In this blog post I explain what a Child Arrangements Order is and aim to answer some of the most commonly asked questions about them.
What is a Child Arrangements Order
A ‘Child Arrangements Order’ specifies:
- where a child lives
- when a child spends time with each parent
- when and what other types of contact take place (e.g.: phone calls)
Child arrangements orders replace ‘residence’ and ‘contact’ orders, although people who have existing residence and contact orders do not need to apply to replace them with child arrangement orders. They are made under powers granted by section 8 of the Children Act 1989.
Section 8 of the Children Act 1989 also provides for other orders (apart from Child Arrangement Orders) to be made if appropriate namely:
A Specific Issue Order – dealing with a specific issue of parental responsibility such as which school the child attends
A Prohibited Steps Order – preventing a person from doing something in relation to a child, such as preventing the child being taken out of the country or changing the name of a child.
Is a Child Arrangements Order legally binding?
Yes, they are legally binding Court orders and the route of the power to make the order can be found in Section 8 of the Children Act 1989.
Who can apply for a Child Arrangements Order?
The child’s mother, father or anyone with parental responsibility can apply for a court order.
Parental responsibility is essentially all the rights, duties, powers, responsibility and authority which by law a parent of a child has in relation to the child and his property. It is shared jointly between all married parents, even after a divorce, so long as the child is under 18 years old. Unmarried mothers automatically have parental responsibility. Unmarried fathers also have automatic parental responsibility if they are named as the father on the child’s birth certificate. If they are not named then they can acquire parental responsibility either by agreement with the mother of the child, or by order of the Court.
Some other people, such as grandparents, can apply for child arrangement orders too, but they will need to get permission from the courts first before they can make the application.
When are Child Arrangement Orders made?
The Court will only make an order in relation to children if there is a dispute. If parents are in agreement with the living arrangements for their children and the time the children see both parents, then there is no need to apply to the Court for such an order. However, if there is a dispute then a specific application has to be made to the Family Court for a Child Arrangements Order if a decision from a Judge is needed.
Do I always have to go to Court if there is a dispute?
No, there are alternatives. By way of example, mediation can be very helpful in sorting out differences of opinion in relation to children. A Mediator is neutral and does not advise either parent but will assist the parents in listening to each other, explore all the options in the best interests of the children and, ideally, reach a solution that is agreeable to all.
A Mediator can draw up a record of discussions and help the parents to confirm a Parenting Plan. This isn’t legally binding as it is not an order, but it provides a good framework for the parents to abide by. It can also often provide greater flexibility than a court order if that is what is required.
How do you apply for a Child Arrangements Order?
You must attend a meeting about mediation before issuing an application, except in certain cases (domestic abuse, for example). This is known as a ‘Mediation Information and Assessment meeting’ (MIAM).
If mediation is not suitable then complete the C100 Court form and send it to Court for issuing along with 3 copies and the Court fee.
The Child Arrangements Order process
Once the application has been issued CAFCASS (Children & Families Court Advisory & Support Service) will make some basic safeguarding enquiries with the Police and Social Services. You may receive a phone call from them to discuss whether there are any safety issues for you or the children.
Your case will be listed for a First Hearing Dispute Resolution Appointment (FHDRA) in the Family Court, when the Court will consider the issues and try and encourage the parties to resolve the matter by agreement.
If matters cannot be resolved the Court will make ‘directions’ as to what should happen next, examples being:
- You can both be asked to go to a MIAMs, if you have not already done so.
- You may be asked to each attend a ‘Separated Parents Information Programme’ course, which could help you find a way to make child arrangements work.
- The Court might order CAFCASS to prepare a report. Typically this will take about 12 weeks to prepare and if ordered the Court will ask you to come back to Court a couple of weeks after the report is finished.
- Sometimes there are factual disputes that need to be looked at at an early stage (for example domestic abuse allegations that are denied) and if so the court may list your case for a ‘Fact Finding Hearing’ when those disputed issues will be adjudicated upon.
- Statements and/or reports may be ordered (depending on the issues).
The Court is likely to list the case for a ‘Dispute Resolution Appointment’ which is an opportunity to try to resolve the matter by agreement. If this is not successful then normally a date for a ‘Final Hearing’ will be given.
Directions can be made along the way at any of the hearings and a hearing is a chance to review to see what else is needed to ensure the case is properly put before the Court.
What does the Court consider when granting a Child Arrangements Order?
The court will give the following three principles the highest priority (set out in section 1 of the Children Act 1989):
- The children’s welfare is of paramount importance (the ‘welfare principle’);
- The Court should have regard to the general principle that any delay is likely to prejudice the welfare of the child;
- The Court should not make an order unless it considers that doing so would be better for the children than making no order at all (the ‘no order principle’).
In deciding whether an order should be made the Court will have regard to what is often referred to as the ‘welfare checklist’, namely:
- The ascertainable wishes and feelings of the child concerned (considered in light of the child’s age and understanding);
- The child’s physical, emotional and educational needs;
- The likely effect on the child of any change in his or her circumstances;
- The child’s age, sex, background, any other characteristic which the Court considers relevant;
- Any harm which the child has suffered or is at risk of suffering;
- How capable each of the child’s parents, and any other person in relation to whom the Court considers the question to be relevant, is of meeting the child’s needs;
- The range of powers available to the Court under the Children Act in the proceedings in question.
The welfare checklist is also set out in section 1 of the Children Act 1989.
Section 1 (2A) of the Children Act 1989 provides there shall be a presumption unless the contrary is shown that involvement of both parents in the life of the child will further the child’s welfare.
The Family Court and Families Act 2014 sets out very specific procedures that need to be followed if an application has been made and the Court are under a duty as the matter continues to, at every stage, consider whether mediation or other non-court dispute resolution is appropriate.
How are Child Arrangement Orders enforced?
You can apply to the family Court for enforcement of a Child Arrangements Order if it contains a warning against breaking the order and has been broken without a reasonable excuse. You make the application on Form C79.
Options for enforcement are:
- a community-based order requiring a person to carry out unpaid work;
- an award of financial compensation from one person to another – e.g.: if the cost of a holiday has been lost as a result of a contact order being broken, the person who has lost the money can apply to the Court for a financial compensation order.
When does a Child Arrangements Order end?
The order will end when the child is 18 unless the Court makes the order for a set period of time ending earlier than the 18th birthday.
Such an order can also end on application to the Court using Form C100, or indeed on the making of another Child Arrangements Order which replaces the first order.
For more information or for help with making an application for a Child Arrangements Order, please contact us.
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