

Alternating key days or years: Parents might alternate who has the children on pivotal days. For example, one parent may have the children on Christmas Day one year while the other has them on Boxing Day, and then swap the arrangement the next year. Alternating the entire holiday period each year is another approach some families use to ensure fairness.
Splitting the holiday period: Instead of one parent having all of the important days every year, many families divide the festive season so that the children spend part of the holiday with each parent. For instance, the normal weekly schedule may be adjusted or “suspended” over the Christmas week so that each side of the family gets quality time with the children during that period.
Sharing other special occasions: Holiday arrangements often extend to occasions like New Year’s Eve and New Year’s Day (or other meaningful events). Parents might agree to alternate these events each year or find a compromise that allows the children to enjoy traditions with both sides of the family.

Every family’s situation is different. Factors such as the distance between households, travel logistics, work schedules, and the involvement of new partners or step-siblings (as well as grandparents and other extended family) will influence what arrangement is most practical and beneficial. The key is to remain flexible and focus on what is best for the children’s happiness and stability. Courts generally encourage arrangements that allow children to enjoy meaningful time with both parents during special occasions. In fact, if a court were to get involved, it would aim to ensure fairness, for example, by supporting an alternating holiday schedule, provided that this is in the child’s best interests.

If you and your co-parent cannot reach an agreement about a holiday or festive period, there are steps you can take to resolve the situation:

Seek legal advice early: Consult a family law solicitor for guidance. A legal professional can help clarify what might be considered a reasonable compromise and can negotiate on your behalf if needed. Getting advice early on will also give you a sense of what the Family Court would likely consider fair in your circumstances.
Consider mediation: An independent mediator can facilitate discussions between you and the other parent in a neutral setting. Mediation allows both parents to voice their concerns and work toward a voluntary agreement with the mediator’s help. While a mediator won’t give specific legal advice to either side, they will help keep the conversation productive and child-centred, often enabling each parent to understand the other’s point of view.
Court intervention as a last resort: If all else fails, you can apply to the Family Court for a Child Arrangements Order to set out holiday contact terms (under Section 8 of the Children Act 1989). Court involvement should be the last resort – not only because the process can be lengthy and stressful, but also because judges prefer parents to reach agreements themselves whenever possible. Be aware that making a court application close to a major holiday may mean it won’t be resolved in time for that holiday. For example, the Family Court tends to be extremely busy in the run-up to Christmas and generally does not view seasonal contact disputes as urgent matters. This is why planning ahead is so important; leaving decisions to the last minute can lead to disappointment if the legal route cannot provide a timely solution.

By planning holiday arrangements well in advance and keeping your children’s best interests at the forefront, you can reduce the likelihood of disputes and ensure that festive periods remain a happy and memorable time for everyone involved.

Speak to a solicitor regarding contact with children after divorce or separation

Should you have any questions or need assistance in respect of arranging contact with your children after a divorce or separation, including help with holiday contact arrangements, please do not hesitate to contact our Family Law team by emailing family@dtmlegal.com. You can also visit our Arrangements for Children page to learn more about the services provided by DTM Legal.

Helen Davies