When clients come to us because of a child arrangement dispute, it is often the first time that they have needed a family law solicitor or experienced any form of interaction with the Court. It is therefore understandable that they have many questions about the Court process as well as what any outcome is likely to be. Below we answer the most frequently asked questions when it comes to child arrangements.
What is a Child Arrangements Order?
A Child Arrangements Order can detail:
- Where a child lives;
- When a child spends time with each parent;
- When and what other types of contact take place, such as phone calls;
- Whether something specific needs to happen, such as a child being returned or where a child should go to school;
- Whether something specific needs to be stopped, for example, if one parent is threatening to remove a child
Child Arrangement Orders replace the old ‘residence’ and ‘contact’ orders (and indeed the even older custody and access orders). Child Arrangement Orders are made under powers granted by Section 8 of the Children Act 1989.
How long does a Child Arrangements Order take?
How long the process to obtain a Child Arrangements Order takes can vary greatly and depends on a number of factors, such as how many issues there are to resolve. The CAFCASS officer will make initial enquiries and submit their report to the Court. This then tends to influence how long matters take. A more detailed look at the Court process can be found here.
How much does a Child Arrangements Order cost?
There is an application fee of £215.00* for processing an application for a Child Arrangements Order. During the course of proceedings, additional expenses may also be incurred if expert reports or specialist testing is ordered.
*Court fee correct at time of writing.
What is the process of getting a Child Arrangements Order?
There are several alternative dispute resolution methods that can be considered before making an application to the Court. Indeed, before any Court application is made the parties need to provide evidence that they have considered mediation as an option to resolve any dispute. However, sometimes a Court application is unavoidable, and if this is the case, then the party who wishes to make the application needs to complete a C100 Form. The Court will then process the application and list the case for a first hearing, where the Court will consider the dispute and what steps (directions) need to be taken in order for them to make a judgement.
More detail on the Court process in relation to Child Arrangement Orders can be found here.
What is a C100 Child Arrangement Order Form?
Can I have custody of the children?
It is important to note that there isn’t a “one size fits all” solution for separating families. Each family is different and the future arrangements for children will be influenced by a range of factors, such as the ages of the children, school requirements, funds available to meet basic housing needs and the wishes & feelings of the children themselves.
More information on the most common outcomes when it comes to child arrangements can be found here.
Can I have access to the children?
Section 1(2A) of the Children Act 1989 provides that there shall be a presumption, unless shown to the contrary, that the involvement of both parents in the life of a child will further the child’s welfare.
When deciding whether an order should be made, the Court will have regard to certain factors, including but not limited to:
- The child’s physical, emotional and educational needs;
- The wishes and feelings of the child involved;
- The likely effect of any change in the child’s circumstances;
- Any harm which the child has suffered or is at risk of suffering; and
- How capable each of the parents are in meeting the child’s needs
Obtaining advice from a children’s lawyer will help you understand how the Court is likely to view your situation and what the possible outcomes are.
What is CAFCASS?
CAFCASS stands for Children and Family Court Advisory and Support Service.
They represent children in Family Court cases in England and Wales, independently advising the Family Courts about what is in a child’s best interests by putting the needs, wishes and feelings of the child forward and ensuring that their voices are heard. They are independent of the Courts, social services, education and health authorities and any similar agencies. They have a duty to safeguard and promote the welfare of children who are going through the family justice system.
How much do contested children proceedings cost?
There is a Court fee of £215* for processing an application for a Child Arrangements Order.
During the course of proceedings, additional expenses may also be incurred is expert reports or specialist testing it ordered by the Court.
How much it will cost overall will depend on how quickly an agreement can be reached. If your case goes all the way to a Final Hearing without an agreement being reached then it is unlikely that the total cost be less than £10,000 plus VAT. This is in addition to the costs of any experts, such as barristers or psychologists (if required). The more complex a case is, the more likely it is that the costs will be higher. The earlier an agreement is reached, the lower the costs should be.
*correct at time of writing
What happens if I have to go to Court?
Applications for Child Arrangement Orders are initiated on Form C100, together with a MIAM “certificate”. When accessing the Court system, it may be appropriate to also complete Form C1A in circumstances where there are allegations of domestic abuse. If a matter is particularly sensitive, it may be necessary to ensure a parties’ contact details are not shared with another party, in which case Form C8 should also be submitted.
Once the application is processed by the Court, the Court will write to both parties with details of the first Court hearing – known as a First Hearing Dispute Resolution Appointment (FHDRA). Both parties would be expected to attend this hearing in person.
Prior to the FHDRA, the Court’s advisory service – CAFCASS – will contact both parties to discuss any immediate safeguarding or welfare concerns they may have. CAFCASS’ safeguarding report will be made available to the parties and the Court shortly before the FHDRA.
At the FHDRA itself, having considered CAFCASS’ safeguarding report, the Court will determine the points in dispute between the parents and set out what steps (directions) it wants each of them to complete before the next hearing. This may include sharing medical records or obtain reports on mental health, undertaking alcohol hair-strand analysis testing etc. Additionally, it is usual for the Court to also determine child arrangements on an interim basis, to be reviewed further at any subsequent Court hearing.
