Family Lawyers specialising in legal advice and representation on children issues for divorcing or separated parents
If you are dealing with the difficult issue of ending your relationship with your child’s other parent, child arrangements order solicitors can help you. Having specialist family lawyers on your side will give you the representation you need to secure the best possible outcome.
A child arrangements order sets out important issues such as where your child will live and how much time they will spend with you. Ideally, you and your child’s other parent will agree on the details between you, but if this is not possible, a family law solicitor can help.
We look at how the courts make a child arrangements order and answer some frequently asked questions.
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What is a child arrangements order?
A child arrangements order is an order of the court setting out where a child will live and other matters, such as who the child will see. In the past, child arrangements have been referred to by different terms, including residence, custody and contact.
The courts are keen to reduce conflict in matters relating to children and no longer use the terms custody and residence. They prefer that a child has a meaningful relationship with both parents and will do all they can to ensure this happens.
Please note we are unable to offer legal aid and cannot represent clients in public law matters with regard to Care Orders or other proceedings involving Social Services.
Do I need a child arrangements order?
There is no legal requirement to have these kind of court orders if parents separate, divorce or even if they never lived together.
In fact the Children Act 1989 ( the legislation) goes further than that. One of its 3 main principles is the clearly named ‘no order’ principle). That states simply that “the court shall not make an order unless to do so would be better for the child than making no order”. And that means that the courts approach is, wherever possible to leave arrangements for children to their parents – unless a court order is really necessary. And that means that for the majority of children, these kind of orders simply are necessary.
But sadly separating or divorcing parents (and sometimes other important people in the children’s lives like grandparents) can’t always agree.
And where necessary, having a child arrangements order can be beneficial. These kind of orders can often avoid misunderstandings and disputes that could cause conflict in the future.
An order can, for example, give you and your child the certainty of knowing exactly what will happen each week.
And without an order in place, you may feel pressured to agree to different arrangements. Difficulties can often arise if you have not set out the original agreement in a legally binding document.
If you are able to agree on the contents of a child arrangements order with your child’s other parent, it is a relatively quick and straightforward process for a solicitor to ask the court to seal these into a binding order.
But do be aware, that on the other hand, if an order is too tight or prescriptive, then sometimes that itself can cause issues. Over time, relationships and schedules can change, especially as younger children grow up.
What goes in a child arrangements order?
A child arrangements order is tailored to your unique situation and can include a range of details. Issues commonly included are:
· Where the child will live
· Who the child will live with
· When the child will see their other parent
· How this contact will take place, for example, whether it will be a supervised visit or overnight stays
· How the child will stay in touch with each parent when they are not together – phone or video calls for example
A child’s parents must comply with the terms of a child arrangements order. Others who must also comply include anyone with parental responsibility for the child or who lives with the child and to whom the order says the conditions apply.
Who can apply for a child arrangements order?
Parents usually apply for child arrangements orders but other individuals may also be entitled to request an order if they have parental responsibility. This could include a guardian or a step-parent. In some cases, another relative, such as a grandparent, might be able to ask for a child arrangements order, but they would need the court’s permission to apply.
How do I get a child arrangements order?
The first step in getting a child arrangements order is to speak to an expert family lawyer. We can negotiate on your behalf to try and reach an agreement with your child’s other parent. Negotiation is usually the fastest and most cost-effective way of putting arrangements in place.
If we can agree on the arrangements, we can put them into a draft order and ask the court to approve them. If it does, it will seal them, creating a binding order.
If you and your child’s other parent cannot agree, the next stage is usually to consider family mediation.
Family Mediation and child arrangements
Here at Bonallack and Bishop, all of our family lawyers are big fans of family mediation. It often does a great.job – but it doesn’t work for everyone.
To minimise the number of cases coming before the court for a decision, successive governments have been strongly supportive of encouraging parents who can’t agree on arrangements of their children to attend family mediation.
In fact, the courts will not generally allow you to apply for a child arrangements order unless you and your child’s other parent have considered family mediation. The exception to this is where there are allegations of abuse or domestic violence or you have concerns about the safety of your child.
A family law mediator is a neutral expert (and best mediators are often qualified family lawyers as well) who can help couples deal with child disputes. They will be able to suggest options and compromises that you might not have considered.
If there is no reason not to consider mediation, you and your child’s other parent should attend an initial meeting – known as a Mediation Information and Assessment Meeting, referred to as a MIAM.
