When parents separate, it can sometimes lead to a breakdown in communication and they may no longer be able to agree on arrangements for their child.
In the past, the court regulated these kinds of disputes through ‘residence orders’ or ‘contact orders’. However, since 2014, courts have adopted ‘child arrangements orders’ as it was felt that the previous terms were no longer appropriate, often fronting the perception that the parent granted a residence or contact order had somehow ‘won’.
What is a child arrangements order?
A child arrangements order sets out who is responsible for the care of the child. The order can set out who the child lives with, where they live, and when and how they will spend time with both parents. For example, the order might specify that the child spends weeknights in the family home with mum and weekends with dad.
Who can apply for a child arrangements order?
The following can apply without permission from the court (this list is not exhaustive):
- The child’s parent, guardian or special guardian
- The child’s step-parent
- Someone with parental responsibility for the child
- Anyone named as the person the child lives with in a child arrangements order that is in force
- Anyone who has lived with the child for at least 3 years
If you do not fall within one of the categories mentioned above, you may need to apply to the court for permission to apply for a child arrangements order.
The process for applying for a child arrangements order
Step 1
If you are considering applying to court for a child arrangements order, please note that you are required to attend a Mediation Information and Assessment Meeting (MIAM). The aim of this meeting is to explore whether the dispute relating to the child can be resolved by mediation. If the case is not suitable for mediation then the mediator will allow you to start the court process.
To apply for a child arrangements order, a form C100 must be completed and sent to court in triplicate with a court fee (this is currently £215).
Step 2
The court will issue the application to both parties and the party who has not submitted the application (i.e. the respondent) will need to sign and send an acknowledgment form to the court prior to the first hearing to confirm they have had sight of the application. You will also receive the details of the first hearing.
At this stage, CAFCASS (Children and Families Court Advisory and Support Service) will also start to make some general safeguarding enquiries with the police and social services. Both parties will be contacted by CAFCASS for an initial conversation.
Step 3
The First Hearing Dispute Resolution Appointment (FHDRA) will be held. The court will consider the safeguarding information it is presented with and the parties will be encouraged to try and resolve the dispute concerning arrangements for the child by agreement. If successful at this stage, the court will make a final order and the matter will come to an end.
However, if an agreement is not reached with the other party, the court will hear the parties position statements and make further directions to progress the case. For example, it might request that each party provide a witness statement, or request that a letter be obtained from the school to determine whether either party’s behaviour is adversely affecting the child, or, if a party raises welfare concerns then the court may order CAFCASS to prepare a report.
If there are factual disputes between the parties, for example, one party might allege domestic abuse allegations and the other may deny them, then the court may order that a separate hearing take place to deal with this issue first. This is called a Finding of Fact hearing.
Step 4
Once the parties have complied with the directions set at the FHDRA, a further hearing will take place. If matters can be resolved at this stage, a final order will be made. If there is a continued dispute, the matter will be listed for a final hearing.
Step 5
Both parties will be required to give evidence at a final hearing and will be given an opportunity to challenge the other party’s evidence by asking them questions. If CAFCASS were ordered to provide a report at an earlier stage of the case then that officer will also attend the final hearing and provide his/her recommendations.
The judge will listen to all of the evidence provided and make a final order.
Factors a court will take into account when determining a child arrangements order
The best interests of the child are paramount to the court and it will use the welfare checklist to consider the follow factors:
- The wishes and feelings of the child concerned dependent on their age and level of understanding
- The child’s physical, emotional and educational needs
- The likely effect on the child if circumstances changed as a result of the court’s decision
- The child’s age, sex, background and any other characteristics which will be relevant to the court’s decision
- Any harm the child has suffered or may be at risk of suffering
- The capability of the child’s parents (or any other person the courts find relevant) at meeting the child’s needs
- The range of powers available to the court in the given proceedings
Enforcing a child arrangements order
A child arrangements order is legally binding. This means that if the order is breached by a party then they will be in contempt of court and could face enforcement action.
A common-sense approach to breaches should be applied. For example, if the other party is a little late in picking up the child on a couple of occasions but they have provided a valid reason then a court is unlikely to consider enforcement action. However, repeated minor breaches and major breaches may need to take a different course of action.
In the first instance, it is a good idea for parties to resolve the breaches directly with each other to avoid the stress, costs and time related to court proceedings. If this option is not suitable, mediation with a third-party might be effective. However, if these approaches are unsuccessful then court might be the most appropriate option.
An enforcement order application is made on a Form C79. The application is dealt with without delay and a hearing will be listed usually before the judge that has dealt with the child arrangements order 20 working days after the application has been issued. The court will consider a range of factors in determining which action it will take, this includes, but is not limited to:
- Whether the facts of the alleged non-compliance are agreed – if they are not agreed a separate hearing may be listed to deal with this issue.
- The reasons for non-compliance.
- The wishes and feelings of the child.
- The Welfare checklist
The court has a range of powers to deal with non-compliance of its orders. This includes, referral of both parents to a separated parents information program or mediation, unpaid work, a fine, an order for compensation where one party has suffered financial loss as a result of the other party’s breach and in more serious cases, a variation of the child arrangements order.
Ending a child arrangements order
A child arrangement order will usually end when the child reaches 18 years of age unless the court has made an order for it to end earlier.
The ongoing pandemic has presented many challenges to child arrangements over recent months with many parents confused as to whether the other parent is still allowed contact with their child given government restrictions and self-isolation advice. However, the government has clearly indicated on numerous occasions that none of the restrictions prevent children from moving between separated parents, provided they are not self-isolating.
If you would like to find out more about child arrangements, please contact a member of our Family Team would be happy to assist.