More information about what to expect when going to Court for a Child Arrangements Order can be found here.
Can my partner take the children on holiday?
If both parents have parental responsibility and there are no Court orders in place that contain restrictions, that neither parent can take a child on holiday outside of the UK without written consent from the other.
If there is a Child Arrangements Order in place that states that a child is to live with a certain parent, then he or she can take that child on holiday outside of the UK for a maximum of 28 days without obtaining written consent from the other parent. However, it is always recommended that you do let the other parent know your plans and ensure that they are happy with these in advance.
If only one parent has parental responsibility and there are no Court orders in place, then permission from the other parent is not necessarily needed. However, as mentioned above, it is good co-parenting to let them know.
In any scenario, if the other parent withholds their consent to any holiday plans unreasonably, then an application to the Court may be necessary. If a father does not have parental responsibility, then he can apply to Court and ask them to grant him parental responsibility, and he could then object to any holiday plans.
Does my partner have parental responsibility?
A child’s biological mother always has parental responsibility for the child. However, sometimes a child’s father or other parent does not have automatically hold parental responsibility. The child’s father would have parental responsibility if he has been registered as the child’s parent under section 10A(1B) of the Births and Deaths Registration Act 1953 since 1 September 2009.
Other third parties may also have parental responsibility, including:
- You are the child’s father and you were married to the child’s mother when the child was born.
- You are the child’s parent under section 42 of the Human Fertilisation and Embryology Act 2008 as you were the mother’s civil partner, or married to the mother, when the child was born.
- You are the child’s step-parent (married to or a civil partner of a parent with parental responsibility) and you have made a parental responsibility agreement with the child’s mother (and father if he also has parental responsibility).
- You have a parental responsibility order.
- You hold a Child Arrangements Order for the child.
- You are the child’s guardian, special guardian or have adopted the child.
- You have made a parental responsibility agreement with the child’s mother or other parental responsibility holders.
Can I move away with the children?
If you wish to move elsewhere and take your children with you, then you need the consent of the other parent in order to do so. If you can’t reach an agreement, then an application to the Court may be necessary (although other mediums of dispute resolution could be considered first).
Where an application to the Court has been made in relation to relocation, the Court needs to perform a balancing act between all of the factors that need to be considered. The fact that the reasons for a relocation are often very personal means that it is tricky to guess what the outcome of a Court application would be.
Do I need a Court order to see my children?
The short answer is no, you don’t. If you and your ex-partner can discuss child arrangements rationally between you and reach an agreement that you are both happy with, then there is no reasons for a Court order to be in place.
However, if you cannot agree or the child arrangements that you had in place no longer work for one of you and the other is not amenable to change, then it may be that you need to consider making an application to the Court so that an order can be made.
The children live with their mother, can she stop me from seeing them?
Your ex-partner cannot stop you from seeing your children unless, for whatever reason, it may cause a detrimental impact on your child’s welfare. If your ex-partner is attempting to prevent you from seeing your child, then you may need to consider making an application to the Court for a Child Arrangements Order unless you can reach an agreement between you.
It is always preferable for everyone concerned to reach an agreement outside of Court proceedings.
Do I have to attend mediation?
Mediation is a voluntary process and is not compulsory. That said, it is always best to try and resolve matters as amicable as possible between you and a Mediator can help you to see the point of view of the other and assist you in reaching an agreement swiftly.
If you wish to make an application to the Court in relation to child arrangements, then you have to show that you have at least considered mediation by attending a MIAM (Mediation Information and Assessment Meeting). If, for whatever reason, mediation is not the right forum for you and you ex-partner to discuss child arrangements, then the Mediator will sign a FM1 form stating as such, which can then be attached to your Court application.
Can my ex-partner stop me seeing my children now that I am in a new relationship?
If you have parental responsibility then your ex-partner cannot stop you from seeing your child or children if you are in a new relationship. However, it is feasible that your ex-partner may have concerns about the children meeting your new partner. If this is the case, try to discuss matters between you and reach an agreement in relation to when and how your children will be introduced to your new partner so that there is a clear plan.
If your ex is determined to stop your children from meeting your new partner, they may apply to the Court for a Prohibited Steps Order under the Children Act 1989. If they do this, they will have to convince the Court that meeting your new partner is not in the children’s best interests as it would have a detrimental effect on them. Such an application is not to be entered into lightly as it is likely to increase stress for everyone concerned, particularly the children.
The children say that they want to spend more time with me but my ex-partner isn’t listening, what can I do?
If the current child arrangements are no longer working for you or the children, then you should try to speak to your ex-partner about it first. If that doesn’t work then you can consider mediation as a neutral forum to discuss matters. Whilst you may have to pay for the mediation session, the costs of these should be less than going to Court. It will also be quicker as you won’t face any of the delays that the Courts are currently facing.
If neither of these options work, then it may be that you need to make an application to the Court in order to alter the current child arrangements. However, it is worth noting that the Court is unlikely to make any decisions on child arrangements if your children are over 16, as by this age they tend to be able to vote with their feet and make their own choices.