This meeting enables a family law mediator to explain the mediation process to you and your child’s other parent. You can attend together or, if you prefer, meet with the mediator on your own.
The mediator will go through how they can help you both agree on contentious issues. You will also have the opportunity to ask questions.
If you decide to proceed with mediation, you can usually expect a series of mediation appointments. These are likely to last around 90 minutes each. You may be eligible for a government voucher towards the cost of the sessions.
There is, however, one big difference between family mediation and a court hearing. A mediator does not have the power to impose a decision on you. This means that if you go through the mediation process, you can be sure you will not end up with an unwanted outcome. Any result will be one that you and your child’s other parent have agreed upon together.
As well as being a quicker solution than asking the judge for a decision, mediation can help you and your child’s other parent work together on difficult issues. This can assist you in building a reasonable working relationship and potentially reduce conflict, which will be helpful as you will both need to co-operate in the future as you raise your child.
You do not have to be in the same room with your former partner during the mediation process. If you prefer, the mediator can shuttle between two rooms, speaking to you each in turn.
Click here to read more about how Family Mediation can work for you
Asking the court for a child arrangements order
If you decide not to use mediation or it is impossible to reach an agreement, your solicitor can apply to the court for a child arrangements order.
A case will be put together on your behalf, setting out your position and what you want to happen. An initial hearing will take place and the court will consider its approach. It may want to take advice from the Children and Family Court Advisory Support Service (Cafcass) before deciding.
What form do I use to apply for a child arrangements order?
To apply for a child arrangements order, form C100 needs to be completed and sent to the court. You can do this online. There is a fee of £232. Help with the fee may be available for those on a low income.
The role of Cafcass in child arrangements
Cafcass is a public body that looks after the welfare of children and families involved in court proceedings. It will usually carry out basic checks before the first hearing to see whether there are any safeguarding or welfare issues. This will generally include a telephone conversation with each parent and contact with the police and local authority. Cafcass will then provide the court with a safeguarding letter stating its findings.
If there are no concerns, the court can decide whether it wants any further input from Cafcass. It may ask a Cafcass officer to work with you and your child’s other parents to see if you can reach an agreement.
What is a Cafcass report?
The court can also ask Cafcass to prepare a report to help it decide on the terms of the child arrangements order. This is known as a welfare report or a Section 7 report, referring to Section 7 of the Children Act 1989.
You will be allocated a Family Court Adviser (FCA). They will conduct a detailed assessment, looking at the issues in dispute.
Your FCA will meet everyone involved, including your child. Depending on your child’s age, they may write to them to introduce themselves and talk to your child alone. This could be somewhere neutral, such as at their school. They will not ask your child to decide on issues or to choose between their parents.
The FCA can also speak to other family members, teachers and health workers.
Once the FCA has finalised the welfare report, they will usually send you a copy unless the court has ordered otherwise.
Objecting to a Section 7 report
If there are factual inaccuracies in the report, we can ask the officer to rectify them. We can also ensure that the FCA and others have dealt with all of the court’s requests. For example, if the court asked the FCA to speak to certain individuals before preparing the report, we will ensure they have done so.
We will also check that they have considered all the points on the welfare checklist.
What is the welfare checklist?
When making an order regarding a child, the court will always aim to act in the child’s best interests.
The welfare checklist is a list of points the court should consider when making an order to ensure its decisions will be right for the child. The list is set out in Section 1(3) of the Children Act 1989 and is as follows:
· The wishes and feelings of the child, in light of their age and understanding
· The child’s physical, emotional and educational needs
· The likely effect on the child of any change in their 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
· The ability of the child’s parents to meet the child’s needs
· The powers available to the court
What is an interim child arrangements order?
An interim child arrangements order is one that the court can make during the court proceedings. More hearings may be needed before the court can make its final order. An interim order can set out what should happen in the meantime. It can state whom a child should live with and what contact they will have with their other parent.
How will the court decide child arrangements?
The court will use all available information to decide and always prioritise your child’s best interests. If it still has questions after reading the welfare report, it can ask the Cafcass officer or local authority officer to make further assessments and return to court with their response.
The main points of consideration are those included on the welfare checklist.
As well as making the order, the court can impose activity conditions requiring a parent to participate in a course or other activity to help with their parenting.
What is a family assistance order?
