This insight concentrates on the legal position in England and Wales.
When the Children and Families Act came into force in 2014, the Act introduced us to new terminology and the 'child arrangements order'. It replaced court orders that the family law profession had previously called 'residence' and 'contact' orders, and before that, 'access' and 'custody'.
A single child arrangements order sets out arrangements about
who a child should live with, spend time with and have other types
of contact with and when these arrangements should take
place.
The Government aimed to "encourage separated parents to adopt
less rigid and confrontational positions with regard to
arrangements for their children."
This insight concentrates on the legal position in England and Wales. Find out more about child arrangements in Scotland.
What is a child arrangements order?
The most common child arrangements orders are:
- A 'lives with' order (previously called 'custody' or 'residence') – used to regulate with whom a child should live
- A 'time spent with' order (previously called 'access' or 'contact') – used to regulate time spent by a child with people who they do not live with
- A 'prohibited steps' order - used to prevent one parent from taking certain action without the other parent's consent. A common use of this order is to prevent one parent from taking a child abroad, taking a child out of school or to prevent a change of surname
- A specific issue order - which allows the court to make a decision on a disputed point such as what school a child should attend, whether a child should be known by a particular name, have a particular operation or what religion a child should adopt
All of these orders will usually last until a child is aged 16.
Other orders may relate to child relocation, whether within the jurisdiction or moving abroad, parental responsibility, special guardianship, child abduction and/or financial provision for children.
Who can apply for a child arrangements order?
The Children Act 1989 sets out who may make an application to the court in relation to a child, and in some circumstances, permission or 'leave' from the court may be required before an application can be made.
It may sound obvious, but issues such as who is the child's legal parent, and who holds parental responsibility for a child, will have a bearing on whether an application can be brought automatically, or only with the prior permission of the court.
Often child arrangements orders are sought by extended family members, such as grandparents or step-parents, who probably do not hold parental responsibility.
Who is a legal parent and who has parental responsibility?
There are strict rules governing who will be considered the legal parents of the child and who will have parental responsibility.
Most parents will automatically be the legal parents of their child and will also have parental responsibility. Certainly, in most cases the two go hand in hand.
It is, however, possible to be a legal parent without parental responsibility, and conversely for someone to have parental responsibility but not be the legal parent.
Families created by non-traditional routes, such as assisted reproduction, donor conception, surrogacy, often by LGBTQ+ couples, can result in uncertainty about the legal position for those involved so far as their legal status to the child is concerned. The same applies for blended families and step-parents.
Common issues may arise if those with parental responsibility cannot agree matters between themselves and in rare situations, parental responsibility can even be terminated.
How to apply to court for a child arrangements order
An application form (the C100) setting out what order is sought, together with brief details of the issues, is submitted to the court, together with a court fee. Once the application is processed and issued by the court, it will have to be served on the other parent/party so that they know about the court hearing and the application that has been made.
Cafcass will undertake safeguarding checks with the relevant agencies before the first court hearing, which is called a First Hearing Dispute Resolution Appointment (FHDRA).
At this hearing, the court and a Cafcass officer will consider the case and try to assist the parties to reach a compromise.
If this is not successful, the court will consider what further information is required in order to reach a solution which could include:
- Statements from the parties setting out their respective cases
- Preparation of a report by Cafcass, local authority or independent social worker
- Preparation of a psychologist's report
- Drug or alcohol tests
If allegations are made that are in dispute, such as domestic abuse or parental alienation, where the outcome could impact the welfare of a child, the court may order a fact finding hearing.
Once the evidence has been gathered, if agreement is still not
possible, there may be a dispute resolution appointment. If still
unsuccessful in reaching an outcome, a further, final hearing will
take place, when the court will make a decision, usually after
hearing evidence from all concerned.
See our flow chart highlighting the steps in the child arrangements programme.
Can emergency applications be made?
Yes. If a case is urgent, an application can be made, and the court will determine the degree of urgency and how quickly to list a first hearing.
How are decisions made?
In deciding whether to make an order, the child's welfare will always be the court's paramount concern. This is called the 'welfare principle'. In each case, the court will undertake a detailed review of what is in the child's best interests.
The court will apply a checklist of factors which must be taken into account:
- The wishes and feelings of the child
- Their physical, emotional and educational needs
- The likely effect on the child of any change in circumstances
- The child's age, sex, background and any other relevant characteristics
- Any harm that the child has suffered or is at risk of suffering
- How capable the adults involved are of meeting the child's needs
At what age will the courts listen to a child?
The court must always consider the child's wishes and feelings in accordance with the checklist set out above.
As children grow and mature, their ability to articulate their views and opinions increases. The court will consider whether the child is competent to understand the nature, purpose and consequences of the issue in question.
Even if a child is able to clearly express their wishes and feelings, the court continues to have the final say.
As such, there is no legal position allowing for a child to decide for themselves whether to refuse to see their parent. Each case would be determined on its facts, and a parent, if bound by a court order to promote contact, should do their best to adhere to it, or seek legal advice and a variation of the order if circumstances are such that it is difficult to do so.
Is there such thing as a typical child arrangements order?
No, as every case is determined on its own facts, and the welfare of the particular child or children who are the subjects of that application, there is no standard formula.
However, there are some arrangements that work well for many families, and legal advisors can help by suggesting ideas that might work in that child's best interests.
Is a court order always needed?
No – not always.
Where Children Act proceedings are underway, it is highly common for child arrangements to be resolved by consent (sometimes at the court room door prior to a final contested hearing), in which case the proposed agreement would be submitted to the court for approval and would, once sealed, have the force of a binding court order.
It is far less common for parties to submit an agreement to the court for conversion into a binding court order when parents agree arrangements between themselves without having had to issue court proceedings.
Although the current application form dealing with applications for child arrangements orders, specific issue orders and prohibited steps orders (the C100) does make provision for a party lodging a consent order, the process is rarely used.
How are child arrangements enforced if there is a breach?
Where a court order is in place, an application can be made to the court for enforcement.
In the event that the breach is admitted or found, the court has a wide range of orders, to include:
- Referring the parents to a Separated Parents Information Programme
- Varying the order – crucially, this can alter the existing contact provision or even the living arrangements of the child
- An enforcement order, to include an order for unpaid work
- Order for financial compensation
- Committal to prison
- A fine
If no court order is in place, the above options for enforcement are not available. However, there are alternative routes to consider such as a strongly worded solicitors' letter, mediation with a view to addressing those elements of the agreement which may perhaps be causing difficulties, or an application to the court.
Can a child arrangements order be changed?
Yes, by agreement (possibly captured in a consent order to record the new arrangements) or by way of an application to the court if matters are not agreed. The court will consider whether to amend the arrangements for a child, based on the same considerations identified above of what is in the child's best interests/welfare at that time.
The process is outlined above.
In some circumstances, if a party brings multiple, vexatious, applications to the court, the court can consider imposing a bar on their being able to bring a future claim. These cases are rare and legal advice should be sought.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