Do the Courts favour mothers?
Unfortunately there isn’t a clear cut answer to this question. The ideal situation is for a child to have a relationship with both parents, and for those parents to have a good co-parenting relationship with each other.
Each case should be considered on its own merits, having regard to the welfare checklist. Both the Courts and CAFCASS are striving to make sure that parental alienation doesn’t occur. Although society still prescribes to the ideal family unit of Mum, Dad and 2 children, that view is changing and therefore the Courts must also change.
Will my child’s wishes dictate child arrangements?
There are two scenarios that could come into play here – either a child will want to stop contact with a parent, or a child will want more contact with a parent.
The Courts are all to aware that very often a child will say what they think a parent wants to hear. Their wishes and feelings are important, and should be taken into account, depending on their age and ability to understand the situation. However, ultimately their wishes and feelings will not determine the outcome of any Court proceedings in relation to child arrangements. Generally, the Courts take a view that contact is in the best interests of a child and that both parents should be involved in their lives. Only in exceptional circumstances will the Court make an order refusing contact.
My former partner is turning the children against me, how does the Court deal with this?
Parental alienation is described as “the deliberate manipulation of a child by one parent against the other parent”.
Fortunately, true parental alienation is not a common factor in disputes between parents regarding child arrangements, but early intervention is crucial if parental alienation is suspected or alleged by way of an application to the Court. The Court can then look at the circumstances and, with the assistance of CAFCASS, investigate why a child may have turned against a parent and determine what is in the best interests of that child.
Parental alienation cases are often very complex and usually require reports from an expert, such as a child psychologist, in order to help find the cause of the alienation and how it can be resolved.
We have agreed child arrangements, but I don’t trust my ex-partner, can I have a Court order?
It is not possible to apply to the Court for a Child Arrangements Order simply because you do not trust your ex-partner to stick to the agreed arrangements. Hopefully it will be the case that any lack of trust will be misplaced and the child arrangements will run smoothly, but if your ex-partner consistently fails to have any regard to the agreement that you made and constantly changes the arrangements, then you can apply to the Court for an order to regularise child arrangements.
Can I stop my ex-partner from moving the children away from me?
You don’t have to agree to your ex-partner moving away with the children, but you need to be aware that if you oppose such a move, your ex-partner is likely to make an application to the Court for them to decide what should happen. Of course, there may be exceptional circumstances that mean that relocation would be detrimental to the children, in which case you can apply for a Prohibitive Steps Order.
The best thing to do initially is talk it through with your ex-partner and try and agree how you think contact could work if they move away, and possibly consider putting a Parenting Plan in place. Remember that the welfare of your children should be foremost in your mind during these discussions.
What is the best schedule for 50/50 parenting?
It is vitally important that the matters concerning the arrangements for children are not mixed with other disputes regarding divorce or finances. It is helpful if the parties can reflect on the criteria the court would use to make orders in the best interests of children, when determining their proposals for arrangements with their former partner. If arrangements cannot be directly agreed between the parties, consideration should be given to alternative dispute resolution, such as mediation, so as to avoid the costs and delays of Court proceedings.
What is the most common child custody arrangement?
It is important to note that each separating family is different and that there is never a “one size fits all” solution for all families. Future arrangements for children will be governed by a range of factors including the ages of the children, their schooling requirements, funds available to the parties to meet basic housing needs and the wishes and feelings of the children themselves etc.
It is important that children spend time with both parents where it is safe for them to do so. Of course, there are reasons why this may not be possible, such as one parent living a large distance away or having a shift pattern or work commitments that make regular, frequent contact challenging.
More information on the most common child arrangement outcomes can be found here.
Do men always get 50/50 child custody?
The answer to this question is very similar to the answer given above – there are many factors to take into account when considering how child arrangements and contact should be split and sometimes it isn’t as straight forward as splitting it equally.
If you are struggling to agree child arrangements, or would like to discuss any of the points raised in this article further, then speak to one of our child arrangement solicitors today for reliable and accredited legal advice. Hawkins Family Law are family law specialists, meaning we have years of experience with cases regarding child arrangements, family matters and more.
With divorce being such a potentially difficult topic to navigate and talk about, it can…
The highly anticipated and eagerly awaited no-fault divorce law changes come into effect from 6th…
We are delighted to have had 3 articles featured in online publications recently: Legal Brief…
New Year is always a time for reflection and the making of resolutions. I usually…
Applying for a divorce can be an extremely challenging and stressful time. Discussions about separation…
Deciding to get a divorce can be an emotionally difficult and challenging time for both…
Many people ask their family solicitor what they should or should not do during a…
One of the most common worries people have when getting divorced is what happens financially…
Between stimuli and response there is a space. In that space is our power to…
Unwelcome, although not entirely unexpected, news came this week that the Divorce, Dissolution and Separation…
A closer look at spousal maintenance & Joint Lives Maintenance Orders and how they are…
Surrogacy is when a woman carries a baby for someone else who is unable to…