Following separation, it is common for parents to reach an agreement regarding the arrangements for their child or children between themselves.
It is important to note that these informal agreements are not automatically legally binding, which means that either parent could breach the terms of the private agreement without any legal implications. Depending upon the circumstances of the cases, it may be recommended that any agreement made regarding child arrangements upon divorce or separation is made into a formal, legally binding agreement (known as a ‘consent order’) for it to be enforceable in the Family Court.
A consent order is a legal document that confirms an agreement. In relation to child arrangements, it can include details about how the children will be looked after, such as: living arrangements and time spent with each parent. Another means of describing a consent order would be a 'child arrangements order that has been reached by consent'.
Who can apply for a child arrangements order?
The child’s mother, father or anyone with parental responsibility (such as a stepparent or guardian) can apply for a child arrangements order.
Anyone without parental responsibility, like grandparents, can apply for an order, but they will need to obtain permission from the court first.
What is the process to obtaining a child arrangements order by consent?
Both parents must have reached an informal agreement regarding the child arrangements so a consent order can be drafted. This informal agreement must be in writing and clearly presented. The main agreements which should be outlined should include:-
- Who the child or children will live with and the timetable for this.
- Who the child or children will have contact with and the timetable for this.
- If there is any flexibility in the arrangements and an explanation of this.
- Arrangements in regard to travelling abroad for example for holidays and the any conditions attached to this.
Consideration should also be given to childcare costs, handover arrangements (such as time and location) and what should be done if either party is late or unable to care for the children.
This consent order will need to be signed and dated by both parents and attached to a C100 court form. The C100 form is an application for child arrangements order to be made under section 8 of the Children Act 1989.
Considering the C100 form itself, on Page 1 of the form, under “Additional Information Required”, there is a question which asks, “Are you applying for an order to formalise an agreement?”. This question is referring to a consent order so it should be ticked “Yes”.
Following completion of the C100 form it should be submitted with the draft consent order to the local family court along with a court fee of £232. Note: There is an EX160 (Fee Exemption) Form which can be submitted if the applicant is on low-income or in receipt of income-based benefits.
It is important to note that there is no legal requirement to attend mediation (MIAM) before applying to court for a consent order.
Is a solicitor required to draft a child arrangements order?
Although it is not a legal requirement for a solicitor to draft the informal agreement into a consent order, it is recommended in order to ensure that the agreement conclusive and all the legal formalities are satisfied.
How much does a child arrangements order cost?
The court fee for submitting the C100 application is currently £232 if court proceedings have not been issued prior to this. However, if there are already existing court proceedings then the cost for submitting a consent order would be £53. If independent legal advice from a solicitor is sought, then there will also be legal fees to consider. A costs estimate will usually be provided and it will largely depend on the extent in which the solicitor is involved with the negotiations and complexity of the arrangements.
How long does a child arrangements order last?
Generally, a child arrangements order will expire when the child concerned turns 18 years old unless otherwise stated in the order.
What will the family court consider whilst reviewing the consent order?
The consent order will be approved if the judge considers the arrangements to be fair and in the best interest of the child or children involved. The court will consider the feelings and wishes of the child, the effect of any changes on the child and the educational or special needs of the child. Once the consent order is approved it will become legally binding.
The Court may consider:
- Whether the child has suffered, or is in danger of suffering from any sort of neglect or abuse
- The parents’ capacity to provide for the child and meet their needs
- The limitations of the Court’s power to make changes to the child arrangements
However, if the judge decides that the agreement is not fair or in the child’s best interests then it can do one of the following:
- Change or amend the consent order.
- Make a new consent order which it considers the terms to be fair and uphold the best interest of the child or children involved.
The court is unlikely to substantively change an order made by consent without a short hearing with both parties in attendance.
Can you stop a child arrangement order?
If both parents agree, then alternative arrangements can be put in place. If there is no agreement between the parents, then an application to court can also be made to discharge an order already in place.
How can I enforce a consent order if it is breached by the other parent?
Failure to adhere to the terms of the consent order by either parent may result in breach of a legally binding order. This may have serious implications and could even be classed as contempt of court.
If a parent has breached the terms of the order, it is possible for the parent not in breach to revert back to the court and ask them to enforce the terms of the child arrangements order.
However, before the court must be satisfied that enforcing a breach is necessary and proportionate in the individual circumstances. The court will also consider the following:
- The effect of the breach of court order on any child it relates to
- The reasons for non-compliance and breach by the parent
- The welfare checklist to consider the impact on any child involved
- Whether CAFCASS needs to be consulted to try and reconcile going forward
- Whether the parents need to attend any dispute resolution programmes such as Separated Parents Information Programme (SPIP) to resolve the issues surrounding the breach of the order.
It is important to note that the court will not an enforcement order if it is satisfied that the parent responsible had a reasonable excuse for failing to keep to terms or arrangements of the order.
The court has a wide range of power it can exercise to enforce the following if it is satisfied that a breach of the order has occurred, such as:
- Mediation referral
- Varying the order itself to reconsider the child or children’s living and contact arrangements
- An enforcement order
- An order for compensation for financial loss suffered by the applicant
- A fine, community service or
- A prison sentence
Reaching a child arrangements order by consent can be a great way to start a co-parenting relationship with you former partner. For further advice about child arrangements orders please speak to a member of our Family Law team.