The court may make a family assistance order when making a child arrangements order. This order requires a Cafcass officer or local authority officer to advise, assist and (where appropriate) befriend any person named in the child arrangements order.
The officer will then work with the individual to help them establish, improve and maintain contact with their child.
The Cafcass officer who prepared the welfare report can suggest a family assistance order if they feel it is needed. The officer will consider the following when deciding if this type of order is suitable:
· Whether an order will improve the welfare and safety of the child
· Whether the officer can identify the disputed issues and put an achievable target in place to deal with them
· Whether the child’s parents are prepared to co-operate with the order and the Cafcass officer
· Whether the parents can separate their feelings from their child’s needs so that the order will be beneficial
· Whether the parents could deal with matters without the need for a family assistance order
· Whether the child has been able to explain their feelings and what they would prefer
· What other resources are available, such as input from family members
· Whether the officer needs to make reports during or after the term of the order
Both parents, as well as any other individuals involved, will need to consent to the making of a family assistance order. The aim is to help a family who may need ongoing assistance from Cafcass in dealing with child arrangements.
How long does it take to get a child arrangements order?
To be frank, unless it is a genuine emergency, it’s not quick. The time taken to get a child arrangements order can vary widely. If you and your child’s other parent can agree on the arrangements, then the court may be able to seal an order within six months.
It will take longer if you cannot agree and need mediation. If you need to go to court, your case could take up to two years to reach a final hearing, depending on your circumstances. These days, sadly family courts often have substantial backlogs, and you may have to wait for court dates.
Where the court needs to decide on the terms of the order, it may need several hearings. You and your child’s other parent may need to provide statements to the court, and Cafcass will need to prepare and present its welfare report.
There could be one or more interim hearings, including a fact-finding hearing and a dispute resolution hearing, and the court may decide to make an interim order. The judge will consider all the evidence at the final hearing, and you and your child’s other parent can usually give evidence. The judge will then make their child arrangements order.
Fully contested children hearings
Be aware that if there is a contested hearing before the judge, you are likely to have to give evidence. It’s not an easy process to go through.
However, even when parties have failed to agree outside court, it’s very common for them to eventually reach some form of settlement that they can both live with – which can be made into an order. If possible, this is often better for all parties.
If the relationship between parents were bad before a court hearing, hearing the other side give evidence rarely improve things in our experience.
Are there alternatives to negotiation and family mediation?
Other forms of alternative dispute resolution may be available to help you try to resolve your disagreements without going to court.
- Collaborative law involves roundtable meetings where you both attend meetings a collaboratively trained lawyer, and everyone discusses the issues face-to-face.
Our team includes a qualified collaboratively lawyer
Click here to read more about collaborative law. - Family arbitration is another option. It is a relatively recent innovation and is still not terribly well known. In general, it is similar to court hearings but privately arranged. And 1 of the big advantages of using arbitration when it comes to arrangements of children, is that if parents simply can’t reach an agreement, arranging an arbitration hearing will be much, much quicker waiting for a fully contested court hearing date. Do be aware, however, that any decision reached in arbitration will, unlike mediation, be binding on you both.
How long does a child arrangements order last?
A child arrangements order will usually last until the child’s 16th birthday unless the order states otherwise. For example, the order could specify that it should stay in place until a child is 18.
If the order only states where the child is to live, it will usually last until the child is 18.
What happens if a parent breaches a child arrangements order?
A child arrangements order is legally binding, and the court can impose penalties on anyone who breaches it. You should keep a record of any breaches. If they are minor, it is usually best to try speaking to your child’s other parent to see if there is a reason and whether you can settle matters amicably.
If it cannot, and the breaches occur repeatedly, a solicitor can represent you in taking action.
What are the penalties for breaching a child arrangements order?
If someone asks the court to deal with the breach of a child arrangements order, it has a range of options, including:
· Finding the parent in contempt of court and fining them, requiring them to carry out community service or, in extremely serious cases, imposing a prison sentence. Fortunately things really go that far – though it has been known exceptional cases
· Changing the child arrangements order, if this is in the child’s best interests
· Requiring the non-compliant parent to attend a programme or class to help them with compliance in the future
· Allowing a parent who has lost out on time with their child to have extra time with them to make up for this
· Ordering that the parent in breach of the order pays compensation to the other parent if they have lost out financially
· Requiring the parent in breach to pay the other party’s legal costs
